Why are successful prosecutions of police officers so rare? Monday’s acquittal of Baltimore police officer Edward M. Nero in connection with the death of Freddie Gray again raises that sobering question — and some of the usual explanations don’t apply here.
While prosecutors have all too often been reluctant to bring cases against those with whom they work, Baltimore City State’s Attorney Marilyn Mosby charged the case promptly and aggressively. While jurors have all too often balked at convicting those sworn to protect them, Nero’s case was tried before, and decided by, an experienced judge, who, as a federal civil rights prosecutor, had prosecuted police officers for violations of rights.
Five officers remain to be tried, and there may yet be convictions, but the Nero acquittal reminds us of the limits of criminal prosecutions as vehicles for social change.
Events of the past two years — including the deaths of Gray, Eric Garner, Michael Brown, Tamir Rice, Laquan McDonald and others — have propelled police killings of African American men into the national consciousness and made prosecutions of police officers a matter of national concern. Yet those efforts have repeatedly run up against the limited effectiveness of criminal prosecutions.
Such cases are crucial to bringing justice to victims, and they reassure communities that crime will be punished and deterred. But they remain an unreliable tool for a national reckoning on race and policing. Prosecutions focus on individual circumstances and personalized evaluations of culpability.
They occur within a structure designed to protect individual defendants through procedural safeguards, including rights to counsel, to confront witnesses, to a jury and against self-incrimination and, most important, the requirement that the government prove guilt beyond a reasonable doubt. And the outcomes of these cases are limited to a binary finding of guilty or not guilty. Indeed, an acquittal that may be appropriate within the realm of criminal safeguards can send the misleading message that nothing wrong occurred.
Further, because criminal charges against police officers often are lodged under tense circumstances, they are inevitably imbued with high — and often unreasonable — expectations. Prosecutors must pursue them aggressively but they must also ensure that they have investigated the matter thoroughly, developed a theory of culpability, identified the individuals responsible and gathered evidence to prove it all beyond a reasonable doubt.
Although prosecutors on the whole have been too reluctant to pursue charges against police, they also must guard against responding to public outcry by bringing charges too quickly and too aggressively. The impact of criminal prosecutions is magnified because they often address high-visibility, traumatic events; the proceedings are public; and they end definitively.
In the Nero case, individual circumstances made conviction difficult. We know that Gray died tragically and unnecessarily in police custody, but much about the events remains uncertain. Judge Barry G. Williams found that Nero was a bit player in Gray’s death. Though Nero failed to belt Gray into his seat, so did others of higher rank on the scene. Additionally, Nero’s conviction would have depended, in part, on acceptance of a far-reaching theory that officers commit a crime whenever they make an arrest without probable cause.
The prosecution alleges that the remaining five defendants played more substantial roles in the events that led to Gray’s death. As we watch, however, we should not let criminal convictions or acquittals substitute for the need for broader solutions.
Recent events have triggered an overdue wave of systemic police reform. The Obama administration has reinvigorated the Justice Department’s use of its power to bring civil actions against police departments for patterns of misconduct. It has obtained broad injunctions attacking racially biased policing; unreasonable stops, searches and arrests; excessive force; inadequate training; and failed accountability systems. The department is investigating the Baltimore police force in a process that promises to bring significant change to its operations.
While convictions may affect the behavior of some individuals, they are an inadequate driver of systemic change in policing and, of course, do nothing to affect the underlying problems of poverty, unemployment, substandard education and inadequate housing that lie at the root of many tensions between law enforcement and the communities they serve. We should press ahead with appropriate criminal prosecutions of police officers, but we cannot expect those prosecutions to sweep away the consequences of centuries of racial and social inequality.
William Yeomans, a fellow in law and government at American University’s Washington College of Law, served in the Justice Department’s Civil Rights Division from 1981 to 2005.