Police reform discussions and efforts have been ongoing for the past 8.5 years following Ferguson in 2014 and certainly the murder of George Floyd in 2020. One of the proposals that has garnered a lot of attention and some tangible policy movement is “independent or special prosecutors” in cases of police use of deadly force. While critiques of conflicts of interests and the close ties between local prosecutors and police agencies are nothing new, the fatal shooting of Michael Brown by then-Ferguson police officer Darren Wilson became a rallying cry for such independent investigations. Remember that a whirlwind of questions surrounded the impartiality of the St. Louis County District Attorney at the time – Bob McColloch. His father was a police officer who was killed in the line of duty. Many doubted his ability to present fair and relevant information during the grand jury proceeding, which ultimately decided not to indict Wilson. It led to public and political debate and, ultimately, a number of states adopting formal policies and legislation that mandate “independent and/or special” prosecutors to conduct investigations and panel grand juries in cases of deadly force. Independent or special prosecutors have been recommended by both the President’s Task Force on 21st Century Policing and among activist groups like Campaign Zero.
President’s Task Force on 21st Century Policing (2015).
Campaign Zero.
At the time in 2014, Connecticut was the only state that had a law on the books. Beginning in 2012, the law requires a special prosecutor – authorized by the state’s Division of Criminal Justice – to investigate and potentially prosecute cases involving police officers using deadly force. Since then, Wisconsin, Utah, Maine, New York, and New Jersey have all followed suit with most taking the form of the state’s office of the attorney general stepping in as opposed to county prosecutors/district attorneys doing so (the status quo in many places still). Some are incredibly narrow, such as New York and California, and only trigger an independent or special prosecutor in incidents resulting in the deaths of unarmed citizens or if there is a question whether the deceased was armed. Others are a bit broader and capture all fatalities at the hands of law enforcement throughout the state or even all cases where deadly force was used (i.e., all firearms discharges) – regardless of whether the person lives or dies.
New Jersey’s law mandating independent or special prosecutors was signed by Governor Phil Murphy on January 30, 2019. It moved investigations into police-caused deaths from county prosecutors to the state attorney general’s office and requires that cases be presented to a grand jury. It has now been four years since the law went into effect, and folks at NJ.com/NJ Advanced Media just released a special report. You can read it here. It is long and thorough, but I encourage you to check it out if you have the time/interest. Here’s what their lengthy investigation found:
75 police-involved death investigations (29 remain in-progress and undetermined).
Of the 46 investigations that have been concluded, only one led to a grand jury indictment of an officer – not for murder but for official misconduct.
The investigations typically take 2 years to complete (comparable to the amount of time investigations in Maine take).
The article provides the perspectives of families who lost loves ones. They are upset about the new process and indicate that it lacks transparency, is too lengthy, and fails to hold officers accountable. Interestingly, there has been a shift in perceptions among two camps over the past four years. Activists, who once championed the change and were enthusiastic about the new law, are now upset. Police union officials, who once denounced the new process, are happy.
I was asked to weigh in on the topic from lead author Riley Yates. When doing some digging in preparation for our interview, I noticed a few things. Here are my thoughts, and they apply to independent or special prosecutors broadly (not necessarily specific to the NJ law):
1) We know VERY little about the impact of independent or special prosecutors on investigations into and charging behaviors in cases related to American police. A cursory search only produced law review articles, which tend to be theoretical in nature. I could not find any empirical research.
This is understandable since it is unclear to me how one would possibly test the impact on investigations and charging (or lack thereof). For instance, it is incredibly rare for a police officer to be charged with murder/nonnegligent manslaughter or a less culpable (i.e., involuntary) offense in a deadly force or fatal encounter. The base rates are low nationally – let alone if we are focusing on a state or two at a time. One can take a look at places that have made changes, such as moving investigations from county prosecutors to the state’s attorney general, and examine any differences before and after. Fortunately for researchers, there is the Henry A. Wallace Police Crime Database housed at Bowling Green State University: a project created by Professor Philip M. Stinson. It includes “summary information on 15,200 criminal arrest cases from the years 2005-2017 involving 12,465 individual nonfederal sworn law enforcement officers, each of whom were charged with one or more crimes.” Connecticut made their changes into police investigations in 2012 – allowing for ample time both before and after. Still, upon a search throughout the state for “murder and non-negligent manslaughter” and “negligent manslaughter”:
1 officer was charged with murder and non-negligent manslaughter in 2006 (acquitted).
4 officers were charged with negligent manslaughter: one in 2007 (no case disposition reported), another in 2009 (acquitted), one in 2010 (off duty; convicted), and one 2012 (convicted).
You can see how difficult it is going to be to test this type of police reform in any meaningful way.
2) I am starting to become skeptical that independent/special prosecutors will result in any major changes, particularly when grand juries are involved in deciding to bring charges or not. Grand jury proceedings are largely secretive with very little information divulged to the public. They are black boxes and we have no clue what information jurors are presented. In rare instances, some knowledge has been shared with the public/media and we see stark differences in how prosecuting attorneys have performed.
Take the death of Breonna Taylor in Louisville as one example. Kentucky Attorney General Daniel Cameron presented information to a grand jury, which brought an indictment on just one officer – Brett Hankinson – for wanton endangerment for firing into an adjacent apartment. When explaining the lack of charges for any of the other police officers in her death, Cameron noted that the decision was “ultimately” in the grand jury’s hands. However, three of the 12 grand jurors later came forward to dispute his account. They explained how Cameron’s team limited their scope and misled them about what charges they could consider against the officers involved in Taylor’s tragic death. Each of the 3 jurors wanted Breonna Taylor’s family to know they did not agree with the lack of charges against the officers. By most accounts, Cameron seemed to pass the buck and blame the lack of charges on the grand jury.
In contrast to the aforementioned case, New York Attorney General Letitia James was tasked with investigating the officers involved with the death of Daniel Prude in Rochester. Remember that this only applied because Prude was unarmed. Many signs point to the fact that Letitia James vigorously tried to pursue criminally negligent homicide charges for three officers. After nine days of testimony, a grand jury decided 15-5 to clear the officers and not indict. James secured a judge’s okay to make the usually secret material public.
Two cases where “independent/special” prosecutors seem to fall on opposite ends of the spectrum, yet the same result (albeit the one officer in Louisville being indicted for a lesser offense not directly relevant to Breonna Taylor’s death).
I am left contemplating the following questions:
What is the difference between county prosecutors and independent/special prosecutors conducting investigations if, at the end of the day, the fate of charges rests upon grand juries?
Do independent/special prosecutors do anything to improve public perceptions of fairness and transparency in the process, especially for family members and loves ones, when much of the information is shrouded in the secrecy of grand jury proceedings?
I am, however, hesitant to write off and critique it altogether. Some states are challenging the status quo and attempting to limit potential conflicts of interest by creating more “space” between the investigators and the investigated. I simple wonder if it makes much of a difference in the process.
P.S. independent/special prosecutors fall on the tail end of the spectrum between front- versus back-end accountability (see NYU’s Police Project). Much like citizen complaint review boards and most types of civilian oversight more broadly, they are inherently reactionary and after-the-fact investigations when a critical incident has already occurred. I am more inclined to put more eggs in the front-end accountability baskets to try to reduce the likelihood of critical incidents from happening in the first place: strong administrative policies/practices and internal controls, innovative and effective training, etc. to create a culture of organizational accountability before things go wrong.