Rachel Barkow is a professor at NYU School of Law and the author “Prisoners of Politics: Breaking the Cycle of Mass Incarceration.”
When Sacramento County District Attorney Anne Marie Schubert announced that she would not bring charges against the police officers who killed Stephon Clark on March 18, 2018, her decision was disappointing, though hardly surprising. Schubert’s investigation concluded that, though Clark was holding a cellphone rather than a gun when he was shot, the officers involved truly believed he was armed and reasonably felt that their lives were in danger when they fired 20 rounds at Clark; multiple shots hit him in the back.
Schubert acknowledged that the “death was a tragedy that has had a devastating impact on his family and our community.” But she said California law, which follows a 1989 Supreme Court ruling that determines whether a police-involved shooting is justified by evaluating whether other officers would have made the same decision in similar circumstances, did not permit her to move forward given the evidence in the case. California Attorney General Xavier Becerra said the same thing: Under the law, the police officers could not be prosecuted for Clark’s death.
It’s possible to dispute whether Clark’s death actually met the so-called objective reasonableness standard. And it’s worth considering whether the extensive donations Schubert received from police officers’ unions affected her findings. But we need to ask a more fundamental question when we see prosecutors claim that their hands are tied by the law. Why aren’t these cases prompting them to lead the charge to fix those laws, giving them greater power to save families and communities from events they claim to find so devastating?
That is, after all, the prosecutorial playbook in just about every other context. If they think the laws are insufficient to address gun violence committed by people other than the police, they push for changes. If a drug is causing deaths and hardship in their communities, they are at the front lines asking for harsher laws or stiffer penalties to stem the damage. District attorney associations are often the most powerful voices in a state arguing for or against legislation addressing crime. Typically, these associations resist any laws or changes that make it more difficult for them to bring prosecutions or obtain convictions.
So where is that same lobbying effort when it comes to the unnecessary and preventable use of deadly force by the police given that the existing legal landscape makes it so hard to prosecute these cases? Why aren’t prosecutors demanding laws that require police to de-escalate wherever possible and to exhaust all available alternatives before turning to deadly force?
We know changes such as these work to reduce violence. Seattle adopted stricter departmental use of force policies, and the result has been a decline in the use of police force without any increase in crime rates or injuries to officers. California’s legislature is considering a bill that would impose similar requirements. Prosecutors should likewise be leading the way when it comes to pushing for more comprehensive tracking of the use of force so their offices and police departments have better data and can adjust policies based on the findings.
Prosecutors should be calling for changes such as these in the name of public safety. They invoke their responsibility to make sure all citizens are safe when they lobby on many other areas, yet this is a space where they have been conspicuously silent.
It’s hard to escape the impression that prosecutors are the guardians of public safety except when the threat to public safety comes from the police, and that they are unconcerned with the rights of defendants unless those defendants are police officers. Prosecutors’ partnerships with the police may cloud their ability to see police-involved shootings for what they all too often are: unnecessary acts of violence in their communities that must be deterred and minimized.
But if prosecutors want to claim that they are the keepers of public safety and that part of that job is determining the laws we need on the books, they cannot sit on the sidelines as police use of deadly force tears at the fabric of their communities and puts their citizens in fear for their lives. It is the job of the prosecutor to protect public safety, no matter who threatens it. Without significant changes to laws or policing practices, we will obviously see another Stephon Clark, and another, and another.
When prosecutors see cases such as the shooting of Clark, they should not hide behind the claim that they are just enforcing the law. These cases represent calls to action to fix the laws to prevent these tragedies in the future. Any prosecutor not up to the task of lobbying for such changes does not deserve to hold their office.