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2000 Wis. L. Rev. 789 (2000)
Prosecuting Police Misconduct

handle is hein.journals/wlr2000 and id is 807 raw text is: PROSECUTING POLICE MISCONDUCT JOHN V. JACOBI* The police and the people of some American communities are at war. Although the majority of officers perform their difficult duties without brutalizing the people they serve,' police too frequently attack, beat and kill civilians.' The phenomena of police misconduct and civilian distrust can be traced in large part to a cycle of impunity, by which the reluctance of local government to prosecute bad cops empowers future misconduct and drives communities to regard the police as adversaries instead of protectors.3 Federal prosecutors, free from local entanglements, should be the check on this cycle of impunity, but they are hindered by narrow federal criminal civil rights law.4 The international community has been grappling with a structurally similar problem in recent years. In the last century, war crimes such as * Professor of Law, Seton Hall Law School. I thank my colleagues Edward Hartnett, Charles Sullivan, Lawrence Bershad and Howard Erichson for their helpful comments, and Ashley Cooper and Beverly Hunt for their research assistance. I. See, e.g., PAUL CHEVIGNY, EDGE OF THE KNIFE: POLICE VIOLENCE IN THE AMERICAS 97 (1995) (stating that in Los Angeles and in American police departments generally, a small number of officers appear to be responsible for most of the misconduct). 2. See HUMAN RIGHTS WATCH, SHIELDED FROM JUSTICE: POLICE BRUTALITY AND ACCOUNTABILITY IN THE UNITED STATES 1 (1998); Alexa P. Freeman, Unscheduled Departures: The Circumvention of Just Sentencing for Police Brutality, 47 HASTINGS L.J. 677, 688-89 (1996) (citing statistical compilations and opinion surveys, acknowledging that no truly reliable statistics on the occurrence of police brutality exist, and concluding that a very serious account of police brutality emerges from the available sources); see also infra Part I.A; see, e.g., JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 1, 3-9, 33-37 (1993) (detailing incidence of police violence in California, Louisiana, and Washington). 3. See CHEVIGNY, supra note 1, at 86-87; Rob Yale, Note, Searching for the Consequences of Police Brutality, 70 S. CAL. L. REV. 1841, 1843-46 (1997); see also infra text accompanying notes 98-103 (discussing cycle of impunity). The recent acquittal of four New York City police officers in state court for charges related to the shooting of unarmed civilian Amadou Diallo has resulted in some suspicion that the police are above the law, at least when confronted with state prosecutors. See Amy Waldman, The Diallo Case: The Trial; To Many in the Court of Public Opinion, the Prosecution is Now the Accused, N.Y. TIMES, Feb. 28, 2000, at B5. 4. See Jon 0. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers' Misconduct, 87 YALE L.J. 447, 450 (1978) (discussing limits of federal criminal civil rights law); see also infra Part L.C (discussing current federal criminal civil rights law). But see VERA INSTITUTE OF JUSTICE, PROSECUTING POLICE MISCONDUCT: REFLECTIONS ON THE ROLE OF THE U.S. CIVIL RIGHTS DIVISION 6-8 (1998) (noting that the reluctance ofjuries and local and feueral law enforcement also limits federal prosecutions); Freeman, supra note 2, at 720-26 (cataloging reasons other than narrow statutory interpretation for limited federal prosecution of police misconduct).

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