Who Shouldn't Prosecute the Police

Abstract

The job of prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wakes of the recent killings of Michael Brown and Eric Garner. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This article focuses on the undertheorized but critically important role that conflict of interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked with investigating and charging cases against officers who commit crimes. This article argues that a structural conflict of interest arises when local prosecutors are given the discretion and responsibility to investigate and lead cases against the police.

This article theorizes the disqualification of legal actors from their traditional roles by drawing out a number of themes from conflict law: that the criminal justice system must appear just, and that judges and attorneys alike must not have a personal stake in the outcome of litigation. It then lays out a full account of the personal and professional interconnectedness between local prosecutors and the police. Then, using conflict of interest theory, it details how asking local prosecutors to become adversaries of their closest professional allies raises process-oriented and democratic legitimacy issues, particularly in our racially charged criminal justice system. It concludes that the conflict of interest between local prosecutors and police defendants is so anathema to our system of justice that it requires removal in every police-defendant case. Finally, it turns to the question of who should prosecute the police and proposes several potential solutions.

Keywords: criminal law, criminal procedure, legal ethics, prosecutors, police, conflicts of interest