Who polices the police? When it comes to American police and law enforcement, the answer to this question isn’t always clear, even for experts. More specifically, the exact process varies across states, and the structure of the process of police oversight is dependent upon the precise case of misconduct or felony in question. In order to understand how we got to the ineffectual, or at the very least, controversial system that we have in the USA today, it is important to understand the history behind how we got here.
Under English common law, from which our current legal system is fundamentally derived, there is a legal standard wherein officers of the law can kill or harm suspects without any fear of legal repercussion. Since it was broadly assumed that cops would only pursue criminals and that criminals were dangerous, especially before the invention of firearms, there would have been few situations where an officer wouldn’t be endangered if they were using force, lethal or otherwise (think hand-to-hand combat). As a result of this, even hundreds of years later, due to the system the USA adopted on its birth, there is effectively no de facto limit to police authority established in America, on a state level.
Of course, the Bill of Rights provides some retroactive protection, and, federally, under section 1983 (see Qualified Immunity for more details), citizens can sue in federal court if they feel their civil rights have been violated. However, this hardly ever means that they will win their case or actually hold the police force in question accountable in any tangible or lasting way. More recently, under the Supreme court ruling Tennessee v. Garner (1985), police have nearly complete discretion. The law in states that have implemented the standard established in the Garner ruling is such that police or any law enforcement officers must only as a reasonable officer might be expected to act in the given moment in question in order to have a license to kill or harm a suspect extra-judicially. Whether or not there was real danger is legally, under this standard, beside the point. It is all about the officer’s perception and the perception of a jury relative to how they would expect an officer to act. And that is the strictest standard we have. Of the 50 states, around 36 have seemingly adopted this standard in their rulings, letting them apply it to criminal cases brought by the government against officers and agents of the law. Because of these factors, there is currently very little chance that any case brought against police will ever lead to a conviction.
This is relevant to independent investigation because the diminished chance that a conviction will be reached means District Attorneys, who are exclusively responsible for bringing and prosecuting criminal cases, are less likely to bring cases of police misconduct to court at all. In fact, police are half as likely to be convicted in a given criminal case, and half as likely to be incarcerated, should they be convicted, when compared to the general public. Furthermore, the details of these cases are investigated by the Internal Affairs Departments of police precincts and groups. This means that those who are both investigating and prosecuting criminal cases of police misconduct work with the defendants personally and often require them for testimony in the day to day work of their prosecutions. The system is so often, to put it simply, police officers investigating police officers. Officers are under a lot of pressure to lie or obfuscate the truth in a dishonest way which they can nearly always get away with. Ultimately, Law enforcement units and police departments are given free reign over their own fate. The system is fundamentally self-regulatory. This lends itself to clear bias in the favor of defendants.
Attorneys General outside of the federal government are also sometimes subject to election and re-election (in certain cases). This means that AG’s may be inclined to be more lenient with the officers and police unions in their precinct or state, as those groups are generally less likely to wield their substantial voting power and influence in favor of an AG which does not frequently rule in the favor of them and their peers.
Additionally, there are no federal guidelines for how internal investigations should be conducted, and there is no standard of a completely independent oversight body which isn’t housed in the same governmental body as the officers being prosecuted. Civilian review boards have been instituted in certain precincts, but they don’t account for the fact that juries are often inclined to be more lenient towards a police officer, and is more likely to believe their version of the truth, when placed on the stand in opposition to a victim of police misconduct. And, since Civilian Review Boards don’t have subpoena power, they can rarely get to the bottom of things, and, even when they change the version of events presented to a jury, it does not remove their biases. The sum of these facts constantly results in a system where police rarely face personal penalties for misconduct, even in the cases of extrajudicial killings, or egregious racially motivated abuse.
This somewhat biased system is on display repeatedly for those who are paying attention. For example, in the high profile Michael Brown case, wherein then-Governor Jay Nixon of Missouri (D) refused to request the recusal of the St. Louis county prosecutor, whose father, mother, uncle, and cousin all worked for the St. Louis Police Department, with his father having been killed responding to a call involving a black suspect, from the case. This shows that even in cases where extreme bias is evident, an independent and unbiased prosecutor is not a right that American citizens have. That’s why Meet The Momentum advocates for the establishment of an independent and impartial investigator in cases of police misconduct on all levels.
While it’s true the system can work to provide justice for those who are wronged, as in the case of George Floyd in 2021, where the cop who murdered him was convicted and incarcerated, that example is one of the most well-documented, high profile, and exceptional cases, and only showcases why creating a fairer prosecutorial and investigative process is in the best interest of citizens.
Sources (click to expand)
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