(a) Police conduct that may involve physical harm, a deprivation of constitutional rights, or public corruption should be investigated and evaluated in a thorough, timely, fair, and impartial manner to determine whether criminal charges are warranted.
(b) When an investigation of an officer concerns a significant use of force or deprivation of rights, the public should be timely apprised of the status of the investigation, decisions about whether to bring charges, and—to the extent permitted by law—an explanation of any actions taken.
(c) Officer conduct should be investigated, and charging decisions made, by actors outside the officer’s agency or jurisdiction when doing so is necessary to:
- (1) ensure thoroughness, fairness, or impartiality;
- (2) promote community trust; or
- (3) comply with policy or law.
(d) Officers accused or suspected of crimes in their private capacities—not under color of law—should be investigated and charged in the same manner as individuals who are not officers would be for the same offenses.
a. Criminal investigations of police officer misconduct, generally. Criminal prosecutions of officers who commit crimes against members of the public serve several important functions. They vindicate the public’s interest in sound policing and the rule of law. They show the same concern for victims of police misconduct as is shown for other victims of crime. They generate trust in the fairness of the criminal-justice system. And they prevent future harm by deterring would-be offenders. See § 14.03 (describing purposes of statutory remedies). The public rightfully expects investigators and prosecutors to investigate and evaluate potentially criminal conduct fairly, no matter who is the perpetrator or victim. See § 14.05 (Prosecutor and Other Attorney Responsibilities for Ensuring Sound Policing).
Yet, criminal investigations of potential legal violations by police officers raise special concerns. Police officers carry out criminal investigations, including those in which law-enforcement officers are suspects. Prosecutors work closely with police officers and agencies, and prosecutorial decisionmaking is largely shielded from public view. Given these realities, members of the public understandably are sometimes skeptical about the fairness and accuracy of investigations and prosecutorial decisionmaking in cases involving law-enforcement officers.
In order to advance the public trust, investigations into allegations of police-officer misconduct should be thorough, fair, and impartial, and should occur in a timely fashion. The best way to ensure fairness, and to garner public trust, is through established and publicly available protocols for investigating and charging cases involving law enforcement. States should set the minimum standards for such protocols for agencies, and agencies should adopt policies and train personnel in preparation for critical events. Those standards should be designed to ensure that investigations are not only accurate, but thorough, fair, impartial, and timely.
b. Public notification. To garner public trust, those conducting an investigation concerning an officer’s participation in a significant adverse event should notify the public in timely fashion of the outcome of the investigation, and, when law permits, the reasons supporting it. Whether or not charges are pursued in a matter involving law enforcement, the cause of justice and public faith in law enforcement best is served by informing the public promptly of the decision and the basis of that decision, even if such announcements and explanations are not regularly done in cases that do not involve law-enforcement personnel.
c. Independent investigation and prosecution. To ensure that justice is done, and to promote trust in the criminal-adjudication system, criminal investigations and charging decisions concerning officer conduct may need to be carried out independently, that is, by actors not closely connected to the officers involved. When appropriate, external prosecutors should be brought into the process as soon as possible after the occurrence of the critical incident that justified an external criminal investigation. Because just prosecutions also may be stymied by weak or biased investigations, when independence is required, critical incidents should be investigated by agencies that do not employ the involved officers, and prosecutors and agencies should ensure that this is done. When outside investigations occur, agencies should facilitate them.
d. Other crimes. Although public attention often focuses on crimes officers allegedly committed while acting under color of law, officers also sometimes are accused of or have committed other crimes, such as domestic assault or driving under the influence. Officers and prosecutors have at times been overly deferential to police officers who have committed ordinary crimes and have failed to make arrests or bring charges in circumstances in which a nonofficer would face arrest and prosecution. This practice undermines the rule of law, the public trust, and the criminal-adjudication system, and it may be inconsistent with public safety. Instead, officer actions should be evaluated fairly, similarly to the actions of other individuals, and in accordance with the public interest and appropriate retributive principles.
Appropriately investigating and prosecuting police officers who commit crimes serves the same purposes as other criminal prosecutions, including punishing the guilty and discouraging future offenses. In addition, police officers act with a cloak of state authority, and when they commit crimes under the color of law, they “seem to signal the state’s contempt for the victims as citizens. Criminally prosecuting the officers counteracts that disrespect and recognizes the political status of victims and their communities.” Rachel Harmon, The Law of the Police 690 (2021).
Although appropriate criminal investigations and prosecutions of officers may serve these important goals, these cases also raise distinctive challenges. Because law enforcement investigates crimes, including crimes by the police, it is easy for those investigations to be biased, thereby compromising the fair collection of evidence and evaluation of potentially criminal events. See Merrick Bobb, Civilian Oversight of the Police in the United States, 22 St. Louis Pub. L. Rev. 151, 156-157 (2003). Moreover, prosecutors who depend on close working relationships with officers and agencies and sympathize with the challenges of policing may have difficulty exercising independent judgment about whether criminal charges against them are warranted, as they are required to do. See, e.g., Roger A. Fairfax, Jr., The Grand Jury’s Role in the Prosecution of Unjustified Police Killings—Challenges and Solutions, 52 Harv. C.R.-C.L. L. Rev. 397, 398 (2017); see also Am. Bar Ass’n, ABA Criminal Justice Standards, Prosecution Function § 3-3.2(a) (2017) (“The prosecutor should maintain respectful yet independent judgment when interacting with law enforcement personnel.”). Not only do these difficulties undermine some criminal prosecutions that should be brought, they compromise public trust, even when prosecutors appropriately decline to bring charges.
In light of both the reality and perception of bias, some have argued that investigations and prosecutorial decisions concerning officers should not be carried out by officers and prosecutors who are in the same jurisdiction as the officer whose conduct is at issue. See, e.g., Final Report of the President’s Task Force on 21st Century Policing, §§ 2.2.2, 2.2.3 (2015). Indeed, several states require independent assessment of some alleged crimes by the police. See, e.g., Wis. Stat. § 175.47(2)-(5); Utah Code Ann. § 76-2-408(2)-(5). Although external investigation and prosecution can reduce bias and increase community trust, independence is not always easy to achieve, even when investigations and prosecutions are conducted by external entities. Outside investigation and prosecution is not a panacea. Whatever their circumstances, investigations and prosecutions of police misconduct are unlikely to earn the public trust if they are not conducted carefully, with sufficient resources, and with insulation from political or law-enforcement pressure. See Walter Katz, Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 Harv. L. Rev. F. 235 (2015).
Traditionally, prosecutors have rarely explained either prosecutorial decisionmaking or declinations, and they usually are under no legal obligation to do so. However, given the perception that prosecutors may not be unbiased evaluators of police conduct, there are special reasons for them to announce and explain decisions not to bring charges against officers involved in critical incidents. Recognizing this, several prosecutors’ offices have adopted public-disclosure policies and practices for declinations in some cases involving officers. See, e.g., Div. of Crim. Just., N.J. Off. of the Att’y Gen., Uniform Statewide Procedures and Practices for Investigating and Reviewing Police Use-of-Force Incidents 12; Off. of the State’s Att’y for Baltimore City, Police Use of Force Declination Reports, https://www.statorney.org/policy-legislative-affairs/policy/police-use-of-force-declination-reports. See also Jessica Roth, Prosecutorial Declination Statements, 110 J. Crim. L. & Criminology 477, 538 (2020) (suggesting that prosecutors might choose to issue declination reports in police-misconduct cases because “there have long been concerns about underenforcement and preferential treatment, and because such conduct uniquely threatens democratic ideals of equal protection of the law and political participation.”). To promote careful consideration by public officials and to enhance trust and understanding by the public, this Section advocates transparency about the procedures used to ensure appropriate investigation and prosecution of police officers and the reasons for decisions regarding critical incidents involving the police.