Mimesis Law
22 May 2019

Would David Simon Call Prosecutors the Other Perfect Tyranny Left in America?

June 14, 2016 (Fault Lines) — Baltimore journalist turned television writer and producer David Simon frequently refers to cops working their beat as the last tyranny in America. Simon has come to believe that much of law enforcement is aimed at social and class control. And law enforcement, at least Baltimore law enforcement, enforced its own code of behavior with little oversight.

Simon sees the system as self-perpetuating, with the officers who are the most aggressive on the street getting the most praise and promotions. So, if you clear the streets and make your bosses and politicians look good, then that’s approved as solid police work.

Because Simon sees law enforcement engaged in something like a low-intensity war with the populace, he has naturally referred to them as an army of occupation, though he’s probably not going so far as to compare it to the Japanese occupation of China and the accompanying Rape of Nanking.

In contrast, there are certainly others who would argue that such statements are over-heated and hyperbolic. To those folks, it sounds something like the white, liberal counterpart to the Agenda 21 conspiracy theory. Others, such as Radley Balko, have been critical of law enforcement practices without resorting to dystopian imagery. Still others approach the issue with sarcastic resignation mixed with indignation.

At the core of most of the criticism and concern is the level of discretion individual officers have and the relative lack of accountability in some departments. For example, in a series of decisions the Supreme Court has given cops broad authority to stop, arrest, and jail citizens with few consequences either to the criminal case or to any civil rights action. Regarding one of the more recent cases, Scott Greenfield explains it like this:

Before Heien, there was a bright line test that the story cops made up had to at least be a crime. When that proved too much for police to accomplish, they moved the goal posts to criminalish, because actually knowing what was unlawful was the bar by which citizens were judged, but too much to expect of cops. * * *

What this reflects isn’t sound legal doctrine, but a policy choice: that cops get a free pass and you don’t. The less they know, the broader their authority. The less they know, the more luxurious their baseless assumptions.*** The less they know, the more we forgive their errors.

Beyond the law, accountability has been an issue. Chicago’s police, for example, has been declared a systematic failure. And before them, the Justice department occasionally parachutes into a city, strong arms a consent decree from the city, and then declares mission accomplished. Despite these problems, the fact that eventually journalists, citizens, and local, state, and federal politicians demand more accountability under cuts Simon’s occupying force comparison.

And in the smaller and mid-size law enforcement offices, there is not usually the hostility towards the populace that Simon saw in Baltimore. Beyond the smaller scale of the bureaucracy, this may be due to the officers in large cities being demographically different. See also Ferguson, Missouri. In these less bureaucratic local agencies, with officers drawn from similar demographics, there seems to be more accountability to the community.

Here’s another point worth noting. Because suburban kids aren’t usually seen working a corner, patrol work is more about traffic stops, consequently making broken windows policing is less demanding and thus deadly. Of course, none of that is to say that there ought not to be rules ensuring compliance and accountability.

What patrol officers do is increasingly videoed and held out for public scrutiny. Even David Simon believes that videotaping is a game changer. Moreover, when police give suspects a rough ride, over-deploy the Taser, or routinely make bad arrests or stops, those are problems the public can see and understand. For example, when was the last time you saw an officer carry a PR-24 tonfa? You might remember them here. And zapping grandpa in a wheelchair with a Taser is not something so easily overlooked any more.

On the other hand, the craft of lawyers is hidden behind incantations, ceremonies, and ritual. Like those uninitiated into Greek mystery cults, what we do is obscure and esoteric to most. And we refuse to use plain language and sometimes insist on Latin, just to prove how special we are compared to the unwashed. Because we shroud ourselves in mystery, it makes it difficult far too often to hold lawyers publicly accountable. The public does not know what we’re doing, and we can hide behind judgment calls to avoid nearly anything short of a crime.

But we give the public an olive branch; we’ll police ourselves, we say. After all, it’s hard for the lay person to really judge what we do. We’ll write the rules because we’re professional rule writers. And as professionals, we’ll be demanding of others in our profession, we promise. Except not so much. Those lawyers in California hated the attempt at accountability so much, they fired the guy trying to do his job in bringing bad lawyers to account.

So, in a system with less transparency and thus less public accountability, some New York prosecutors want to completely avoid the public accountability that comes with a public job. The fact that a similar commission exists for judges and forces an average 1.5 bad judges from the bench a year is of no matter. And this stat probably underplays the seriousness of the problem because commissions are usually captured by those they oversee. Arguably the numbers might be less for assistant prosecutors, who are neither elected nor appointed, and instead are supervised. But an average of one a year still can leave behind a lot of carnage.

While attorney discipline ought to be more frequent and tougher than it is, and the rules so require greater skin in the game, prosecutors hold more direct public trust than do defense counsel. Public defenders indirectly ensure that constitutional rules and norms are followed system wide through being institutional adversaries. But prosecutors alone are vested with the charging discretion.

Prosecutors seek justice, actively pursue wrongdoers, and ensure that the laws are enforced. And this means the power to criminally charge the powerful local politician or the young kid engaged in youthful misbehavior. It’s a significant power of the office that is not subject to much formal oversight. The trial judge is usually the first and last check on the prosecutor’s power, and even then, it’s reviewed on a case-by-case basis. And, if California is representative, then the state bars are usually not interested in pursuing prosecutors.

In addition, in the states crazy enough to allow prosecutors to join public unions, collective bargaining can add another obstacle to transparency. In a highly discretionary job with few specific rules, allowing prosecutors to bargain for conditions of employment will ensure little misbehavior will see the light of day and in the event that it does surface, but a scant few bad prosecutors will lose their jobs.

New York’s proposed commission may be a bad idea or just an empty promise, like many other accountability projects. But simply objecting to accountability because it makes you more accountable is not the right tone to take.

For example, in Ohio, there is no safety valve if a local prosecutor indulges individual, criminal misbehavior by public officials. Unless the prosecutor agrees to appoint a special prosecutor, sheriffs and other elected officials cannot be brought to justice.

And this is particularly problematic because the prosecutor serves as the office’s civil counsel and thus will have a conflict of interest. If a prosecutor fails to give sufficient legal guidance or oversight, then that prosecutor may not want to bring criminal charges out of fear of embarrassment or whatever. As it stands, unless the state bar intervenes, the prosecutor can hold on to criminal cases where he or she has a conflict forever without consequence. The public can be legitimately concerned that a lazy or unscrupulous prosecutor has no oversight in matter where there is an apparent conflict.

The hesitation of the New York prosecutors is understandable, but if you’re doing a good job, within the bounds of the law, then you have little to fear. Sure, Tim McGinty can tell you how sometimes a bad call costs you a job. But there is every reason to believe that’s the exception and not the rule. Besides, in life bad things happen to good people. And that’s not reason enough to avoid accountability.

2 Comments on this post.

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  • Wrongway
    15 June 2016 at 4:45 am - Reply

    There are so many things I’d like to point out.. but the 1st of them is your post. Thanx for this.
    aren’t you now a prosecuter? .. If so this post goes a long way for me personally.
    Calling for accountability for prosecutors is ‘valiant’ when there basically is none thanx to the Harry Connick Sr. decision..
    And thanx to the Heien decision, the very people that will put me before a prosecutor, don’t really have to know what they’re doing.. great..
    It just makes me feel all warm & fuzzy knowing that another commission is being started..
    Maybe it’s a start, but us schmuks who wind up in the system pretty much know how this is gonna turn out.. it’s been done before.. & just look at the results..

    But Thanx For This Post..

    Sincerely,

    Wrongway

    P.S. wow I just read my post again & sorry for the tone.. I guess I’m a Cynic ..

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    7 February 2017 at 9:48 am - Reply

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