Our System for Prosecuting Cops Is Broken

Here’s a better way to pursue justice when police officers kill in the line of duty.

Dec 4
A protester hold up her hands in front of the NYPD as she and others block traffic on the West Side Highway during demonstrations on Dec. 4, 2014 in New York City.

Photo by Timothy A. Clary/AFP/Getty Images

The decisions not to charge Ferguson police officer Darren Wilson and Staten Island officer Daniel Pantaleo should make this much clear: Our government is ill-equipped to handle cases where a cop kills a fellow citizen in the line of duty. The criminal justice system’s default setting is to give the overwhelming benefit of the doubt to the officer. That’s a problem for the public, of course, but also, in some cases, for the police. A system that is biased in the cop’s favor gives him the legal sanction to take a life. What it can’t do, however, is provide the moral authority for the government to justify that officer’s actions to a rightfully skeptical public.

So, the system is broken. How exactly should we fix it? A number of promising options have already been floated, most notably proposals either to appoint a special prosecutor to investigate police-involved killings or to shift that responsibility to the state attorney general. Both would put some much-needed distance between the officer being investigated and the officials doing the investigating. But neither would address the core problem of a system that is tasked with coming to a conclusion about guilt and responsibility, but not with figuring out what actually happened.

Our legal system is designed to absorb complex stories and spit out oversimplified verdicts: indictment or no indictment, guilty or not guilty. When the St. Louis County grand jury returned a “no true bill” against Darren Wilson, all the jurors were saying was that they didn’t believe there was enough evidence to indict the officer in the death of Michael Brown. From that single conclusion came the de facto narrative that Wilson was justified in killing Brown because he felt he had no other choice but to open fire. Likewise, we can only speculate why the Staten Island grand jury ultimately decided against indicting Pantaleo. Nevertheless, the implicit conclusion we’ve been left with is that the jurors believed that the officer didn’t intend to harm Eric Garner when he put him in a chokehold.

How do we resolve this disjoint between a binary system that sees things only in black and white and the public’s need for an honest investigation of the shades of gray in between? One little-discussed option comes from Paul MacMahon, a law professor at the London School of Economics. He argues in a forthcoming Yale Law & Policy Review article that the solution may be an inquest, a quasi-judicial proceeding with medieval roots that has largely fallen by the wayside in the United States. Inquests—which are still common in England and Ireland—are called in the aftermath of an unexpected or unusual death. Typically, a jury, with the help of a judge or coroner, seeks to establish the facts of the case but, importantly, has no legal authority to indict or convict. Think of this as akin to a civilian review board, but with more power, a clearer task, and an actual platform to make sure its conclusions are heard.

How would such an inquest work? MacMahon proposes launching one automatically anytime a police officer kills someone in the line of duty. Having either a judge or coroner lead the jury would remove the apparent conflict of interest of a district attorney investigating an officer who he relies on to do his job. The inquest would have the power to compel witnesses to testify under oath, but unlike a grand jury, the proceedings would play out in public. The bigger wrinkle, though, is that the jury would have no power to decide the question of criminal or civil liability. The findings wouldn’t necessarily even be admissible as evidence in a court of law. Prosecutors would still be the ones to decide whether to take the case to the grand jury; the grand jury would still decide whether to indict the officer. But an inquest would bring a heavy dose of public accountability. In England, for instance, when an inquest concludes a homicide was an “unlawful killing,” the state doesn’t have to prosecute the case. If it chooses not to, however, it has to formally explain that decision.

The inability of an inquest to bring charges itself may sound like a weakness, but it’s what makes the process so valuable. Because the panel wouldn’t be preoccupied with the guilty/not guilty or indictment/no indictment binary, it would have more leeway to pursue the facts wherever they lead. “The inquest, more than any other institution, is charged with pursuing the truth—sometimes including the moral truth,” MacMahon writes. Inquests don’t just ask whether someone’s actions were justified in a legal sense, he says; they ask “whether or not a person’s conduct was justified in distinct and important ways from the question of whether or not the person should be held criminally responsible or liable to pay damages.”

In the case of Wilson or Pantaleo, then, an inquest could try to answer not just whether the officer was legally justified in his use of force, but whether the officer was right in a larger sense to do so. There’s no guarantee the inquest’s jurors would be able to settle that question once and for all, of course, but simply publicly attempting to would be a big step forward for a government that is struggling to convince communities of color that their lives matter in our criminal justice system.

The benefits of an inquest don’t end there, either. As MacMahon argues, the proceedings would provide another chance to root out systematic police failings and to make credible recommendations to fix them. For wrongful deaths, the inquests would have an agenda-setting function, making sure cases stay in the news cycle so there’s a chance to push for reforms or pressure officials to prosecute. Just as important, an inquest would be invaluable for those officers involved in killings that are truly justified. The public investigation wouldn’t stop at probable cause or even reasonable doubt. It would provide the rare chance for an officer to be fully vindicated in the eyes of the public.

I’ll add two of my own benefits on top of the ones that MacMahon notes. First, making an inquest automatic in the aftermath of a police killing would send a clear message to officers that they will have to answer for their actions every single time they take a person’s life. That won’t stop an officer from pulling the trigger if his life is in danger, but it may make him think twice when it’s not. Second, automatic inquests would provide the public with something the government has so far been unwilling to provide: a definitive tally of just how many lives police officers take each year.

That’s not to say that an inquest would be a panacea in every case. It wouldn’t end what President Obama calls the “simmering distrust” between predominantly white law enforcement agencies and the communities of color they police. And it’s unfair to expect that anyone could provide definitive answers about exactly why an officer took a citizen’s life or whether he truly had no other choice. But an inquest wouldn’t need to answer those questions to be a success. At this point, just asking them in a transparent way would represent a huge amount of progress.