To Serve and Protect Each Other
Somil Trivedi ('09) and Nicole Gonzalez Van Cleve on how police-prosecutor codependence enables police misconduct in the May 2020 BU Law Review.
To Serve and Protect Each Other
Somil Trivedi (’09) and Nicole Gonzalez Van Cleve on how police-prosecutor codependence enables police misconduct.
The following is excerpted from “To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct,” published in the May 2020 issue of the Boston University Law Review, which examines the legal determinants of police violence.
- Read the rest of the BU Law Review articles here
- Read the Slate piece authored by Gonzalez Van Cleve and Trivedi based on their research
Jon Burge was a serial racist and sadist who tortured over 120 Black men in Chicago in the 1980s and ’90s. He placed bags over their heads, burned them with cattle prods, and shouted the n-word while electrocuting them. But Burge was also a commander in the Chicago Police Department who was torturing these men to extract confessions to alleged crimes. And because of the latter, he was never charged for the former. The Cook County State’s Attorney’s Office—the prosecutors who had the ability and duty to charge Burge and his associates with crimes—failed to hold him accountable for “what reads like three decades of wartime atrocities in an American city,” atrocities that were widely known within poor communities around the Cook County Court House.
In fact, far from charging Burge and protecting his victims, line Chicago prosecutors continued taking his cases forward without disclosing the torture that would have unraveled them. In so doing, prosecutors displayed a willful institutional blindness that all but encouraged the police violence to continue. In fact, by proceeding with these cases—many of which were won based on the illegally extracted confessions—prosecutors validated a formalized process through which police could operate with nearly unchecked oversight and prosecutors could reap the “benefits” of high conviction rates and long sentences. These benefits were both political and structural. High conviction rates on such violent cases gave the political veneer of being tough on crime. Convictions, especially those won at trial with police testimony, also gave one clout in the State’s Attorney’s Office—the type of clout that earned prosecutors their promotions.
There is no statute or common law that describes these rules of engagement. However, these institutional norms of practice and incentives were so entrenched that they enabled police misconduct with near impunity. Perhaps it is no surprise that it took a half a century—and a Herculean lawsuit to expose the Laquan McDonald dashcam video—in order to charge and convict a police officer for an on-duty shooting.
Like police power in the streets, prosecutorial power in the formal criminal legal system has deep historical roots and is nearly unchecked. In 1940, then Attorney General (and later Supreme Court Justice) Robert Jackson said, “The Prosecutor has more control over life, liberty and reputation than any other person in America.” Indeed, the law imbues prosecutors with vast discretion to commence or discontinue public prosecutions when “the ends of justice are satisfied.” Yet ample evidence indicates that when police are the ones committing the crimes, prosecutors deploy their immense discretion to cover for and effectively encourage the criminality rather than to combat it and seek justice. The seemingly unending list of young Black people killed by police without local criminal repercussions—Michael Brown, Philando Castile, Stephon Clark, Eric Garner, Tamir Rice, Alton Sterling, and more—speaks to this phenomenon and its national scope. However, prosecutors get the police’s backs in less obvious ways, which include influencing practice norms within the criminal prosecution system.
Prosecutors who resist the status quo do not fare well. St. Louis’s experience since the Ferguson protests is telling. After police officer Darren Wilson killed Michael Brown in 2015, local and national groups pressured St. Louis County Attorney Bob McCulloch to charge Wilson. McCulloch, at the time a twenty seven-year incumbent with a tough-on-crime pedigree and close ties to the police, did not want to prosecute Wilson. His now-infamous work-around was to submit the matter to a grand jury, presenting such a weak case for murder that the grand jury declined to indict Wilson. In McCulloch’s calculation, this allowed him to avoid blame from either side.
McCulloch’s stratagem lasted until the next election, when Wesley Bell, a Democrat and a Black city council member, upset him. Wilson’s nonindictment, as well as racial inequality in policing more generally, played a central role in the election. Bell, though a longtime prosecutor himself, ran as a reformer, promising among other things to address police misconduct. Upon election, he was immediately punished for this transgression. In a stunning, almost literal demonstration of the lack of independence between police and prosecutors, dozens of assistant county attorneys in Bell’s office joined the police union to protest Bell.