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The Unspoken Agreement Between Prosecutors and Law Enforcement

Black Lives Matter protesters stand with a banner that reads "Prosecute Police" to demand justice for Jacob Blake
Recent events make it clear that prosecutors and police serve and protect each other instead of us.
Black Lives Matter protesters stand with a banner that reads "Prosecute Police" to demand justice for Jacob Blake
Somil Trivedi,
Former Senior Staff Attorney,
ACLU Criminal Law Reform Project
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January 15, 2021

Last week’s physical and civic violence at the U.S. Capitol has raised a terrifying set of questions about American democracy, including the potential complicity of law enforcement in insurrection. The president-elect joined the entire freethinking world in noticing that, if Trump’s mob had been Black, it would not have received the same concierge service. But Trump’s coup attempt was not the only law enforcement catastrophe last week: We cannot forget that, two days earlier, Kenosha County, Wisconsin District Attorney Mike Graveley chose not to charge police officer Rusten Shesky for shooting Jacob Blake seven times at close range, in front of his children, paralyzing him for life. 
Last Tuesday, in what was already the prosecutorial equivalent of a Friday news dump — the day of a double-feature Senate runoff and the day before a contested Presidential certification — Graveley announced the non-charges and gave a press conference defending his decision. Graveley’s presentation was a master class in white aloofness and Black victim blaming. Graveley spent slide after slide on Blake’s thin criminal history, implying strongly that this justified his fate. He relied on tired tropes of untamable Black male aggression, including using the fact that Blake dared to remove the taser cables that were electrocuting his body as proof of the need to shoot that body over and over. And in playbook fashion, the good DA urged the Kenosha community to heal at the very moment he was twisting the knife. 
To be fair, Graveley approached this case in a moderately more defensible fashion than most. Back in September, Graveley asked the feds to open a parallel civil rights investigation into the shooting, asserting that Kenoshans “deserved a second opinion.” He also invited the appointment of Noble Wray, a former Milwaukee police chief and self-proclaimed police reform proponent, to serve as an “independent” use-of-force expert. He even exhibited the barest modicum of racial humility, admitting yesterday, “I have never in my life had a moment where I had to contend with explicit or implicit bias based on my race.” 
Our movement for racial justice and law enforcement accountability, which has steadily built steam in recent years, clearly influenced Graveley’s approach to the case. This is a good thing. However, Graveley’s efforts can also fairly be viewed as elaborate hide-covering. The parallel investigations by the DOJ and Wray could not force Graveley to charge these officers, but they sure made it easier for him not to. Wray’s report in particular was the rubberiest of stamps, and a missed opportunity to address not only Shesky’s tactical errors — namely, unnecessarily re-engaging with Blake — but the systemic issues that allowed a man like Shesky to do that with impunity. Graveley cannot take credit for bringing in an outside “reformer” if that person’s report doesn’t say a word about reform.
And Graveley’s concession regarding race is the coldest of comfort. The decision not to charge, buttressed by racialized victim shaming and unaccompanied by any concrete suggestions for reform, makes clear that he still hasn’t meaningfully “contended” with the bias within himself or the law enforcement infrastructure he leads. And for all his words and PowerPoints, he did nothing to heal a battered community — one simultaneously dealing with Kyle Rittenhouse’s not-guilty plea and the white nationalist protests that accompanied it. And he did nothing to ensure that this never happens to them again.
At the end of the day, prosecutors like Graveley depend on the police for leads and testimony, and are typically elected on tough-on-crime platforms. Hence, protecting their friends in blue is almost always the self-interested move for prosecutors, particularly in places like Kenosha. Graveley ultimately caved to that deeply ingrained incentive structure, and no amount of procedural window-dressing can change that.
More broadly, this is yet more proof of America’s debilitating obsession with criminal law as panacea. Consider this: In Breonna Taylor’s case, law enforcement grossly over-enforced a meaningless drug investigation, killing an innocent young woman. In the Nashville bombing case on Christmas morning, police likely under-investigated a dangerous situation, glibly claiming that their failure was only clear in hindsight. In Kenosha, as in countless communities across the country, a district attorney yet again over-protected his police benefactors and under-valued the pain of the Black community. And then, of course, came the grotesque failures in D.C. The common thread: Each time we relied primarily on law enforcement to address a real or perceived societal problem, and each time law enforcement failed. The obvious takeaway should be to stop using law enforcement as the primary solution to so many of our problems. Instead, we need a far more holistic, far less punitive approach to harm reduction than we’re currently employing — one that values public health over incarceration and prevention over post-hoc prosecution. 
In this context that means, at the very least, more stringent use-of-force standards; better understanding of and counterprogramming to anti-democratic extremism, particularly deep online; non-police responses to a wider swath of calls for service; eliminating immunity doctrines to better deter misconduct by both police and prosecutors; and building upon Graveley’s laudable but ultimately insufficient attempts to create independence between those institutional actors, when more foundational reforms are still unable to prevent tragic situations like Jacob Blake’s. And it does not mean creating new criminal laws or expanding investigative powers for law enforcement, even in the wake of tragedy — these would only entrench the prosecution-forward approach that allowed these disasters in the first place.
This rethinking of our national approach to justice won’t eliminate all criminal activity overnight. The criminal law will and should persist. But if we can’t right-size and refocus it on true public health and public safety, we’re doomed to continue watching prosecutors and police serve and protect each other instead of us.

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