Public scrutiny of the institutions of government is one of the hallmarks of a functioning democracy. Public scrutiny should be heightened when those institutions of government determine that they are justified in taking someone's life.
Generally there is at least a minimum level of public scrutiny for cases involving the death penalty, and though state governments have tried to cut back on media access to executions, they have not totally banned the media from witnessing these events. But carrying out death penalty sentences makes up only a tiny sliver of the people legally killed by officers of the law in the United States every year. In 2014 and 2015, the United States executed 63 people by lethal injection. This number is dwarfed by the 2,319 people killed by police officers over the same time period, according to data from killedbypolice.net.
For the vast majority of these officer-involved homicides, the officer involved was cleared of criminal charges. In these cases, the government has determined that it was justified in taking the life of an individual, a determination that can only be legitimate if an enhanced level of public scrutiny exists. But for hundreds of these cases, no information at all gets released to the public.
In April the Guardian ran an article about how often police lethal force incidents are found to be justified without the public ever hearing about it. The Guardian found that 1 in 6 deaths at the hands of police officers in the first three months of 2015 were later found to be justified without the public being notified. This is an important finding because the results of investigations into police shootings can only become public when the officer is no longer subject to criminal proceedings. It is these investigations that can tell us the truth (or as close to the truth as we can get) about what really happened, and not just the story that the police wanted the public to hear, often told in the hours right after the person was killed. Hiding investigation results shields authorities from public scrutiny. If no one knows that an officer was cleared, no one can ask why the officer was cleared.
Review of officer-involved homicides in America is usually the responsibility of a district attorney (or state attorney, or one of the many other names for this job; going forward I will use the term "district attorney" to mean the chief legal officer for the state, responsible for filing criminal charges). The review starts when the district attorney's office receives the investigation, which would have been conducted either by the police department responsible, or by an outside or state-run police investigation unit. In some jurisdictions, the district attorney presents the investigation to a grand jury, and the grand jury determines whether or not charges are warranted against the officer, but in most, the review is handled within the district attorney's office. The protocol for reviewing officer-involved homicides varies greatly from state to state and from jurisdiction to jurisdiction. The review can be perfunctory or it could be thorough. Some district attorneys release a great deal of information to the public upon completion of the review: photographic and video evidence, police reports, medical examiners reports, toxicology reports, and a legal rationale for the decision. Some just release a narrative with no accompanying evidence, and some just inform the press that the decision has occurred without any other details (this is most common when a grand jury reviews the investigation).
And some release nothing at all to the public.
Jackie Lacey is the district attorney for the county with the most police killings in the United States, Los Angeles County, California. Since she took office in 2012 through February 2016, there were at least 290 officer-involved shootings in the county. One would think that with such a high number of homicides by police officers, there would be a high level of public interest in her rationale behind declaring each police officer justified (no police officer in Los Angeles County has faced criminal charges for an on-duty shooting in 15 years). But even though Lacey's office does get involved with the investigation and issues a decision memo for each officer-involved shooting, that memo is never released to the media or posted on the DA's website, and the media is never informed of her decision. In 2015 the local NPR station KPCC released a collection of decision letters from Jackie Lacey's office for officer-involved shootings occurring between 2010 and 2014 that KPCC acquired through a request for information. The motivation for KPCC was public scrutiny.
On a large scale, a lack of public information means it’s hard to get a big picture on police shootings. The public is left in the dark on some of the biggest questions: How many unarmed people are shot? What race are those who are shot? What can be done to prevent more shootings?
Why did it take a special investigation from a media organization to acquire the data? It's possible that Jackie Lacey believes she is already releasing the information to the public. Responding to criticism about the district attorney's lack of independence from the Los Angeles Police Department, Lacey wrote an op-ed published in the Los Angeles Daily News on February 28, 2016, where she claimed that her detailed review of officer-involved shootings actually is "public."
My job is to make certain that every shooting is thoroughly reviewed in accordance with the law. To that end, I am confident that if you look at our legal analysis based on the evidence we had at the time, you will find that we made the right call in every case.
But it is impossible for a person to look at the legal analysis when the district attorney refuses to proactively release the information to the public.
The public release of all decision memos to a website ought to be the standard for all district attorneys. Though the practice is still uncommon, there are several district attorneys who already do this, including Orange County (California) District Attorney Tony Rackauckas, Sacramento County (California) District Attorney Anne Marie Schubert, and the District Attorney for Albuquerque, Kari Brandenburg, to name a few.* One of the most transparent offices in the country is led by Clark County (Nevada) District Attorney Steve Wolfson. In 2013, Wolfson changed the office's investigation policy and started posting to the district attorney's web page his decision memos. "It's the right thing to do," Wolfson told the Las Vegas Review-Journal. Of course, it took Eric Holder's Department of Justice releasing a critical comprehensive review of Las Vegas police shootings in 2012 to spur the district attorney's office into doing "the right thing."
* The website of Kari Brandenburg's office contains very detailed decision memos regarding officer-involved shootings, but none more recent than 2014. Brandenburg has become involved in a standoff with the Albuquerque Police Department over her decision to pursue criminal charges against Keith Sandy and Dominique Perez, the two officers who shot and killed homeless man James Boyd in March of 2014. The Albuquerque Police Department has refused to forward their investigations into their officer-involved shootings to Brandenburg's office since that time, according to Brandenburg.
A truly "public" review process requires clear protocols, fast and efficient investigations, and proactive release of information after the review has been concluded. When district attorneys violate the trust of the public, either by stonewalling public requests for information or slow-walking the review process, they may face repercussions from the electorate, such as what happened to Chicago's and Cleveland's district attorneys.
Cook County (Illinois) State's Attorney Anita Alvarez only charged Officer Jason Van Dyke with the murder of Laquan McDonald, even though she had reviewed the incriminating dashcam video a year earlier, because a court order releasing the video to the public was about to go into effect. Cuyahoga County (Ohio) Prosecutor Timothy McGinty took unusual measures to delay the investigation into the homicide of 12-year-old Tamir Rice before urging a grand jury to clear Cleveland Police Officer Timothy Loehmann of wrongdoing, which they did in December of 2015. Both Alvarez and McGinty lost subsequent elections; both were defeated by primary opponents in March of 2016.
Alvarez and McGinty were tough-on-crime district attorneys who struggled to keep up with the post-Michael Brown paradigm of public scrutiny for officers who kill civilians. But in some communities, a long history of public scrutiny of police-involved homicides has led to tremendous improvements in transparency and public trust. Way back in 1996, outrage at the shooting death of Jeffrey Truax by two off-duty Denver police officers prompted former Denver district attorney (and former Colorado governor) Bill Ritter to form a commission to look into "ways to improve the fairness and effectiveness of the investigative and charging process and strengthen both police procedures and public confidence in police officers."
The Erickson Commission, as it became known, recognized that it was in the best interest of the police department and the district attorney to release as much information as possible as quickly as possible in order to quell the public's suspicions about police officers who have killed civilians. The Commission recognized that "public," in the way that Los Angeles County District Attorney Jackie Lacey means (which is more like "available upon request"), is not sufficient to respond to the community's heightened interest in the propriety of officer-involved shootings.
While the entire investigation may be open to the public, very few individuals will have either the time or interest to review it, and those who do might naturally be expected already to have doubts about the filing decision. Especially after initial reports of a police shooting raising unanswered questions about its propriety, the community would be better served by some affirmative action by the police and district attorney to defend their decisions.
Probably no single factor can have a greater impact on this situation than the expeditious review of the investigation and announcement of a decision declining criminal prosecution. However, it is the opinion of the commission that once a decision is made and the investigation can be released to the public, the district attorney and police should take affirmative steps, whether through a decision letter or some other mechanism, like a press conference or use of public information television, to publicize not only the findings of the investigation but also the thoroughness of the investigation, including the procedures followed to guarantee its objectivity. When a decision is made not to file criminal charges, rather than taking a passive interest in publication or even minimizing publicity about the decision, the district attorney and police department have a duty in the public interest to educate the public and defend the decision if necessary.
The Erickson Commission released its findings in 1997, at a time when the internet was little more than a few Yahoo chat rooms and Geocities "under construction" gifs. Now the public is always connected to the internet, so public dissemination of information through "press conference or use of public information television" has morphed into news releases to media groups and the posting of decision memos and evidence from each officer-involved shooting to the district attorney's website.
Current Denver District Attorney Mitch Morrissey has continued to implement the Erickson Commission's recommendations of expeditious review of police shootings and proactive release of information. Most investigations are completed within six months of the incident, and every decision letter since 2000 has been posted to the district attorney's website.
The policies of Morrissey's office are seen by some as positive examples for other offices around the country to follow. Denver's district attorney was cited positively in the DOJ review of Las Vegas shootings as an example for Clark County's district attorney, for instance. The decisions themselves have been controversial in some cases, such as Morrissey's decision not to file criminal charges against the officers involved in killing Jessie Hernandez in January of 2015, and how no police officers have been charged with a crime for a shooting in Denver since 1992. But the content of the decisions are separate from the way the investigations are reviewed and disseminated to the public. We the public know a lot more about the Jessie Hernandez shooting than we know about, for instance, the Los Angeles police shooting of Ezell Ford, a shooting that caused a similar public outcry. And the reason we know more is because the shooting happened in Morrissey's jurisdiction.
The culture of transparent review of officer-involved homicides has spread throughout Colorado. In 2015 a bipartisan coalition of state lawmakers introduced a package of bills to the Colorado General Assembly that aimed to reform not only police practices regarding officer-involved homicides but also increased the amount of transparency district attorneys would be required to provide to the public. One of these was SB219, "Concerning Measures to Provide Additional Transparency to Peace Officer-Involved Shootings." SB219 requires district attorneys in Colorado to "release a report and publicly disclose the report explaining the district attorney's findings" upon completion of the investigation, and to "post the written report on its web site". SB219 enshrined into law best practices for public release of information, though many Colorado district attorneys were already providing a lot of information to the public (Colorado ranks second in the Lethaldb.com, trailing only Oregon in the ranking that combines speed of investigation with completeness of publicly released data). SB219 was signed into law by Governor John Hickenlooper two months after being introduced in the General Assembly.
The Black Lives Matter-fueled nationwide discussion about officer-involved homicides has led to many reforms in many places. It is just as critical to reform the judicial processes surrounding police shootings as it is to reform police department practices. The fact that state houses are writing legislation to increase the transparency of district attorney's offices is a welcome development, directly attributable to the increase in the public's attention span since the Michael Brown shooting. It's amazing what a little public scrutiny can do.
(cross posted at the Lethal Force Database, www.lethaldb.com)