To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct

Abstract

Most American are rightly enraged when police shoot unarmed civilians, use excessive force, or engage in unethical practices like planting evidence. However, there is little popular understanding and scholarly attention as to why prosecutors fail to charge or otherwise hold officers accountable. This Article offers a novel contribution to the study of police misconduct by examining how prosecutors nationwide enable police misconduct on an institutional level. Through both social-scientific and legal analysis, we consider the codependent relationship between prosecutors and police that prevents accountability for police violence and misconduct against the public. Specifically, we analyze (1) the cultural norms created between police and prosecutors that allow police to influence prosecutorial discretion over police accountability and (2) the legal and extralegal tools that prosecutors wield to protect their police benefactors—and themselves in the process. In contrast to other scholarship on police misconduct, we show how adjacent criminal justice institutions—police and prosecutors—enable persistent patterns of practice that operate within the boundaries of legality, but often to deadly and unethical ends. We end with potential solutions to better equip conscientious prosecutors, lawmakers, and the public to combat this codependent dynamic that has left so many communities—particularly those on the margins—afraid of the very law enforcement actors that are supposed to protect them.

Keywords: police, prosecutor, misconduct, bad apple, laquan, tamir, michael brown, plea bargain!, brady, blue wall, Chicago, social justice, poverty law, social justice, constitutional law, criminal law, criminal procedure, district attorney, state attorney, due process, progressive prosecutor, criminology