Recent criminal charges of law enforcement officers by elected prosecutors in the wake of nationwide civil unrest raises questions as to the dangers of politicization in law enforcement, and if the state and local criminal justice system is fundamentally damaged as a result.
Pursuant to the 10th amendment of the Constitution, states' rights ensure the power to prosecute violations of local laws. Likewise, the federal government is responsible for enforcement of federal law and constitutional violations. Most local prosecutors' offices are elected, while their federal counterparts are appointed by the president and confirmed by the Senate. Furthermore, The judges ruling on cases brought by local prosecutors are elected as well, while their federal counterparts are presidentially appointed and confirmed by the Senate for life terms — ensuring that they are not subject to political influence once they take the bench.
With an explosion of civil unrest related to both real and perceived police brutality, issues of competence and politicization related to the administration of criminal justice are arguably at the most vital in American history. This is because elected prosecutors in numerous jurisdictions are openly weighing decisions on what laws to enforce and charging decisions for crimes against political trends, which is a violation of the fundamental principals of the American legal system. The question at hand is whether this is because the system itself is somehow "unfair," or that the integrity of that system has been diluted though it's being directed by elected leaders.
Political influence in law enforcement is not a new phenomenon. There is a long and bloody history of legitimizing illicit law enforcement deployment; from union busting to the Jim Crow enforcement; which has since been overcame through legislation, case law and federal prosecutions. Lately, examples of over-prosecution and mischarging by elected prosecutors have illustrated a miscarriage of justice in politically charged cases. Similarly, elected Mayors have openly violated union contracts and violated civil service law by terminating police officers without having completed investigations or hearings showing that they violated departmental policies.
These examples directly illustrate the dangerous consequences of injecting political influence in what should be a skilled leadership role. On a personal level, if you were ill, facing a tax audit, or under criminal indictment you would likely seek out the best doctor, accountant or lawyer regardless of their personality or background to help you. Now consider the differences between how federal prosecutors and justices are vetted for appointments vs. those on a local level. On the federal side, one's record of legal work is weighed carefully against their personal integrity, which is in stark contrast to their elected counterparts on a state and local level who may have the requisite law degree, but may have never practiced as a prosecutor.
Then, under pressure to keep their elected jobs, these prosecutors may make decisions that — while popular with their voters — may jeopardize the outcome of a case or worse, violate the rights of the accused. Anyone working in criminal justice is aware of the political environment. That said, their sworn duty to uphold the constitution is what guides them, and not the status quo of the political machine in their jurisdiction.
With the election of prosecutors whose outside funding and agendas that are popular with progressive voting blocs; blatant examples of legal inequalities have arisen. This is viewed in the recent targeting of police during riots in Atlanta and Philadelphia, while the same prosecutors have overtly refused to charge protestors with the crimes that brought the police to the scene. With such obvious double standards, America runs the risk of appearing like dictatorships where justice and law enforcement agencies are simply assumed to be aligned with the ruling political party in that jurisdiction.
Not only should the politization of criminal justice be illegal in most regards, it jeopardizes the possibility of a civil, national conversation that may eventually lead to positive change. This is because, when prosecutors make charging decisions in cases in the absence of evidence or motive to support the charges (or even a completed investigation) they have tainted the case.
This is evident in Fulton County District Attorney Paul Howard's announcement of multiple felony charges against former Atlanta police officers Garrett Rolfe and Devin Brosnan, for the shooting of suspect Rayshard Brooks. Even though Brooks'video-recorded assault, theft and firing of the officer's Taser during a June 12 arrest for driving under the influence were factors in his shooting, Howard announced a litany of specific-intent charges that cannot be established in the video. Furthermore, Howard cited a Georgia Bureau of Investigation (GBI) investigation in his charging decision; which was publicly refuted by the GBI moments later. More disturbingly, Mr. Howard's own assertions on the legal definition of a Taser as a deadly weapon was refuted by — Mr. Howard himself — who asserted that the same Taser used in the Brooks case was a deadly weapon in his questionable charging of two Atlanta police officers who tased suspects during an arrest just a week before.
In 2015, Maryland State's Attorney Marilyn Moesby prosecuted six Baltimore Police Officers for the murder of suspect Freddie Gray. Moesby overcharged the officers with murder, without evidence of premeditation or intent, alleging that Gray's fatal injuries were a result of a "rough ride" given by transporting officers, despite video showing that Gray's was injured in the initial chase down and tackle by police. All of the officers in question were acquitted in the case, Moesby's credibility was damaged, and Baltimore plunged into violent riots.
In 2018, Allegheny County District Attorney Stephen Zappala charged East Pittsburgh Police Officer Michael Rosfeld for murdering Antwon Rose, a fleeing suspect in a drive-by shooting. In this case, Rosfeld was in a foot pursuit of Rose, who had bailed out of the vehicle chased from the shooting; and shot Rose when he refused to stop and show his hands. Rose had an empty 9mm magazine in his pocket matching one of the two guns recovered from the car. Needless to say, Rosfeld was also found not guilty as he had every right to believe that Rose still had the weapon from the car in his possession.
Then there's the 2017 shooting of suspect David Jones by Philadelphia Police Officer Ryan Pownall, who stopped Jones, a felon carrying an illegal handgun, who fled from the stop on an illegal off-road vehicle and was shot in the back when Pownall observed him reaching for the weapon. This case was declined prosecution by Pennsylvania Attorney General Josh Shapiro and interim Philadelphia District Attorney Kelley Hodge, but District Attorney Larry Krasner reopened the case following his election and charged Pownall with criminal murder, arguing that in the 2-3 seconds in where Pownall took his eyes off Jones to clear his jammed service weapon, Jones threw his gun away and was no longer posing a threat.
Not only does Krasner's politically-motivated case against Pownall fail to meet the legal definition of the crime he was charged with; Krasner actually petitioned the court to change the law in this case, proving it was an unlawful prosecution from the outset. Three years later, the case is still awaiting trial, raising a Habias Corpus defense for Pownall. This case exhibits regular behavior by Krasner, who charged a ranking police inspector and initiated numerous investigations into riot police for using force during unlawful protests; but refuses to charge rioters. This caused U.S. Attorney William McSwain to charge rioters with violations with federal laws, so that they didn't get away with crimes during recent riots.
Examples like these illustrate a need for a national discussion on politicization in the criminal justice system. When decisions are made based on the will of the voter and not the law, side effects are created, which are evident in rising violent crime rates.
A. Benjamin Mannes, MA, CPP, CESP, is a Subject Matter Expert in Security & Criminal Justice Reform based on his two and a half decade career on both sides the criminal justice system. Mannes served in both federal and municipal law enforcement in though the 9/11 attacks, D.C.-area sniper task force, homeland security exercises and natural disasters. Mannes' work in D.C. led to personal encounters with the D.C.'s unlawful personnel actions, unconstitutional gun laws and criminal justice inequalities, which led him to become an advocate for public integrity. Thereafter, Mannes served for nearly nine years as the Director, Office of Investigations for North America's largest medical board, as a Chief Compliance Officer, consultant, expert witness, nonprofit board member and political adviser. Read A. Benjamin Mannes' Reports — More Here.
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