The Appeal Podcast: When Police Officers Double as Prosecutors

With Appeal contributors Julia Rock and Harry August

In nine states, police officers are permitted to act as prosecutors and arraign people for misdemeanor charges. In Rhode Island, the practice is the norm, meaning that thousands of people face potentially life-altering criminal charges without a public defender at their side. Advocates say allowing police to act as prosecutors presents an inherent conflict of interest. Today, we are joined by Appeal contributors Julia Rock and Harry August to discuss the practice, and how reformers hope to change a system they view as unfair and undemocratic.

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Transcript

Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow The Appeal at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcasts.

In nine states, police officers are permitted to double as prosecutors for misdemeanor charges. For one state, Rhode Island, the practice is the norm, meaning thousands potentially face life altering criminal records without a public defender and being prosecuted by a member of a local police department ripe with conflicts of interest. Today we are joined by Appeal contributors Julia Rock and Harry August to discuss this practice and how reformers hope to change a system that many view as unfair and undemocratic.

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Julia Rock: We found that in addition to Rhode Island it’s happening in eight other States. And in some of those States, New Hampshire, Virginia, for example, Delaware, police officers are doing all of the arraignments. Whereas in other states it was only in counties or districts that were under-resourced.

Harry August: And believe it or not the Attorney General’s Office said that they had nothing to do with that training and these were two assistant attorney generals working in their own time. The slide show that we obtained was all about kind of how the courtroom works and it’s just incredibly basic. And so it was saying, ‘this is what bail is, this is what an arraignment is, this is what justice of the peace is.’

[End Clip]

Adam: First off, thank you so much for joining us.

Julia Rock: Thanks for having us.

Harry August: Yeah, great to be here.

Adam: Great. So, um, you wrote a piece in October, the headline was “Rhode Island Police Don’t Just Make Arrests. Some Also Act as Prosecutors. The state is one of eight that allow cops to arraign people on misdemeanor charges. Advocates and academics say the practice is unjust.”

So firstly, just how widespread is the practice of police doubling as prosecutors for misdemeanor charges? I know it’s the standard in Rhode Island, but I know there’s other states that do it. Can you give us a sense of what this is and what the scope of it is?

Julia Rock: Yeah. For this story we actually contacted officials in all 50 States to figure out just how many states were allowing police officers or charging police officers with the task of conducting arraignments. And we found that in addition to Rhode Island, it’s happening in eight other states. And in some of those states, New Hampshire, Virginia, for example, Delaware, police officers are doing all of the arraignments whereas in other States it was only in counties or districts that were under resourced and the county prosecutor’s office didn’t have enough resources to send a lawyer they would send police officers. So how widespread it was within the state varied state to state, but we were pretty astounded to find that there were nine states that enabled this practice.

Adam: I think the first question most people would have upon hearing about this is what are the qualifications for a police officer to sort of double as what is effectively a lawyer? You write that quote “In Providence… not one of the city’s police prosecutors has a law degree… Providence Police Department prosecutors receive three months of on-the-job training with a current police prosecutor.” What is the training exactly? So I want to be clear, I don’t engage in credentialism too much because obviously DAs who are heavily credentialed also have problems. Thus the whole point of The Appeal. But at the same time, this seems like a combination of the same kind of tough on crime ethos combined with any appearance of division of conflict of interest. So can we talk about what the qualifications are and what the conflicts of interest are versus conflicts of interest even for your most tough on crime district attorneys?

Harry August: So I think the big thing for the training is that, as we mentioned in the piece, it’s with the, on the job training with the current police prosecutor. And so these police prosecutors have not trained with anyone who can explain with the expertise of a legal degree about kind of which types of evidence can be used in court, what the responsibility of a prosecutor is to decline to charge cases. And so when we looked at the training materials for the police prosecution training that two members of the Attorney General’s Office put on, and believe it or not, the Attorney General’s Office said that they had nothing to do with that training and these were two assistant attorney generals working in their own time. The slideshow that we obtained was all about kind of how the courtroom works and it’s just incredibly basic. And so it was saying ‘this is what bail is, this is what an arraignment is, this is what the justice of the peace is.’ And it had no discussion of any of those other things I mentioned. So there’s no legal elements in terms of any duty to reveal exculpatory information.

Adam: So in other words, the main point of tension is over the ethical, because obviously if a DA can sort of lose their law license or get disbarred if they don’t give over exculpatory evidence or don’t violate Brady or whatever. But theoretically police officers have no such sort of independent review process. Is that why it’s dangerous?

Julia Rock: Yeah. So there are kind of two components that are brought up in terms of the lack of legal training. One is what Harry said, instead of going to law school for three years and being taught by a law professor, what probable cause is, you get like a two minute explanation on a slideshow and then kind of use that to bring charges. But then there’s the second problem of people who are barred as lawyers are held to a very extensive standard of ethics that as you pointed out, should hold prosecutors accountable more than it already does, but is kind of a useful way to hold people accountable to following the law. And people who don’t have a law degree, have no obligation to that standard of ethics.

Adam: Okay. Cause one of the issues is sort of a competency argument and you see this a lot even when people criticize Donald Trump, they’re like, ‘oh Donald Trump is playing golf.’ And I’m thinking, well you want him to play golf. So if someone’s like, ‘oh well the police officer is incompetent’ and now from a justice reform perspective, I guess the first question I have is, well don’t you want him to be incompetent? If the issue was to keep less people out of jail or does that competency correlate to violating rights as opposed to getting acquittals?

Harry August: Yeah, I think the incompetent prosecutor is just going to bring a charge in every single arrest.

Adam: Right.

Harry August: And I think where the competent prosecutor steps in is declining to arrest charges where there are obvious problems with the case. And so you can arrest someone with whatever evidence the police officer has, but then it’s up to a competent prosecutor to say, that does not meet the standard of evidence to be used in a trial or this was an unreasonable search and this would never, should never be brought into the courtroom or any number of issues with the arrest a prosecutor should step in and say something. And I think an untrained police officer, like you said, an incompetent one, is just not gonna be able to pick up on those things and that’s just gonna be discriminatory just to bring a charge.

Adam: That makes sense. You wrote that one of the things was that police officer’s sort of relationship with small and petty crimes specifically with regards to like businesses, you wrote that quote, “Stephen Erickson, who served as a Rhode Island District Court judge for 20 years, described one example he observed from the bench. In Warwick in the early 2000s, Erickson explained, ‘The police were laser-focused on prosecuting shoplifting, even minor offenses,’ he said, seeking convictions in all cases — rather than community service or dropping the charges, as other police departments would. ‘It’s almost as if they were an arm of the Warwick Chamber of Commerce.’” So obviously, like you said, DAs in general have their own kind of tough on crime ethos but to what extent do police, I mean I was shocked to learn that they prosecuted every single arrest. So like the concept of prosecutorial discretion just doesn’t really apply here.

Julia Rock: Yes, in that conversation with Erickson we kind of discerned that there were a couple of things going on in the situation you just described. The first is that if police officers in a district where there’s a district attorney who’s democratically elected or appointed, really think that shoplifting is a big problem, they might still arrest shoplifters who are only stealing a tiny thing, but then there’s kind of a second layer of decision making. Is it really worth the state’s resources to be spending all of this time prosecuting, you know, people stealing candy bars or is there a better use of resources elsewhere? Is this even worth giving people criminal records for? Whereas if a police department decides, ‘okay, we’re sick of shoplifting and we have a lot of friends who work at these businesses,’ not only do they get to decide to really heavily police those areas and track down people who are shoplifting, but it’s also up to them whether those people are going to be convicted. So it’s like those two first stages in the process are totally up to this one department making decisions. So back to your point, it’s not to say that a prosecutor would necessarily always be making the decision not to prosecute a petty crime, but it’s much more likely if there’s a second level of review that a prosecutor would recognize that it’s a waste of the state’s resources to be going after these people or that they really have a police department that’s acting with a super political intention.

Harry August: And I think the second part of what you said about kind of the incentives here, if you’re on the, a lot of these police prosecutors started out as just regular police officers making arrests. And so it’s hard to imagine that if you have spent most of your career making these arrests and then you become a police prosecutor and suddenly you’re declining to charge all of your coworkers arrests I think that it’s hard to imagine that going over well.

Adam: So how does this affect, lets sort of established the stakes here. Is it that Rhode Island just has a very high rate of prosecutions of misdemeanors? Does this sort of get people on the grid? From a criminal justice reform perspective other than the kind of overcharging and sort of bumblingness of the whole thing and, and the guy, apparently the prosecutors are trained similar to when I was a waiter and I shifted to being a bartender and they sort of shadowed for a few months. Other than the sort of credentialism, which I’m sure would appeal to many of our lawyer listeners, what are the sort of moral stakes here?

Julia Rock: It turns out the stakes are really high, far more people are going through the misdemeanor system than other aspects of the justice system where there are trained prosecutors and that initial point of the criminal process where a prosecutor is deciding whether someone should be charged with something they were arrested for is like the one opportunity there is for kind of justice for a person who shouldn’t be brought into the legal system. And so in many of these cases, in misdemeanor arraignments in Rhode Island and elsewhere, defendants can plead guilty at arraignments and choose to. So there was never an opportunity between when they were arrested and end up with a criminal record for someone to say, no, this person really didn’t do something that should lead them to have a criminal record.

Harry August: Especially because most of these defendants who are pleading to misdemeanors don’t have a public defender who’s reviewed their case.

Julia Rock: Yeah there’s no public defense in Rhode Island for misdemeanors.

Adam: Wait, what?

Julia Rock: Yeah.

Harry August: So you could go from the arrest all the way through to pleading guilty to a charge that’s gonna affect your entire life and the entire process could happen without any lawyer looking at your case other than the judge. And the judge is obviously not going to be making that decision.

Adam: Oh, so I didn’t realize that was an element of this too. Doesn’t this sort of come against constitutional concerns or are misdemeanors not considered big enough to trigger some sort of constitutional objection to this? I mean, I assume that reformers have attempted to go that route?

Julia Rock: Yeah. So that is kind of an area for reform right now. Whether that representation extends to the first point in the process at the arraignment. So these people will be represented later in the process. There was a big New York Times article about how understaffed the Rhode Island Public Defender’s Office is and the office has just decided that it’s not going to put resources into misdemeanor arraignments. But that’s also another area where there are a lot of legal questions.

Adam: It seems like the effort to reform prosecutors, which full disclosure, The Appeal and The Justice Collaborative have made a kind of core axiom of their advocacy work both on the nonprofit side and the advocacy 504 side that reforming prosecutors is your highest kind of reform ROI because they’re so powerful. It seems like, and I know this just applies to misdemeanors in Rhode Island but even still misdemeanors are a huge sort of gateway and path to over incarceration. It seems like from a reform perspective, one of the main problems is you can’t unseat or remove through election, through the democratic process a bad police prosecutor because they sort of exist outside the democratic process. So to what extent is this seen as a sort of hurdle to the broader movement to reform prosecutors where a large chunk of those who go through the system in Rhode Island are sort of extra democratic? They’re kind of outside that system.

Harry August: Right? I mean, I think that was a big impetus for why we started doing this reporting was kind of seeing these reform prosecutors get elected in Boston and the Berkshires nearby, in Philly and looking at Rhode Island and not even knowing where we would direct any advocacy. I remember pretty early in the process of this just Googling “Rhode Island District Attorney” and not being able to find any website for it and being pretty confused. And then kind of running with that I just didn’t even realize there were states that didn’t have any kind of county prosecutor. And I think that was kind of a, one of the biggest questions of our reporting was where in this entire state bureaucracy can you focus advocacy efforts and who even has the responsibility to change this? And when we ask the attorney general, he said, ‘oh, this isn’t a decision I would make.’

Adam: Right. It’s always a cost issue.

Harry August: Right. And then we talked to the courts and they said, ‘oh, only the attorney general can make this decision.’ And then we talked to the Providence city solicitor he said that this is above his pay grade to make decisions like this. And so everyone we asked seemed to be passing it on to another department. And so I think that question of where do you intervene, where do you do the advocacy? I think it’s very much an open question.

Adam: So what are some groups in Rhode Island or even in other States that are trying to shine a light on this? It seems like if these police prosecutors can’t be removed through some sort of democratic process, I assume there has to be a proceeding reform to make them subject to the democratic process. I’m just imagining like a thousand different like cops who look like Brian Dennehy, like determining the fate of-

Julia Rock: I mean they’re all sitting in the front row of the courtroom patting each other on the back and punching each other and joking. It is like a little boys club. Yeah.

Adam: Yeah. What are the local groups doing to sort of try to unseat the boys club?

Julia Rock: Yeah. There are quite a few people in Rhode Island who we talked to who weren’t aware that this was a unique system because they haven’t worked in other states’ legal systems and so didn’t even kind of consider it as an area of reform. And then there’s kind of the other challenge, there’s so many other challenges Rhode Island, there are, you know, challenges over policing and Providence and the lack of public defenders that this really just hasn’t been an issue that local groups have focused on, although we’re hoping that’s gonna turn it around a little bit with this reporting, which has gotten some feedback already. But in South Carolina, which is another state with an extensive system of police prosecutors, the ACLU and the National Association of Criminal Defense Lawyers came together a couple of years ago to do some advocacy work and issue this big report about unconstitutional things happening in the South Carolina court system and talked about police prosecutors and there have been a lot of reform efforts there. So that’s maybe kind of a model for what could happen next in Rhode Island or some, you know, local groups banding together to really take this on. But so far, you know, no group has stepped up to name police prosecutors a priority.

Harry August: I think while it would be incredibly hard to pass some statewide legislation that funds the attorney general office to hire county prosecutors or something like that, the alternative here is that in progressive areas of Rhode Island like Providence and other cities like Central Falls, it would be quite easy for the mayor or the city solicitor to decide that this was not a practice that they were going to condone anymore in their city or county. And so I think at the local level, but in each city in town, I think there’s a lot of opportunity for individual mayors and police departments and city solicitors to quite quickly end this practice and there’s nothing really stopping them from doing that.

Adam: All right, Julia, Harry, thanks so much for coming on and explaining that to us. I know, uh, I learned a lot. I suspect our listeners did as well.

Julia Rock: Yeah. Thanks so much for having us.

Harry August: Alrighty, bye.

Adam: Thank you to our guests Harry August and Julia Rock. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and you can always rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.