Criminal prosecution of police officers raises a myriad of issues that this Article will begin to explore. First, while there has been a paradigmatic shift in police accountability in recent decades from remedies focusing on individual officers to those focusing on broad organizational reform, this Article will explore the important role that the deterrence rationale of criminal prosecution might play as one tool to address police misconduct. Second, other than deterrence, criminal prosecutions serve numerous goals, including retribution for the harms imposed upon the victims and society for the crimes. Historically, many racial minorities, when compared with their white counterparts, lack faith in equity and fairness of the criminal justice system. Recent deaths of unarmed blacks at the hands of police and what many see as a failure to hold the officers accountable, have yet again exposed the racial dynamics at play within the criminal justice system.

Part I of this paper summarizes the various tools currently used to keep police officers accountable for their actions, and contextualizes criminal prosecution as one tool in the toolkit of police accountability--one blade on the Swiss-army knife needed to achieve effective and sustainable police accountability. Part II will argue that the current manner in which many local prosecutions proceed, which is replete with potential (and inherent) conflicts of interest, undermines both the deterrence rationale and public confidence in whether both victims and police officers are treated fairly when local prosecutors are responsible for investigating and deciding whether to criminally charge officers. This part will explore the challenges and dangerous implications of the current model. Part III of this Article will explore the merits of several proposals to reform this process, focusing primarily upon the appointment of independent prosecutors rather than local ones to investigate and prosecute police-involved deaths.

This abstract has been adapted from the author's introduction.

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49 Washington University Journal of Law & Policy 137-158 (2015)


Published in the special issue Ferguson and Beyond.