Police have the unique task of protecting our communities and enforcing the law, so their presence should inspire trust and legitimacy. However, thanks to the prevalence of camera phones, we can now literally watch police kill Black people, use excessive force, and then get away with it with hardly a scratch.
On Tuesday, a jury failed to convict Michael Slager for the murder of Walter Scott despite video evidence of Slager shooting Scott in the back. A criminal conviction would have been a modest response to Scott’s death. We are left confused about how Black life has been rendered so disposable by some that there could be any question that a police officer should be held accountable when he shoots a Black man in the back as if he were hunting an animal.
Cases like this one, which have become far too common, illustrate some of the legal and political difficulties in holding police officers accountable for misconduct. Here are ten ways police would more likely be held accountable for killing Black men and women:
1. We need to hold police officers to the same legal standards. In some localities, police are literally held to a different legal standard and awarded different protections through so-called bills of rights that make it more difficult to hold police officers accountable for shootings. Jurisdictions such as Louisiana and Florida have laws that hold police to different legal standards, and some allow officers to wait as long as 30 days before being interrogated about a killing. It’s important that police officers are bound to the same standards as civilians.
2. We need independent prosecutors. Prosecutors work very closely with police officers on their cases and are therefore may be susceptible to bias. They use police as witnesses and need to maintain professional relationships with them in order to be successful in their cases. This creates a dilemma where the prosecutor may be reluctant to fully prosecute police. In Chicago, Anita Alvarez took over a year before bringing charges in the Laquan McDonald case. Using independent prosecutors may be a way to reduce the political risks that prosecutors face in charging police, who are, in essence, their colleagues.
3. We need grand juries to function as grand juries, not trials. In the Michael Brown case, the grand jury deliberations took place over three months, which is very unusual for grand juries in general. There’s an old expression that grand jury indictments are so easy that a prosecutor can indict a ham sandwich. Yet, in the case of police officers, prosecutors present evidence that may be favorable to the defense and treat grand juries like trials.
4. We need an easier intent requirement for federal criminal cases. The legal standard for federal criminal cases is very tough. In order to prove that a police officer violated federal criminal law, which is found in 18 U.S.C. § 242, the government must be able to show that the officer “willfully” violated clearly established federal civil rights law to be successful in its case. This is tough to prove, and police officers may respond by saying they were acting in self defense and thus were not willfully violating federal civil rights law. The DOJ was unable to hold Officer Darren Wilson accountable under federal law because of this tough willful standard.
5. We need better and more diverse jurors. Jurors need to be aware of their own biases and given specific instructions and education to help mitigate against the impact of implicit bias on their determinations. It’s hard to comprehend how a reasonable juror could not hold Officer Slager accountable, suggesting that the hold-out juror was either unreasonable, racially biased, or both. Public education about jurors’ responsibility, allowing jurors who have convictions to serve on juries, and providing accommodations for jurors with financial struggles and other barriers will go a long way toward ensuring that people who serve on juries are fair and reflect the diversity of the community. Advocates should highlight that proper accountability and legitimacy actually improves community safety, so when community members then serve on juries, they keep this in mind.
6. We need better body worn and dashboard camera policies. Body worn cameras are not a panacea for holding police accountable for civilian killings. The Scott case shows how video evidence is not a guarantee of a successful case. However, body worn cameras have been shown to be effective at reducing the incidents of excessive force before they happen. These cameras are effective when there are policies in place that require police officers to leave the cameras on and where there are effective privacy protections in place.
7. We need more diverse prosecutors. There are far too few Black prosecutors. A recent study found that 95 percent of elected prosecutors are White, and 79 percent are White men. Prosecutors have been a largely unaccountable and powerful part of the system. Yet, very few of them look like the Black victims and defendants they serve, allowing implicit biases and structural racism to play out in prosecution. We need to elect better, more diverse, and more accountable prosecutors, who will be empathetic toward Black victims.
8. We need to change police culture. The “blue code” is difficult to pierce. Police have one of the most powerful unions in the country and have successfully developed a culture of internal loyalty to the detriment of accountability, legitimacy, and justice. There is a pervasive culture of being above the law in some police departments to the extent that terms like “testilying” describe the routine police officer practice of lying under oath. This culture emboldens police officers to falsify statements and fabricate evidence following civilian shootings. This Blue Code penalizes police officers who attempt to speak out against injustices and makes it challenging for people who work with police, such as prosecutors, to hold them accountable without suffering consequences. We need courageous police leaders and police rank and file to call out their unethical colleagues and we need to protect the whistleblowers who do.
9. We need more incentives for local police departments to engage in systemic reform. While the DOJ was unable to hold Officer Darren Wilson individually accountable for Michael Brown’s death, it did determine that the Ferguson police department and municipal government had a pattern of systemically discriminating against black people. These investigations are a tool for systemic reform, but they are costly, do not result in individual accountability, and a pattern or practice of discrimination may be difficult to prove. State and local government should incentivize police reforms and reward police departments that take steps to improve their policies and practices.
10. We need to transform the criminal justice system. At the end of the day, we are expecting a legal system that is responsible for the mass incarceration of black and brown people to mete out justice for those same people. The reality is the criminal justice system needs to be completely overhauled to eliminate the racial discrimination that it helps perpetuate. While we understandably want justice and equality, and seek it through these police indictments and trials, the criminal justice system has functioned to socially control and marginalize black and brown communities. We need to keep this in mind and rethink how accountability looks. Restorative justice may be a way to get police to buy-in while incorporating the voices of victims and their families in the process.
India Thusi is Associate Counsel & Robert L. Carter Fellow at The Opportunity Agenda. She focuses on policies and advocacy to promote a fair and just criminal justice system.