When prosecutors won’t prosecute, what can cops do?
Thomas Hogan October 5, 2021 @ City Journal
Yet again, the Chicago Police Department finds itself at
loggerheads with State’s Attorney Kim Foxx about charging a criminal
with a crime. First, it was low-level crimes that Foxx declined to
prosecute. Then it was celebrity nonsense,
with the Jussie Smollett hate-crime hoax. Next, it was the murder of a
little girl. And now, it’s a deadly gang shootout. The larger issue is
whether the police (and the public) have any options when a prosecutor
refuses to prosecute, even when the evidence for guilt seems
overwhelming.
On August 15, seven-year-old Serenity Broughton was sitting in the
backseat of a car with her six-year-old sister. A gunman blasted away at
someone near the car, killing Serenity
and critically wounding her sister. Even in a city as violent as
Chicago, the death of a little girl hit home. Chicago PD detectives
worked around the clock and built a case against a suspect. But Foxx’s
office declined to arrest the suspect
and attempted instead to cast blame on police by implying that their
investigation was deficient. Meantime, five participants in a gunfight
that killed one person were released from custody this week, with Foxx reportedly citing “mutual combat” as the reason for dropping the case.
What can police do when a prosecutor won’t prosecute?
Most major felony charges require the approval of prosecutors. In
Broughton’s case, the Chicago PD used an “emergency override” procedure
to arrest and charge the suspect without prosecutor approval. But Foxx
would not let that stand. She called the police chief, and the arrested
suspect was un-arrested. Even if Foxx had not succeeded in freeing the
suspect at that point, she would have done so at the first official
hearing. That rules out one option for the police to make charging
decisions in defiance of Foxx.
The next option for police is to find another prosecutor. This
approach worked in the Jussie Smollett debacle. After Foxx’s office
dismissed the charges, an outraged judge appointed a special prosecutor
to take over the case. The special prosecutor recharged Smollett with felony offenses for making false reports to the police. Those charges remain pending.
But unless you find a supportive judge and the case is as notorious
as Smollett’s, then the appointment of such a special prosecutor is
extremely unlikely. The police still can take cases to state attorneys
general or federal prosecutors, but both have limited jurisdiction over
cases involving murder and lack the capacity to handle all the cases
that a politician like Foxx fails to prosecute. Another dead-end for the
police.
A time-honored approach for police dealing with a recalcitrant
prosecutor is to take the case to the media and the public. In 2017, an
outraged police union publicly attacked Philadelphia’s then-district
attorney Seth Williams for failing to charge a teenage girl who punched a cop
in a scuffle. The local press ran with this story and others critical
of Williams, but now the media tide has turned. Philadelphia police
would love to use the media to attack progressive district attorney
Larry Krasner, who has presided over a soaring murder rate, rising
public disorder, and general disrespect for the police. But the local
newspaper of record, the Philadelphia Inquirer, has endorsed
Krasner twice. Nor do police tend to get good press in other cities
with progressive prosecutors. Cross another option off the list.
Formal legal remedies offer an intriguing possibility. In some
states, citizens can bring private criminal complaints to force a
district attorney to file substantiated charges. In Georgia’s Ahmaud
Arbery murder case, the state attorney general charged the local
district attorney for not bringing charges
against all three defendants initially. If an attorney general can
charge a local district attorney for failure to indict in one homicide
case, then the Illinois attorney general might be able to charge Foxx
for not doing so in the Broughton or the Smollett cases, though politics
will surely come into play. Perhaps Broughton’s family or another
private citizen could bring an action in equity, demanding an injunction
to force Foxx to follow the law and uphold her oath. Prosecutorial
discretion is a core principle for prosecutors, but it doesn’t confer
unlimited power.
Ironically, by the terms of 42 U.S.C.A. § 1983, prosecutors would be
liable via a civil rights suit for their de-prosecution decisions if
such choices were based on race, but prosecutors have absolute immunity
under that statute, so they can’t be liable. However, under the language
of 34 U.S.C.A. § 12601—the federal provisions that empower the
Department of Justice to investigate and impose sanctions or consent
decrees on police departments for a “pattern or practice” of
misconduct—the DOJ could do the same thing to prosecutors who
systematically fail to uphold the law.
Is there any chance that the Biden Justice Department would be
willing to wade into this political thicket? Don’t count on it. But some state attorneys general now have similar authority, so a law-and-order attorney general could attempt this strategy with a progressive urban prosecutor.
A darker and more depressing option for the police is simply to stop
policing. If prosecutors like Foxx, Chesa Boudin in San Francisco,
Marilyn Mosby in Baltimore, and a growing cast of others won’t prosecute
crimes, then maybe the police shouldn’t bother trying to arrest people.
Just stay in your patrol car and drive around, cleaning up the shell
casings and the bodies after the shooting stops. Debate has persisted
about de-policing linked to civil protests, as in the so-called
Ferguson Effect triggered by the protests after the shooting of Michael
Brown in Ferguson, Missouri. There may be a similar de-policing movement
taking place in cities like Chicago—call it the Foxx Effect.
The nuclear option is simply to quit. The police can put up with
being attacked by criminals; that’s part of the job. They can live with
media coverage claiming that they are racist thugs. They can laugh at
law school professors who criticize law enforcement tactics; that’s like
having toddlers throw feathers at you. But when the police work day and
night to bring charges against violent and clearly guilty offenders,
trying to achieve closure for victims’ families, only to see those
arrests thwarted at every turn by prosecutors like Foxx, it may be time
to find another job. Increasingly, police seem to be doing just that.
In short, police don’t have many options if prosecutors won’t
prosecute. They can’t charge offenders themselves. Not enough
law-and-order minded prosecutors have jurisdiction. Depending on the
media is a dead end if the media shields progressive prosecutors from
criticism. Some novel legal theories could yield promising results, but
taking that path depends on someone having the political will and moral
courage to bring the first case. De-policing or quitting entirely may
become the only viable alternatives for police. The big losers in the
case of CPD v. Kim Foxx will be the people of Chicago, who will be left
with no police, a non-prosecuting prosecutor, and more dead children.
Tom Hogan has served as a federal prosecutor, local prosecutor, and elected district attorney. He currently is in private practice.
Photo by Kamil Krzaczynski/Getty Images
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