Increasing Police Accountability: Restoring Trust and Legitimacy through the Appointment of Independent Prosecutors

Immediately following the shooting death of Michael Brown in Ferguson, Missouri and the death of Eric Gardner at the hands of a New York Police Department officer, criminal justice advocates called for greater measures to hold police officers accountable for their actions. For many observers, the failure to secure criminal indictments against the officers involved in each of these deaths of unarmed citizens suggested various shortcomings in the criminal justice system. In the wake of these deaths and others, President Obama signed an order establishing the President's Task Force on 21st Century Policing, a body of scholars, practitioners, and policymakers that would examine ways to improve distrust between communities and police. Yet in the weeks following the release of the Task Force's report, a North Charleston police officer fatally shot Walter Scott in the back and protests erupted in Baltimore, Maryland after Freddie Gray died of injuries sustained while in police custody.' These deaths have reignited many debates about myriad reform proposals that experts have discussed throughout history. Many of these reforms may result in additional transparency about deaths or serious injuries suffered in police custody, assist in identifying structural failures and opportunities to enhance training, and lead to more effective policy solutions. However, the aforementioned police accountability measures may not result in punishment of individual officers who have employed excessive force, because even when seemingly damning evidence exists, prosecutions of officers have traditionally been rare and even when officers are prosecuted, convictions are difficult to secure. Amid the calls for accountability, recent public outrage reached a fever pitch when officers were not held criminally responsible for recent high-profile deaths. Numerous advocates noted that local prosecutors face inherent conflicts of interest and for this reason, these advocates call for independent agencies or special prosecutors to prosecute these cases. Criminal prosecution of police officers raises a myriad of issues that this Article will begin to explore. Part I of this paper summarizes the various tools currently used to keep police officers accountable for their actions, and contextualizes criminal prosecution as one tool in the toolkit of police accountability. Part II will argue that the current manner in which many local prosecutions proceed, which is replete with potential (and inherent) conflicts of interest, undermines both the deterrence rationale and public confidence in whether both victims and police officers are treated fairly when local prosecutors are responsible for investigating and deciding whether to criminally charge officers. This part will explore the challenges and dangerous implications of the current model. Part III of this Article will explore the merits of several proposals to reform this process, focusing primarily upon the appointment of independent prosecutors rather than local ones to investigate and prosecute police-involved deaths.