Academic journal article Fordham Urban Law Journal

Policing the Poor and the Two Faces of the Justice Department

Academic journal article Fordham Urban Law Journal

Policing the Poor and the Two Faces of the Justice Department

Article excerpt

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)

FORDHAM URB. L.J.

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.

FORDHAM URB. L.J.

This makes sense: part of a defense lawyer's job is to examine how the police engaged in an investigation. …

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