Fred Lucas
After grand juries opted not to
indict police officers in the deaths of Michael Brown and Eric Garner, calls
increased among activists and some members of Congress to require special
prosecutors — not local district attorneys — to investigate cases of police
using deadly force.
Such requirements could be
difficult, but not impossible, to push from the federal level, according to a
Congressional Research Service legal analysis.
Demonstrators march in New
York, Saturday, Dec. 13, 2014, during the Justice for All rally and march. In
the past three weeks, grand juries have decided not to indict officers in the
chokehold death of Eric Garner in New York and the fatal shooting of Michael
Brown in Ferguson, Mo. The decisions have unleashed demonstrations and
questions about police conduct and whether local prosecutors are the best
choice for investigating police.
Demonstrators march in New
York, Saturday, Dec. 13, 2014, during the Justice for All rally and march.
Grand jury decisions not to indict police officers in the deaths of Eric Garner
and Michael Brown have unleashed demonstrations and questions about police
conduct and whether local prosecutors are the best choice for investigating
police. (AP Photo/John Minchillo)
Proponents of such a federal
law contend that the symbiotic relationship between prosecutors and the police
they work with in fighting crime creates a conflict of interest when a police
officer is suspected of misconduct.
“In the twin cases United
States v. Morrison and United States v. Lopez, the Supreme Court rejected the
argument that local crime had a sufficiently substantial effect on interstate
commerce to bring it within the scope of Congress’s Commerce Clause authority,”
the CRS analysis said. “It would appear that a similar argument that police
shootings substantially affect interstate commerce would be equally
unavailing.”
The Morrison case from 2000
found that some provisions of the Violence Against Women Act were
unconstitutional because Congress exceeded its power under the Commerce Clause.
The 1995 Lopez decision was a gun case in which the high court similarly
determined Congress misapplied the Commerce Clause.
Christopher Adkins, a criminal
defense attorney in Huntersville, North Carolina, said it’s rare that special
prosecutors are ever used. He admits as a former Charlotte police officer for
seven years, he’s conflicted because he wants what’s best for the officer, even
though he thinks the relationship with police and prosecutors is too close.
“Whenever there is a prosecution of police,
there most certainly is a conflict of interest,” Adkins told TheBlaze. “These
folks work together every single day and develop a relationship. A lot of time
things are either swept under the rug or it’s a small penalty. States do
whatever they can do to avoid prosecuting police.”
Special prosecutors have been
used at the state and local level for some time, well before the term became
better known for national cases during Watergate.
“Historically, special
prosecutors have been appointed to try criminal cases in two instances: first,
when the case poses a conflict of interest or some other disqualification for
the prosecuting attorney (such as when he himself is a criminal defendant),
and, two, to handle political or controversial prosecutions that government
officials fear will not be prosecuted absent a special counsel,” the CRS report
said.
A petition by the liberal group
MoveOn.org gathered more than 117,000 signatures that called for a special
prosecutor in the Ferguson, Missouri, case of Michael Brown.
Potentially, the most likely
way for Congress to intervene in a local investigation would be the use of the
purse strings, the CRS said.
“Congress might rely on the
Spending Clause to condition the acceptance of federal law enforcement grants
upon the states’ adoption of special prosecutor laws,” the analysis said. “This
route might alleviate concerns that Congress is interfering with the states’
criminal justice processes as the states can choose whether to adopt the
proposed changes.”
The proposed Grand Jury Reform
Act, sponsored by Rep. Hank Johnson (D-Ga.) would make federal law enforcements
funds contingent on the appointment of a special prosecutor to conduct a
probable cause hearing if there is a police misconduct case that led to
someone’s death.
The bill would essentially use
federal funds to nationalize the various state laws that already exist
regarding special prosecutor laws.
The state of New York allows
the governor to appoint a special prosecutor in such a case. Democratic
Attorney General Eric Schneiderman has called for Democratic Gov. Andrew Cuomo
to name a special prosecutor to reexamine the Garner case, who was killed
following a confrontation in Staten Island with a New York City police officer.
Missouri, where Brown was shot,
permits the appointment of a special prosecutor by the court presiding over the
case. Several other states allow a court to appoint a special prosecutor.
Connecticut is the only state
that automatically requires the appointment of a special prosecutor after
someone dies as a result of police using deadly force, according to the CRS
analysis. In California, the grand jury has the ability itself to appoint a
special prosecutor.
One other unlikely avenue for
Congress to intervene is through Section Five of the Fourteenth Amendment,
which allows the federal government to remedy constitutional violations. The
section says, “The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”
“Under this theory, Congress
must identify a pattern of constitutional violations by state actors, but it is
far from clear whether the unconstitutional use of deadly force has been
pervasive enough to trigger Congress’s Section 5 remedial power,” the CRS said.
