Law Professor Stephen Rushin’s 2017 study of police union contracts provides one possible answer. Rushin notes that these employment agreements are usually negotiated in secret, and that
municipal leaders may be strongly incentivized to offer concessions to police unions on disciplinary procedures in exchange for lower officer salaries. Because municipal expenditures can dominate local headlines, the result is a sort of moral hazard. Municipal leaders may be incentivized to offer concessions on police disciplinary procedures because they are less likely to bear the costs of those concessions in the immediate future. After all, the typical victim of police misconduct is often a member of a relatively small and politically disadvantaged minority of municipal voters. Stephen Rushin, Police Union Contracts, 66 Duke L. J. 1191, 1216 (2017).
Almost every major problem relating to American criminal justice can be traced to simplistic and self-defeating ideas about “deterrence.” This is no less true with respect to the sanctioned use of police brutality as a response to street protest. From Maggie Koerth and Jamiles Lartey of The Marshall Project:
Researchers have spent 50 years studying the way crowds of protestors and crowds of police behave—and what happens when the two interact. One thing they will tell you is that when the police respond by escalating force—wearing riot gear from the start, or using tear gas on protestors—it doesn’t work. In fact, disproportionate police force is one of the things that can make a peaceful protest not so peaceful. But if we know that (and have known that for decades), why are the police still doing it?
“There’s this failed mindset of ‘if we show force, immediately we will deter criminal activity or unruly activity’ and show me where that has worked,” said Scott Thompson, the former chief of police in Camden, New Jersey. Maggie Koerth & Jamiles Lartey, Why So Many Police Are Handling the Protests Wrong, The Marshall Project (June 1, 2020).
In United States v. Grey, the Court of Appeals for the Ninth Circuit recently upheld a district court order suppressing evidence that was recovered during an “administrative” inspection of the defendant’s home, where the “primary purpose” of that inspection was to gather evidence in support of a criminal investigation.
Under the Fourth Amendment, police may not search a person’s home without a warrant supported by probable cause. Of course, there are many “exceptions” to the warrant requirement. (As a practical matter, it might more accurate to say that the Fourth Amendment is a narrow exception to the general rule that police officials can do whatever they want with your property.) One of these exceptions is the “administrative search” rule, under which “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’” Grey, at 21 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). This means that a warrant is not generally required “where the search or seizure is in execution of an administrative warrant authorizing . . . an inspection of residential premises to ensure compliance with a housing code.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011)).
However, in Grey the Ninth Circuit confirmed that: (1) when an officer’s “primary purpose” in conducting an administrative search is to further a criminal investigation, and (2) where the officer’s “criminal investigatory motive plainly increased the intrusion on [the defendant’s] privacy interests,” the administrative search exception does not apply and the search violates the Fourth Amendment.
In United States v. Mario Nelson Reyes-Romero, a non-U.S. citizen who was previously deported to El Salvador was arrested and prosecuted for the crime of unlawful reentry. The district court found that DHS officers’ testimony about the prior deportation proceedings amounted to “a combination of nonsense . . . [and] lies,” and criticized the federal prosecutors for relying on that testimony and then failing to disavow it, in spite of applicable ethics standards that require prosecutors to correct witness statements that are obviously untrue.
The defendant then sued the government under the Hyde Amendment, and the district court granted him an award of $73,757 in fees and costs. Among other things, the district court found that inconsistencies in the immigration removal forms that were used in the prior deportation proceedings were so apparent that it was “frivolous” for the government to have charged him under the illegal reentry statute. Although district courts are ordinarily entitled to substantial discretion in granting or denying Hyde Amendment awards, the Court of Appeals for the Third Circuit reversed, stating that “the Hyde Amendment is not an appropriate vehicle to criticize the conduct of law enforcement officers or second-guess the management of a criminal prosecution.”
Unfortunately, there is no other viable “vehicle” for people to sue miscreant prosecutors or law enforcement officials. Despite the enormous amount of power they wield, they are almost entirely impervious to accountability. Prosecutors are absolutely immune from liability under the civil rights statutes, and police officers and other executive branch officials benefit from “qualified immunity,” which has become the practical equivalent of absolute immunity. While the Hyde Amendment purports to open a small crack in that wall of impunity, the Third Circuit’s Reyes-Romero decision sends an unmistakable message to district courts: if you dare to find a prosecutor liable then all deference to your findings of fact will go out the window.
While prison and jail inmates with underlying health conditions fight for compassionate release or reduced bail during the COVID-19 pandemic, many prosecutors are continuing to raise baseless and dangerous arguments that ought to draw the attention of their state bar committees. My personal favorite, which any judge with access to a reliable news source from the past two months should reject out of hand, is the risible claim that medically vulnerable inmates are safer in prisons than they would be in the outside world. Except for cases involving white collar offenders, where the government often does not object to the defendant’s release, I have seen very few federal cases where prosecutors did not make this ridiculous argument.
Another such argument is described by Sarah Stillman in this week’s issue of The New Yorker:
Prosecutors [in Orleans Parish, Louisiana] opposed some bond reductions, especially for defendants without a home address, arguing that, if they were released, they would “pose a threat to the general public by potentially spreading the virus to others.” This logic was pernicious; according to an open letter written by the dean of Tulane’s public-health school and other experts, the longer the parish delayed releases, the more genuine the threat of mass infection in the jail was—and thus the more likely it would be spread to the public.Sarah Stillman, “Compassionate Release,” The New Yorker (May 25, 2020)
Stillman also notes that the Orleans Parish D.A.’s office “said that it has instructed prosecutors to stop making this argument in bond hearings.” However, it is clear that federal prosecutors have received no such instruction. To the contrary, even in cases involving non-violent and elderly or medically vulnerable offenders, U.S. Attorney’s Offices are still telling judges that it would somehow benefit the public to keep those offenders locked up in crowded and unsanitary facilities where the virus spreads like wildfire.
For the third time, the prosecution of Ahmaud Arbery’s accused killers has been assigned to a new prosecutor. In addition, Georgia Attorney General Chris Carr recently asked the federal Department of Justice to investigate the evident problems with how the case has been handled thus far. Carr promised to provide his office’s “entire file regarding the appointment process for the prosecutors in this case and provide any assistance requested by the [DOJ].” In addition, as reported in the NYT:
Justice Department officials said on Monday they were weighing whether to bring federal hate crime charges, and had asked state officials to pass along relevant information as they consider bringing an investigation. “We will continue to assess all information,” Kerri Kupec, a Justice Department spokeswoman, said in a statement, “and will take any appropriate action that is warranted by the facts and the law.”Rick Rojas & Richard Fausset, Killing of Ahmaud Arbery is Switched to a Fourth Prosecutor, NY Times (May 11, 2020).
One can only hope that something positive comes out of the DOJ’s involvement in the Arbery case. Unfortunately, recent history has shown that the agency’s leadership is unlikely to view the murder of an innocent African American by a former police detective and his son, and the racially biased law enforcement response to that murder, as serious civil rights concerns.
Among other tragic cases, Arbery’s case recalls the killing of Eric Garner, who was choked to death by NYPD Officer Daniel Pantaleo in full public view as bystanders filmed the encounter and Garner repeatedly gasped “I can’t breathe.” For five full years, under both Presidents Obama and Trump, DOJ officials squabbled about whether to file criminal charges against Panatelo. Finally, on the day before the statute of limitations would have expired, U.S. Attorney Richard P. Donoghue of the Eastern District of New York announced that Pantaleo would not be charged with civil rights violations.
Every case is different, but many of the DOJ officials who saw the video of Garner’s killing and were able to convince themselves that Pantaleo had not “willfully” applied “objectively unreasonable force” will likely be involved in the federal investigation of the Arbery case. I hope to be proved wrong, but that does not bode well for a just outcome.
On February 10, the career prosecutors who had tried and won the criminal case against Roger Stone submitted a request for a prison sentence within the U.S. Sentencing Guidelines’ recommended range of 87 to 108 months. (Federal prosecutors almost always request Guidelines-based sentences; to their way of thinking the sacrosanct Guidelines somehow manage to prescribe the most reasonable range of sentences in nearly every case.) The next day, after President Trump’s 1:48 a.m. tweet denigrating the career prosecutors’ request as a “miscarriage of justice,” the central Department of Justice office filed a revised memorandum asking for a sentence “far less” than the Guidelines range. There was no reasonable or innocent explanation for this unprecedented move. The central DOJ office did not have an overnight epiphany about the general ineffectiveness of long prison sentences as a means to prevent crime. Rather, Attorney General Barr and/or others within the DOJ clearly intervened in a criminal matter on behalf of the President’s friend in order to appease the President.
Instead of playing along with the central office’s efforts to help Stone, all four of the career prosecutors who had been involved in the case withdrew for ethical reasons, and one of them, Jonathan Kravis, quit his job as a prosecutor. Earlier today, in light of recent revelations about Barr’s interference on behalf of Michael Flynn, who had already pleaded guilty to criminal conduct on two separate occasions, Kravis published a compelling Op-Ed in the Washington Post:
In both cases, the department undercut the work of career employees to protect an ally of the president, an abdication to the commitment to equal justice under the law. Prosecutors must make decisions based on facts and law, not on the defendant’s political connections. When the department takes steps that it would never take in any other case to protect an ally of the president, it betrays this principle.
If the department truly acted because of good-faith commitments to legal positions, then where is the evidence of those commitments in other cases that do not involve friends of the president? Where are the narcotics cases in which the department has filed a sentencing memorandum overruling career prosecutors? Where are the other false-statements cases dismissed after a guilty plea? There are none. Is that because the only cases in the United States that warranted intervention by department leadership happened to involve friends of the president? Of course not.Jonathan Kravis, I Left the Justice Department After It Made a Disastrous Mistake. It Just Happened Again, Wash. Post (May 11, 2020)