Our View: Finding a fairer way to review police killings
U.S. Attorney General Eric Holder on Wednesday promised a federal civil rights investigation into the death of Eric Garner at the hands of a New York City police officer.
It was a calculated move after a grand jury’s decision not to indict the officer set off widespread protest and outrage from a nation reeling from the Michael Brown case in Ferguson, Mo.
“Our prosecutors will conduct an independent, thorough, fair and expeditious investigation,” Holder said.
What Holder implied was that the local grand jury process was none of those things – “thorough,” “fair” or “expeditious.”
Garner died in July while being arrested for selling untaxed cigarettes. A bystander’s videotape shows white officers piled atop Garner. One held Garner, who is black, in a chokehold – a hold NYPD officers have been ordered not to use in subduing suspects. Remember, Garner was not violent and there were no victims of his crime other than the state’s ability to collect taxes on single cigarettes. He offered no resistance and the response to his crime appears to have been extreme.
Garner is heard croaking “I can’t breathe” several times before going into cardiac arrest. His final words are being echoed by another wave of protests.
Perhaps Holder is trying to defuse a Ferguson-style riot in the nation’s largest city. But his action amplifies a growing call by civil rights advocates, community groups, legal scholars and even some law enforcement advocates to change the way we investigate officer-involved killings.
When an officer or deputy kills someone in the line of duty, local district attorneys must decide whether to file charges. Police agencies themselves conduct internal reviews, though they are secret, as are the punishments in most cases. A few prosecutors use grand juries to review evidence, though in these closed proceedings the prosecutors determine what witnesses to bring before the jury and how to present the evidence.
The problem is that prosecutors and local law enforcement most frequently are partners in the fight against local crime. They rely on each other to get their jobs done.
Do such relationships skew decisions about whether to charge officers in death-in-custody cases? We don’t know. But it’s a powerful perception, especially in light of the Brown and Garner cases.
There are ways to evaluate death-in-custody cases that don’t rely on local DAs, primarily using outside experts to remove the appearance of bias. They would be trained lawyers, officers, or panels of both. It would be important that they not have a connection to the local agencies or an incentive to protect those under review.
Some have suggested reviving the inquest, a quasi-official investigation not widely used since the 19th century. Both ideas are worth considering.
How many cases this would entail is unknown. There’s no comprehensive collection of data on civilians killed while in custody or in the process of arrest. The best numbers, which aren’t reliable and likely under-reported, put it at several hundred cases a year – more than 100 in California.
The cost must be considered. But the deteriorating trust between law enforcement and significant segments of the public could exact a much higher price if we allow it to continue.
This story was originally published December 4, 2014 at 5:44 PM with the headline "Our View: Finding a fairer way to review police killings."