How to Go After Rogue Prosecutors
Out-of-line police departments are subject to investigations and court orders. Why not apply those same tools to attorneys who disregard defendants’ rights?
When the world saw Los Angeles police officers beat Rodney King on camera in 1991, conversations about how the police engage with communities of color were destined to change. Congress heard the general public’s cries for accountability. Although the Violent Crime Control and Law Enforcement Act of 1994 hiked up prison sentences and increased funding for police recruitment, it also contained a provision for what one law professor has since called “the only reliable way to rebuild police-community relations”: the federal pattern-or-practice investigation.
Few among the general public might call these investigations by this name, but their usual result—a federal consent decree between the Justice Department and a city to force police reform—has become widely known, especially since the emergence of the Black Lives Matter movement. After the Black teenager Michael Brown was killed by a white police officer in Ferguson, Missouri, the DOJ opened a pattern-or-practice investigation and obtained a consent decree to gear police practices “toward de-escalation and avoiding force.”
These investigations are subject to both hype and derision, but they are not overly complicated in theory. When the Justice Department has a reason to suspect that a local police department—not an individual officer—is deliberately and systematically violating the constitutional rights of the people it is tasked with serving, the DOJ can open up such an investigation with what’s known as a preliminary inquiry. If DOJ investigators find sufficient evidence, they will contact the police department and prepare a “findings letter,” a document that explains the law and describes the ways in which the target agency is violating it. The DOJ can then offer training to shore up the department’s policing protocols or negotiate a binding legal document that obliges the police department to change the way it conducts business.
This is a potent tool. In Cincinnati, the DOJ negotiated a memorandum of understanding with the police department and city government in 2002. From 1999 to 2014, police use-of-force incidents in the city decreased by 69 percent, while citizen complaints against officers declined by 42 percent. In Newark, New Jersey, DOJ investigators found “vast racial disparities” in arrests and other issues, which led to the negotiation of a consent decree in 2016. In 2020, Newark did not experience a single police shooting. With the notable exception of Donald Trump, all presidents of both parties since 1994 have used pattern-or-practice investigations to try to ensure accountability for illegal police practices. But one thing they have not done, other than one case during the Obama years, is use this tool to improve the other side of our law-enforcement coin: prosecution.
That’s an oversight. Pattern-or-practice investigations could be a very powerful way to ensure that district attorneys are not subverting people’s constitutional rights.
Although people usually associate the federal pattern-or-practice law with policing, the statute’s language—which explicitly extends its applicability to both “law enforcement officers” and “officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles”—does not limit what kind of law enforcement is within its purview. Because prosecutors are law enforcement, this law applies to them as well. The Obama DOJ recognized this when, in 2016, it began a pattern-or-practice investigation against the Orange County, California, district attorney’s office.
Prosecutors have always had a legal obligation to not violate constitutional rights, but only in the past several decades has the Supreme Court provided concrete guideposts for them to follow. In 1963, the high court held in Brady v. Maryland that prosecutors must give the defendant’s legal team access to any evidence that suggests its client’s innocence. In 1983’s Batson v. Kentucky, the Supreme Court reiterated that prosecutors cannot strike prospective jurors on the basis of race, and established a three-part test with which judges could determine violations. The Supreme Court also acknowledged in 1980, and again in 1986, that using jailhouse informants to coax confessions from suspects without their attorneys present unconstitutionally undermines their Sixth Amendment right to have an attorney present during a government interrogation.
From start to finish, pattern-or-practice investigations against district attorneys’ offices would follow the same process established in the policing context. Once DOJ investigators have reason to believe that a law-enforcement agency has engaged in an unconstitutional pattern of behavior, they can initiate a preliminary inquiry to determine whether sufficient cause exists for a full investigation. If that threshold is met, the DOJ can inform the DA’s office and proceed with an official investigation.
Next comes the findings letter. If the DOJ finds a pattern of constitutional violations, and the DA’s office is amenable to change, then it can draft a memorandum of agreement as an action plan to achieve legal compliance. If the DA’s office is hostile, the DOJ can file a complaint in federal court, leaving the DA’s office with two options: fight or settle. (Police departments virtually always decide to settle.)
Part of the reason DOJ involvement is so necessary is that obtaining convictions and harsh sentences is easier when cheating than when playing by the rules, so local prosecutors are encouraged to cheat. The election of dozens of progressive prosecutors in liberal urban counties has led to accountability for some bad actors, but in more conservative counties, there is nothing to make prosecutors abide by constitutional law. Majority constituencies in many or even most counties seem ambivalent about prosecutorial misconduct, especially when crime is up, as it now is.
Risks to this strategy exist. An administration bent on punishing blue cities could abuse pattern-or-practice investigations for ill. For example, a Republican attorney general could hypothetically claim that progressive prosecutors are violating the the Fourteenth Amendment’s equal-protection clause by giving undocumented immigrants lenient plea deals in order to prevent disproportionate collateral consequences, such as deportation. Similarly, a Republican attorney general could also use these investigations to go after prohibitions on firearms, but, at least in theory, he or she should not get very far. In District of Columbia v. Heller, Justice Antonin Scalia wrote that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Even so, bad-faith attorneys general could certainly try to undermine the law to do political damage to policies and officials they do not like.
But these are not reasons for a Democratic administration to avoid using this tool for good. When prosecutors violate people’s civil rights, they harm real people and violate their ethical obligations, and rarely face any legal or professional consequences. The people most directly aggrieved by their bad acts are criminal suspects—or, in some cases, convicted felons. They are not adequately equipped to force compliance with the Constitution at a systemic level. That sort of systematic change will require a push for reform from the federal government itself—and it already has in its possession a very good tool for making that push.