Introduction 1431 I. The Civil Rights Division and Policing 1435 II. The United States Attorneys' Offices and Policing 1440 Conclusion 1446 INTRODUCTION
When police misconduct reaches a boiling point in cities throughout the country, there is a common refrain: "call in the feds." And "the feds" have often responded. During the Obama Administration, the Civil Rights Division of the Department of Justice issued reports and entered into consent decrees with several police departments, including Chicago, Baltimore, Ferguson, and New Orleans. The reports detailed widespread patterns and practices of unconstitutional stops, searches, seizures, stark racial discrimination, and lack of accountability for misconduct. The findings exposed and explained persistent problems with policing and highlighted how police misconduct disproportionately affects the poor and people of color. (1)
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But even during the Obama Administration, the work of the Justice Department failed to address another significant contributor to police misconduct: the Justice Department. The very same problems with policing identified by the Civil Rights Division were, and are, exacerbated by the daily work of federal prosecutors in U.S. Attorneys' Offices, offices overseen by the Criminal Division of the Justice Department. (2) This occurs because a significant number of federal criminal prosecutions now derive from local police arrests, and the prosecutors in those cases routinely obstruct efforts to examine the behavior of police officers. They do so by using the threat of more severe sentences to dissuade the accused from going to trial or from filing motions to suppress evidence alleging constitutional violations of the exact same variety cited by the Civil Rights Division, such as illegal stops, searches, seizures, and interrogations. (3)
Moreover, on the occasions when the accused risk those severe consequences by going to trial or filing motions to suppress, prosecutors fight defense efforts to access or use records showing prior misconduct by the officers whose conduct is at issue, and defend the officers to the hilt--sometimes even after a judge finds serious wrongdoing. (4) Indeed, in New York City alone, at least twenty police officers testifying in federal criminal cases have been found not credible by federal judges, yet no adverse actions were ever taken against the officers by federal prosecutors (or by anyone else). (5) These actions by federal prosecutors are all the more significant because of the growth in joint local and federal investigations. Cases involving drugs, gun possession, and robbery that were once exclusively prosecuted in state court are now routinely brought by federal prosecutors for the purpose of imposing more severe sentences and, in many instances, affording defendants fewer procedural rights. (6) The prosecutions fall heavily on poor people of color: approximately eighty percent of all federal defendants are too poor to hire a lawyer and roughly three-quarters are non-white or Hispanic. (7) Federal prosecutors thus rely heavily on, and protect, local police officers whose misconduct might, under different circumstances, be exposed by a Civil Rights Division investigation.
When it comes to federal prosecutors' role in holding police officers accountable for illegal conduct, public debate often focuses on whether prosecutors should charge an officer for excessive force in a high profile death, such as the shooting of Michael Brown in Ferguson or the choking of Eric Garner in New York City.(8) Far less noticed is how federal prosecutors respond to allegations of police misconduct in the thousands of criminal cases they prosecute every year. Police misconduct is routinely discovered in criminal cases.
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This makes sense: part of a defense lawyer's job is to examine how the police engaged in an investigation. Did the police stop or search someone unlawfully? Did they conduct an illegal, coercive interrogation? Are they telling the truth about how they found evidence? But just because defense lawyers discover misconduct doesn't mean it ever gets revealed to a judge or jury, much less the public or policy makers. That is because prosecutors regularly block efforts to challenge any aspect of a case, including (and sometimes especially) claims about police misconduct.
In this symposium celebrating the work of David Caplovitz and the very literal ways that the poor pay more, I explore how the poor pay more in another respect: in time and freedom as a result of police misconduct. And I do so in the context of the federal criminal justice system, where the Justice Department's Criminal Division often contributes to the problems the Civil Rights Division identifies in its investigations of police misconduct. The troubling practices by the Criminal Division cut across administrations. These practices have existed in Democratic and Republican regimes. Although they have been more or less acute at times (for example, under President Obama's Attorney General, Eric Holder, concrete policies helped alleviate some of the problems while under President Trump's Attorney General, Jeff Sessions, new policies will exacerbate them (9)), these practices have ultimately proved to be persistent.
It is not hard to understand why the two faces of the Justice Department exist. The Civil Rights Division's investigations into police departments fit squarely within its stated mission and accords with its history and self-perception as a defender of constitutional rights against state and local government actors.(10) By design, federal authorities in those investigations are outsiders who can freely criticize police officers with whom they will not repeatedly work after the criticisms are leveled. Their involvement is, indeed, predicated on the unwillingness or inability of local prosecutors to hold their police forces accountable for misconduct.(11) But federal prosecutors have increasingly come to rely on those same state and local actors--namely, the police and district attorneys' offices--to bring a large number of their cases. For federal prosecutors, criticizing those "partners" in law enforcement comes at a price. If the Justice Department has acknowledged this fact, it certainly has not done so publicly, nor has it implemented relevant reforms.
The incentives for federal prosecutors to shield police officers from claims of misconduct are especially problematic because of how much power federal prosecutors wield. They can and do erect high barriers to challenges to police behavior--barriers that overwhelmingly impact the poor and racial minorities. Scholars have written extensively about the problem of too much power in the hands of federal prosecutors, among them, overly severe sentences, diminished procedural rights, and wrongful convictions. (12) This Essay highlights yet another problem: impeding the cause of police reform, as advocated by the Justice Department itself.
THE CIVIL RIGHTS DIVISION AND POLICING
The Justice Department has a well-deserved and storied reputation for its work advancing civil rights. The 1957 Civil Rights Act led to the creation of the Civil Rights Division, charged with enforcing all federal statutes affecting civil rights. (13) In its early years, the Division focused on voting rights and school integration. (14) With the passage of the 1964 Civil Rights Act, it began to address a broad spectrum of public accommodation cases.(15) Over the ensuing decades, with additional statutory authority, the Division expanded to address all manner of civil rights violations relating to housing, employment, prisons, and disabled persons. (16)
Recently, the Division's most notable civil rights work has been its investigations into local police departments. (17) In the past two years, the Division issued three major reports on policing in Chicago, Baltimore, and Ferguson. (18) Earlier investigations scrutinized New Orleans and Cincinnati. (19) Although the reports varied in their emphasis, a few common themes emerged. Police in those cities routinely violated the constitutional rights of residents, did so in a racially discriminatory manner, and were rarely held accountable for their misconduct.
The report on Chicago focused on police officers' excessive use of force and the city's failure to appropriately investigate the cases. (20) The report uncovered numerous incidents in which the police "shot at suspects who presented no immediate threat" and used significant non-lethal force "against people who posed no threat" as well as "unreasonable retaliatory force and unreasonable force against children." (21) It found that the city failed to "investigate the majority of cases it is required by law to investigate." And, in the cases the city did investigate, the report found that the investigations suffered from "serious flaws that obstruct objective fact-finding," such as failing to interview key witnesses (including the officers' themselves), promoting an environment of collusion among officers, and investigative interviewing techniques that "aimed at eliciting favorable statements justifying the officer's actions rather than seeking the truth" by "failing to challenge inconsistencies and illogical officer explanations." (22)
The Baltimore Report was sweeping in its criticism of police misconduct. Included among the findings were: (1) the Baltimore Police Department ("BPD") routinely made unconstitutional stops, searches, and arrests; (2) BPD discriminated against...