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We Must Demand Prosecutorial Reform After Chauvin Sentencing

June 30, 2021, 8:00 AM

There were cheers in the aftermath of the conviction of former Minneapolis police officer Derek Chauvin for George Floyd’s murder, but his prison sentence on June 25 speaks less about progress in racial justice and more about the flaws in America’s criminal justice system.

It is a system in which most prosecutors fail to do their jobs, which allows police to kill with impunity. Without reforms directed at the role of prosecutors, Chauvin’s conviction in the asphyxiation of George Floyd will be an anomaly.

On May 25, 2020, Chauvin placed his knee on the neck of a handcuffed George Floyd, 46, until he died. For this, Chauvin, 45, received a prison sentence of 22 years and six months by Judge Peter Cahill. Officers J. Alexander Kueng, 27; Thomas Lane, 38; and Tou Thao, 35, stood by and watched. Their trial is postponed until March 2022. Kueng is Black, Lane is White, and Thao is Asian American.

Their case is not the norm. This year alone, hundreds of other victims of police brutality will go without justice because prosecutors have refused to do their sworn duty when the suspect is a police officer. This prosecutorial failure is a bitter truth formed during slavery and still pungently virulent today.

Remember this: Michael O. Freeman, the Hennepin County prosecutor, initially had dismissed Floyd’s death as one due to natural causes. Only after a brave young woman’s video led to uprisings capturing international attention was Floyd’s death taken seriously.

Even then, Freeman and his three assistants moved to protect police officers. Their interview, alone, with the medical examiner—someone certainly to be called as a witness in a criminal case— was rebuked by Cahill as “sloppy” work and possibly violated the ethical rules of professional conduct lawyers must follow.

Police and Prosecutors Work Closely

Nationwide, police and prosecutors work together, daily. Police gather evidence for prosecutors, conduct tests, and testify in court in civilian-on-civilian cases. When the officer becomes the suspect in a crime, prosecutors become neutral at best and at worst, a shield for police who may have maimed or killed a civilian.

Prosecutors are government employees with full discretion over what cases go to trial. They enjoy absolute immunity from civil liability and are not required to disclose the rationale behind failing to seek an indictment or refusing to bring criminal charges.

Nearly 1,000 Americans are killed in police shootings alone every year, rising to more than 1,200 when other causes of death are included. Only about 42 non-federal officers have been convicted following an arrest in an on-duty homicide between 2005 and 2020. This is only recent data.

Consider the thousands of murders and tens of thousands of assaults by White civilians and law officers against African Americans, ignored by prosecutors, over the last century and the nearly 5,000 men, women, and children lynched in America between 1882 and 1968, who never received even a government investigation although witnesses stood smiling for photographs under hanging bodies.

Chauvin’s Trial Was Exceptional

Chauvin’s trial was unusual in many ways. People took to the streets, around the world, to get justice for one man. The Black community’s vocal distrust of Freeman and his Hennepin County prosecutors led Minnesota Gov. Tim Walz (D) to select Minnesota Attorney General Keith Ellison as Special Prosecutor.

Ellison, in turn, hired outside attorneys Jerry Blackwell and Steve Schleicher to prosecute the case. Expert witnesses testified on behalf of the prosecution, free of charge.

Note that experts traditionally come from within the ranks of state government. In other words, Chauvin was convicted in George Floyd’s murder because this case did not follow the biased pattern and practice employed by most prosecutors in police-involved civilian cases.

Justice cannot be an outlier. Any criminal justice reform that does not include prosecutors falls short. The George Floyd Justice in Policing bill now being considered in Congress is a great step forward. But there is nothing in the bill that challenges prosecutors who can be brilliant in civilian cases and derelict in their sworn duty in police-involved civilian cases.

Prosecutors Must Report Police-Civilian Deaths

Disclosure and data go a long way to reform. Currently, Americans rely on media and citizen videos to find out about police brutality. Prosecutors must be compelled to provide the Justice Department with detailed data on police-involved civilian injuries under penalty of perjury; not an incentive-based justice system as the bill currently depicts. Perhaps George Floyd would be alive today if it had been reported that Chauvin had committed a similar non-fatal act in September 2017.

Every prosecutor’s office should have to report police-involved civilian deaths. If there has been no injury to civilians, then a document signed by the district attorney would state this fact. Data from all 18,000 police departments around the country would be placed with the Justice Department.

The conviction of Chauvin must be applauded. But this is one prosecution among thousands of such deaths. Only national criminal justice reform that includes prosecutors can stop the slaughter. New laws mean nothing if police who break them are not prosecuted. If prosecutors fail to prosecute them, police officers will continue to kill civilians with impunity.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Gloria J. Browne-Marshall is a professor of constitutional law at John Jay College, author of “She Took Justice: The Black Woman, Law, and Power,” civil rights attorney and playwright whose most recent stage-play titled “SHOT: Caught a Soul” is about a police-involved civilian shooting.