Patrick Lyoya was killed at the hands of a Grand Rapids police officer. Now, it must be investigated by an outside prosecutor. The Grand Rapids Police Department and city officials’ lack of response, and long history of failing to hold police officers and their leaders accountable, are what led to Mr. Lyoya’s killing. Appointing a prosecutor outside of Kent County, who does not work regularly with the GRPD, is one step toward accountability. In many states it is legally required to appoint an outside prosecutor and is widely acknowledged to be best practice.
Prosecutors who work day-to-day with a particular law enforcement agency should not be responsible for prosecuting police shootings by that agency.
Police work daily with prosecutors and exert significant control over them in both formal and informal ways. For example, in sociological research examining police and prosecutorial practice in Chicago, prosecutors described pressure to comply with a police culture of “silence and violence” and to operate with “blinders” on when prosecuting their regular caseload. This meant that questioning an officer’s version of events, even where clear signs of official misconduct existed, was seen as a sign of “disrespect” to the officer. Similar, or even stronger, pressure to apply “blinders” would apply when deciding whether to charge a police officer for an on-duty homicide.
Accordingly, any decision by prosecutors not to pursue criminal charges against an officer in a law enforcement agency that they work with on a day-to-day basis will raise questions about the ability of the prosecutor to review the evidence objectively. Failing to address this issue will undermine public trust not only in individual case decisions but in the legal system as a whole.*
Multiple states have legal requirements for an external prosecutor in police killings.
In California, state law authorizes the Attorney General to investigate and, if warranted, prosecute officers for police killings of unarmed civilians. In Connecticut, state law requires the Chief State’s Attorney to designate an outside prosecutor for every investigation of a police killing. In Maine, state law grants exclusive responsibility to the state Attorney General to direct and control any criminal investigation of officer use of deadly force. In New Jersey, under a statewide directive, the state Attorney General investigates and, if warranted, pursues prosecutions in all police killings. In New York, state law requires the state Attorney General’s Office of Special Investigation to investigate and, if warranted, prosecute police killings and deaths in custody.
Reliance on outside prosecutors is considered a best practice, including by some law enforcement leaders.
The White House’s 2015 Task Force on 21st Century Policing (which was co-chaired by former Philadelphia police commissioner Charles Ramsey and George Mason University criminology professor Laurie Robinson) recommended that jurisdictions adopt mandatory investigations led by external, independent prosecutors whenever police use of force results in death, an officer-involved shooting results in injury or death, or a person dies in custody.
How to structure an outside prosecution
The system that states have most commonly used for an outside prosecution is to create a dedicated office within the Attorney General’s office that both oversees an independent investigation and then makes prosecutorial decisions based on that investigation. Where no state-level system exists, the White House Task Force on 21stCentury Policing recommended that local authorities arrange for another jurisdiction to handle the investigation and prosecution decisions. Any agency assigned should have sufficient resources and experience to handle this type of case.
*Kate Levine, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447 (2016) (arguing that local prosecutors have a structural conflict of interest that impacts the legitimacy of their role when investigating and deciding whether to prosecute police officers in the law enforcement agencies they work with).