Police Suspects

Abstract

Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated agreements protect police from tactics that are part and parcel of the confession-inducing playbook these same officers use when questioning civilian suspects.

This Article investigates these formal procedural protections for police suspects. It argues that, as criminal justice insiders, police have dealt themselves special protections from police questioning based on their knowledge of what protections a suspect needs most when facing interrogation. Meanwhile, the police continue to argue that, without using these selfsame tactics on other suspects, their ability to catch and convict dangerous criminals will be hampered.

The distributive inequality created by special police rights threatens the fairness and legitimacy of the criminal justice system in several ways: it skews the relationship between the most sophisticated suspects and the amount of protection they receive; it sullies the appearance of justice; and it decreases the normative value of criminal law.

The nascent awareness of these special interrogation protections has led a number of scholars and commentators to call for removing LEOBOR rights from police in order to achieve accountability and distributive equality. Yet the opposite response may be theoretically and practically superior. As criminal justice insiders, the preferences police negotiate for and receive can serve as a model for ways to reform a particularly problematic part of our criminal justice system. Thus, before we strip protections from the police, we should look hard at how these protections might apply to all criminal suspects.

Keywords: criminal law, police, criminal procedure