Why police officers are rarely prosecuted
December 14, 2020
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When a grand jury in Kentucky decided not to charge a police officer for the killing of Breonna Taylor earlier this year, it sparked nationwide outrage. But the decision was, in a sense, typical: In the US, police almost never face serious criminal charges for an on-duty shooting or killing.

Since 2005, 126 police officers have been arrested for murder or manslaughter due to an on-duty shooting, according to data from Philip Matthew Stinson, a criminal justice expert at Bowling Green State University who has been tracking the data for years. That amounts to fewer than eight prosecutions a year.

About 1,000 fatal police shootings are reported each year in the US — so the arrest rate is around 1 percent, never higher than 2 percent. It’s a figure that’s hard to believe, even for Stinson himself: The number of police officers prosecuted “seems extremely low to me,” he told me. “In my opinion, it’s got to be that more of the fatal shootings are unjustified.”

Of those 126 officers, just 44 were convicted (with 31 cases still pending). Many of those convictions came on lesser charges: Just seven officers have been convicted of murder in police shootings since 2005, with their prison sentences ranging from 81 months to life. The remaining 37 were convicted on charges ranging from manslaughter to official misconduct, in some cases serving no prison time.

Christina Animashaun/Vox

After the police shooting of Michael Brown in Ferguson, Missouri, in August 2014, as the Black Lives Matter movement grew more prominent, there was an uptick in prosecutions: From 2005 to 2014, about five police officers were prosecuted a year. Starting with 2015, the average is up to roughly 13 a year — meaning cops are now prosecuted in less than 2 percent of fatal shootings, up from less than 1 percent. And convictions have increased from fewer than three a year before 2015 to more than three since 2015.

But that’s still a tiny fraction of fatal police shootings. “It’s very low,” Stinson said. As for the increase in prosecution numbers: “I don’t see systemic change.”

Christina Animashaun/Vox

Many social and legal factors contribute to the low rates of charges and convictions. Cops, under cultural pressure, actively protect each other, making it more difficult at virtually every step to investigate a fatal police shooting as an illegal act. Prosecutors face conflicts of interest, as they risk aggravating police departments they work closely with by pursuing charges. The public is skeptical of second-guessing police in tense situations. And the law gives police wide latitude to use force.

Police are protected by social and legal forces

There’s a standard process for what happens after a murder. Police gather evidence of a crime, collecting physical materials as well as rounding up and talking to witnesses. Then prosecutors use that evidence to put together a case for court. A suspect can at that point make a deal and plead guilty, or take the case to trial.

For a police shooting, things work differently. That’s in part because many police shootings are justified, dealing with a suspect who was a serious threat. But there’s also a confluence of social and legal forces that protect cops at every step, from investigation to prosecution to trial, even if they actually were in the wrong.

“Everything is done different” than in a standard murder, Stinson said. “It makes it difficult for prosecutors to figure it out and to make a rational decision, an informed decision, in terms of charging.”

For one, cops might resist treating a police killing as a crime and refuse to gather evidence. They could follow what’s known as the “blue wall of silence” — essentially, a code between officers that they won’t snitch on each other or otherwise try to get each other in trouble. The most obvious effect of this is that cops, who are often the closest witnesses to a fatal shooting, won’t give a full, truthful account if it puts their colleagues in danger. Right away, that eliminates the most likely witnesses — fellow officers — to treating a police killing as a potential crime.

The newest members of the New York City Police Department (NYPD) attend their graduation ceremony at Madison Square Garden on March 30, 2017.
Drew Angerer/Getty Images

Meanwhile, prosecutors have incentives not to push too hard. They work very closely with police departments on a day-to-day basis — it’s, again, how they get a lot of evidence for charges, trials, and convictions. If prosecutors go after the police, they risk damaging that relationship and, subsequently, making their day-to-day work a lot harder.

This isn’t theoretical; prosecutors have repeatedly complained about this. Following the 2017 Minneapolis police killing of Justine Damond, Hennepin County prosecutor Mike Freeman brought murder charges against the shooting officer, Mohamed Noor. Though Noor was ultimately convicted and sentenced to prison, it wasn’t easy.

“A number of the officers, for reasons we do not understand … refused to come answer questions,” Freeman said in 2018. “I’ve been privileged to have this job nearly 18 years, I’ve never had police officers who weren’t suspects refuse to do their duty and come forward to talk to us.”

That’s an example of a prosecutor who actually tried pursuing the case. In many cases, prosecutors will use their discretion to not bring any charges at all. That may be because they genuinely find a police killing to be justified, or it may be because they find the case too challenging or politically risky. (In much of the US, prosecutors are elected into their positions.)

If a case does make it to trial, a major challenge is persuading judges and juries, made up of members of the public, that a cop should be convicted. Based on Stinson’s data for officers charged for murder or manslaughter due to an on-duty shooting, just 46 percent of police with completed cases have been convicted since 2005.

”There is a tendency to believe an officer over a civilian, in terms of credibility,” David Rudovsky, a civil rights lawyer who co-wrote Prosecuting Misconduct: Law and Litigation, previously told Vox. “And when an officer is on trial, reasonable doubt has a lot of bite. A prosecutor needs a very strong case before a jury will say that somebody we generally trust to protect us has so seriously crossed the line as to be subject to a conviction.”

Stinson put it another way: People are “very reluctant to second-guess the split-second, life-or-death decisions of a police officer in a potentially violent street encounter. They just won’t do it.”

Then there’s the actual law, which gives police wide latitude to use force. Under the legal standards set by the Supreme Court, police officers can be legally justified in using force if they merely perceive a threat, even if a threat isn’t there. State laws can vary, but in general the legal question comes down to whether the officer acted reasonably — in a way other officers would in similar situations, without the benefit of hindsight — which can easily be interpreted by prosecutors, judges, or juries to allow cops to use force in situations in which they didn’t really need to.

This is part of the problem that the state’s attorney for Baltimore, Marilyn Mosby, ran into when she prosecuted the police officers involved in the 2015 killing of Freddie Gray. The question in trial often came down to whether the officers were acting unreasonably, which was simply too hard for Mosby to prove. Coupled with all the other problems above, Mosby found it impossible to land a conviction. As she put it, after she decided to drop the cases in 2016:

After much thought and prayer, it has become clear that without being able to work with an independent investigatory agency from the very start, without having a say in the election of whether cases proceed in front of a judge or jury, without communal oversight of police in this community, without substantive reforms to the current criminal justice system, we could try this case 100 times just like it and we would still end up with the same result.

That was true even for officers in a police department that the US Department of Justice found to be broken at practically every level — concluding in a damning report, “Racially disparate impact is present at every stage of BPD’s enforcement actions, from the initial decision to stop individuals on Baltimore streets to searches, arrests, and uses of force.” And it’s likely even more true for police departments that aren’t as systemically broken.

The result: Police officers today get away without even an arrest for murder or manslaughter in more than 98 percent of fatal shootings.

Policy can help, but part of the issue is cultural

Fixing police accountability will require more than changing policies.

Accountability for officers needs to better ingrained within police departments and prosecutors’ offices. If there’s no culture of accountability in these places, it’s going to be extremely difficult, if not impossible, for the legal system to do more to hold cops accountable. No one has a great answer for how, exactly, to make this happen. Some of that work has started with the recent push to elect more progressive prosecutors, but so far that hasn’t led to big changes across America, and it’s too early to say if it will.

From a broader cultural perspective, the public needs to be more willing to question cops’ side of the story — a shift that would ultimately not just trickle down to juries but perhaps spark more systemic changes in how police departments and prosecutors’ offices function and the kinds of policies lawmakers back to hold police accountable. Again, some of that work already appears to be underway, with support for Black Lives Matter up compared to recent years, but it’s too early to say if that’s enough so far.

Policy changes could help, too.

One potential step is repealing “qualified immunity,” which shields individual officers from lawsuits. But Stinson said it has to go further: “It would be an inconvenience for officers if they had [civil] judgments against them, but it’s not a deterrent. What would deter them is seeing many other officers go to prison. That’s what it takes.”

A portrait of George Floyd hangs on a street light pole as police officers stand guard at a police precinct in Minneapolis, Minnesota, on May 27, 2020.
Stephen Maturen/Getty Images

One common idea is to put independent prosecutors in charge of investigations of police use of force. This could help mitigate any conflict of interest between prosecutors and the police departments they work closely with on a daily basis. Some cities, counties, and states already do this, but it’s far from nationwide.

Another is to change the laws and rules surrounding shootings and use of force. Police departments could change their own policies, establishing clearer standards for what’s reasonable or not.

Local, state, and federal lawmakers get a say here, too. Last year, for example, California lawmakers required that deadly force not be just “objectively reasonable” but “necessary.” While there are major questions about what “necessary” really means, experts are watching the impact of the changes over time as the new law is tested by prosecutors in court, to see if there’s a real shift in police accountability.

Some experts also still pin some hope on the spread of cameras. While the research on whether police-worn cameras have an impact on use of force and accountability overall is very disappointing, it’s hard to shake the sense that video of police shootings has at least moved the needle on how the public perceives the police. After all, it’s video of the arrest of George Floyd in Minneapolis this year that led to thousands of Black Lives Matter protests, and greater support for those protests, this summer.

But as Stinson said: “Even when you got good video, you don’t necessarily get a conviction out of it,” such as in the Minnesota police killing of Philando Castile.

Beyond police accountability, there are broader changes that could be made to otherwise reduce the number of police shootings. Better police training and policies could encourage officers to get into fewer situations in which use of force might be necessary — essentially, remove the need for a split-second decision. More could be done to rebuild trust and police-community relations, which could allow police to not be as guarded, and potentially aggressive, in day-to-day scenarios. America could tighten restrictions on guns, given that research suggests that more guns leads to more police shootings as well, perhaps because police are more likely to use lethal force in situations in which they expect a gun to be present.

As all of these problems and solutions indicate, this won’t be an easy issue to solve. It requires a truly systemic shift, from America’s culture around policing to how the criminal justice system functions at every level. If the US wants fewer cases that result in no justice, all of that work and effort will be necessary.

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