A4_LEVINE.DOCX (DO NOT DELETE) 4/20/2016 10:49 AM
2016] WHO SHOULDN’T PROSECUTE THE POLICE 1449
The prosecutor’s role in modern criminal law is among the most heavily
theorized. Do prosecutors have too much power?1 What is the appropriate
balance between plea bargaining and trials?2 What is a prosecutor’s
motivation in a given case or set of cases?3 Do prosecutors bring too harsh
charges? Too few charges?4 These are just a few of the questions about
prosecutors that scholars contemplate with rigor and complexity. Yet,
prosecutorial conflicts are largely absent from this analysis.5 In the following
pages, I use conflict-of-interest law to conduct a novel examination of a local
prosecutor’s conflicting values when she must charge and lead cases against
the police in her own jurisdiction.
The nonindictments after police officers choked Eric Garner to death
and fatally shot Michael Brown have forced many to once again confront
questions about police violence and criminality. As part of that conversation,
politicians are starting to focus on the dysfunction of our local, adversarial
justice system as it relates to police killings of civilians.6
1. See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from
Administrative Law, 61 STAN. L. REV. 869, 871 (2009) (“One need not be an expert in separation-
of-powers theory to know that combining [many] powers in a single actor [(the prosecutor)] can
lead to gross abuses.”); Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable
Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1698 (1992) (noting “the extent to which
enhanced prosecutorial power would fill the judicial vacuum created by t he [sentencing]
guidelines”); William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 594
(2001) (noting one “dangerous prosecutorial power: the power to stack charges, to charge a large
number of overlapping crimes for a single course of conduct”).
2. Compare George Fisher, Plea Bargaining’s Triumph, 109 YALE L.J. 857, 859 (2000)
(critiquing too much plea bargaining), with Robert E. Scott & William J. Stuntz, Plea Bargaining
as Contract, 101 YALE L.J. 1909, 1910 (1992) (“Not only is the practice [of plea bargaining]
widespread, but participants generally approve of it.”).
3. See, e.g., Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117, 1128 (2008)
(“[P]rosecutors carry mindsets of ‘nondefeat’—aversions to dismissal that they keep in all cases,
but that are most pronounced in cases against recidivists. In this sense, prosecutors consistently
function as conviction maximizers even if they only rarely operate as sentence maximizers.”
(emphasis omitted) (footnote omitted)); Steven Alan Reiss, Prosecutorial Intent in Constitutional
Criminal Procedure, 135 U. PA. L. REV. 1365, 1366 (1987) (noting the importance of prosecutorial
intent in constitutional claims).
4. See, e.g., Stuntz, supra note 1, at 579–82; Ronald Wright & Marc Miller, The
Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 33 (2002) (“A particularly noxious form of
dishonesty is overcharging by prosecutors—the filing of charges with the expectat ion that
defendants will trade excess charges for a guilty plea.”).
5. See infra Part II.A.
6. See Exec. Order No. 147, A Special Prosecutor to Investigate and Prosecute All Matters
Relating to the Deaths of Civilians Caused by Law Enforcement Officers (N.Y. July 29, 2015); see
also Erin Durkin, State Pols Propose Bill to Create Special Prosecutor for Police Killing Cases , N.Y. DAILY
NEWS (Dec. 4, 2014, 2:55 PM), http://www.nydailynews.com/blogs/dailypolitics/state-pols-propose-
special-prosecutor-police-killings-blog-entry-1.2033542; Ben Kamisar, Majority in Survey Backs Special
Prosecutors in Police Shootings, HILL: BRIEFING ROOM (Jan. 19, 2015, 2:47 PM), http://the