How Bad Prosecutors Cause Bad Policing

Prosecuting abusive cops is the least that district attorneys can do.

Baton Rouge police in riot gear move in on protesters for a second night in a row on July 9, 2016 in Baton Rouge, Louisiana.

In the aftermath of the Alton Sterling shooting, Baton Rouge police in riot gear move in on protesters, July 9 in Baton Rouge, Louisiana.

Mark Wallheiser/Getty Images

What responsibility do district attorneys have for fixing broken policing practices that lead to tragic and infuriating deaths like those of Philando Castile and Alton Sterling? “Prosecute bad cops,” goes the refrain. But top prosecutors bear far more responsibility for police misconduct than prosecuting officers who abuse, injure, or kill community members. The decision to indict is only the final step in a prosecutorial process that tilts in cops’ favor in many little ways that are largely beyond public view. Without greater scrutiny of their day-to-day practices, prosecutors will continue to enable police abuse. Indictments and prosecutions of cops—if and when they happen—always come after the fact and tend to reflect a purely punitive approach to harmful behavior that criminal justice reformers appropriately decry in other contexts. It’s time for a new approach.

From where prosecutors sit, as the most powerful actors in the criminal justice system, they have a bird’s-eye view of police conduct. They review arrests made by police before deciding to proceed with prosecutions. They work closely with police officers on investigations. They rely on officers to interview key witnesses, gather evidence, supervise cooperators and informants, and testify in court. What prosecutors do with all this information powerfully influences policing, for better or worse, in two critical areas.

First, consider what prosecutors do when encountering police misconduct. Many staff prosecutors will tell you off the record that they know who some of the bad cops are. Taking aggressive action in response to early warning signs can prevent future injury or death. Elected district attorneys should require staff to report police misconduct whenever it is encountered and provide them with protected channels for making those reports. They should have systems in place to share concerns regarding officer credibility before they make decisions about whether to proceed with prosecutions. They should require that any concerns about officers, and any supporting information, be shared with defense attorneys. Any such measures would no doubt provoke fierce resistance from police unions and other officials who oppose reform. Elected district attorneys should be ready to stand their ground on these policies. And they should be supported in doing so.

But many top prosecutors fail to do any of these things. District attorneys are notorious for rewarding staff for obtaining convictions above all else. This “ends justifies the means” culture creates a code of silence among prosecutors regarding cops who make bad arrests, use excessive force, or lie in court. Staff prosecutors have no incentive, and may even face retaliation, for flagging bad cops or for freely sharing information with defense counsel that might cast doubt on the officers’ credibility in the case. Even though prosecutors probably know as much or more about bad officers than anyone else in the criminal justice system, much of that information is simply buried.

Second, consider the critical moment when prosecutors “screen” an arrest before deciding whether to prosecute the case. In large cities, prosecutors may review hundreds of arrests every day. Each arrest that is accepted for prosecution sends the message to the arresting officer that this was indeed a good arrest and that the behavior in question does indeed deserve the attention of the criminal justice system. Each arrest that prosecutors turn away discourages bad practices from occurring in the future, especially if the district attorney has a policy—as some prosecutors do—that requires prosecutors to notify the arresting officer and the officers’ supervisor each time a case is declined.

Prosecutors should obviously be turning away cases that lack enough evidence to show a crime was committed. But they have much broader discretion than that. They should also proactively refuse to prosecute arrests that involve aggressive and unconstitutional policing, like excessive force, without waiting for defense counsel to raise these issues. They should toss out certain violations when the underlying arrest data reveals that policing decisions are causing significant and unjustified racial disparities. They should refuse arrests that stem from issues such as homelessness, mental illness, and substance abuse—issues that would be far better (and more cheaply) addressed outside the criminal justice system

Many already are taking such steps. In Brooklyn, District Attorney Ken Thompson, elected on a mandate to institute fairer and more just prosecution practices, announced he would stop prosecuting some marijuana arrests because, he noted, “obtaining a conviction against the defendant does not advance public safety with fairness and justice, and, indeed, might well sabotage that goal.” Similarly, Milwaukee’s top prosecutor stopped prosecuting drug paraphernalia charges after finding severe racial disparities in those police arrests. A number of district attorneys have also steered away from criminalizing school misconduct, sending a signal to law enforcement that school misconduct by kids is better handled by school officials than the justice system.

Far too many elected district attorneys, however, have simply abandoned their duties as gatekeepers to the criminal justice system, letting in all sorts of cases that should never be in the criminal justice system in the first place. They let inexperienced staff screen cases. They provide little guidance on what cases to decline. These district attorneys are giving police a green light to make any arrest knowing that it will likely be prosecuted, no matter how unjustified or unwise.

The idea that prosecutors must prosecute all arrests made by police is as wrong as it is out of touch with the reality of our criminal justice system. Prosecutors are constantly making choices about what cases to prosecute and where to prioritize limited resources. When elected district attorneys direct staff to prosecute low-level drug arrests stemming from traffic stops, instead of focusing on the stunningly high number of untested rape kits and unsolved sexual assault cases, that is a choice. When elected prosecutors direct their staffs to uniformly prosecute arrests for property crimes that police bring to them despite the fact that doing so clearly exacerbates racial disparities, that is a choice. When district attorneys agree to criminally prosecute students rather than allowing acts of adolescent immaturity to be addressed in the educational system, that is also a choice—one with life-altering consequences for the children involved.

These two prosecutorial practices—ignoring bad policing and accepting far too many cases for criminal prosecution—foster the conditions that lead to racially biased, violent, and all too often deadly policing. These prosecutorial practices almost certainly have more impact on policing than the question of whether prosecutors bring criminal charges against a bad cop in any one individual case.

Changing these policies will be hard—even harder than persuading prosecutors to indict and prosecute abusive officers. But doing so would enshrine prosecutors’ duty to detect and prevent police abuse and perhaps start creating some much-needed daylight between the prerogatives of the police and a prosecutor’s independent duty to seek justice. To attack the scourge of bad policing only by prosecuting bad cops merely asks prosecutors to recapitulate the same punitive approaches against police officers that have destroyed so many communities. By comparison, changing these underlying practices would be a step toward reducing police abuse on the front end by changing prosecutorial incentives, not just reinforcing the same dehumanizing and punitive conventions that have dominated prosecutors’ offices for decades.

The public has a role in all this. We can demand that prosecutors implement these policy reforms. We can support district attorneys who do so voluntarily. We can demand that state policymakers pass laws requiring local prosecutors to develop public standards for police oversight and that they support sentencing reforms and other changes to the criminal laws that will shrink the dragnet of the criminal justice system that has given prosecutors so much power. Let’s change the game so that prosecutors must play a proactive role in reducing dangerous and inequitable policing—not just ask them to heed calls for more prosecution.

The next time a young person of color dies in an encounter with police, we should ask much more than whether the police will be indicted and prosecuted. We should ask whether that incident was the foreseeable outcome of prosecutorial practices that facilitated police misconduct and overcriminalization for decades. We should ask whether the long-term path toward justice for victims and survivors of police violence requires us to change these long-standing practices just as surely as it demands we hold the perpetrators accountable.