08/22/2014 05:32 pm ET Updated Oct 22, 2014

Ferguson and the Case for Creating a Special Prosecutor's Office for the Police


The recent shooting, of yet another unarmed young black male, Michael Brown, in Ferguson, MO - by a white police officer - makes it abundantly clear that there is a need for a legislatively created Special Prosecutor's Office for the Police. This office should be created not only in the State of Missouri but in every state across the nation. To my knowledge, no such office currently exists anywhere in the United States. However, with police misconduct being so prevalent and increasingly more pervasive and given that it ruptures the very fabric of our society, there is a need for a Special Prosecutor's Office for the Police in each of our 50 states.

The time has come to stop talking about the need for special prosecutors in a specific case. The time is upon us to actually do something about it. This should no longer be, as it always has been in the past, just another abstract discussion. Teddy Roosevelt once admonished the nation that just having discussions about problems and solutions in the abstract "achieve mighty little good"; and that "change is realized by those who actually take the first concrete step, not those who theorize about the 200th step." For, as he aptly noted, the problem is in the here and now; and therefore the problem requires attention, actions, and solutions - not just talk, in the here and now.

In re-visiting this decades-old topic of the need for a special prosecutor when a police officer shoots and kills a citizen, we must be reminded of the self-evident fact that, before assuming a position in a local law enforcement agency with a job title of "police officer" that is carried for the temporary period of the individual's employment, the person lived a life with the title of "ordinary citizen" that is carried throughout the duration of the individual's life. "Police officer" is simply a temporary employment title held by an ordinary citizen, nothing more.

The title of "police officer" does not, and should not, mean that the ordinary citizen holding that title is, by virtue of the title, an extraordinary human being or for that matter an extraordinary member of the local law enforcement community that includes, as well, the local prosecutor. As an employment title, police officer simply describes an ordinary citizen who has been tasked with performing a particular multi-faceted municipal law enforcement function.

Within that role, this ordinary citizen with the title of "police officer" has been vested with the extraordinary power to take the life of another individual. And more often than not, the person is able to justify the killing simply and solely because the ordinary citizen holds the title of "police officer." That's a lot of power for an ordinary citizen. Because of such, that "ordinary citizen" demands "special", even extraordinary oversight when, in the exercise of that extraordinary power, a life of another ordinary citizen is taken, especially when, in the context of the realities of our societal racism, the ordinary citizen exercising that police power is more often than not white; and the ordinary citizen victim of the exercise of that police power is more often than not a black or brown male.

Lest we forget the obvious - people are not born police officers. They choose to become police officers. As human beings, they come to their law enforcement job with the same pre-inclinations and biases that all of us garner from our genetic make-up and the environments in which we are nurtured. Thus, the ordinary citizens who choose law enforcement as their life's work are no more or less courageous than other ordinary citizens; they are no more or less cowardly than others; they are no more or less honest than others; they are no more or less wise than others; they are no more or less biased than others; and they engage in misconduct - personally and professionally - no more or less than others.

Nonetheless, the very title of "police officer" has come to confer a special status and with it special benefits for the "police officer" title holding ordinary citizen, which benefits are not accorded to any other ordinary citizen. This includes a "benefit of the doubt" to that police officer titled ordinary citizen which is not accorded to any other ordinary citizen - particularly and especially to black and brown males, who are most often the victim of a shooting by a white police officer.

Of course race becomes the critical issue in this equation, as it does in virtually all of life's equations in our society. Being white in America confers "privilege" - by that fact alone. Conversely, being black or brown in our society confers a less privileged status-by that fact alone. There exists in our country a race-based, de facto "caste" system. Born out of their own experience as white individuals and the "white privilege" that their whiteness alone bestows on them, most of America's white people believe that police officers are there to serve and protect them. Likewise, many black and brown individuals hold the belief that the police are not present to serve and to protect them, but rather to serve and protect white interests. This stems from, and is perpetuated by everyday encounters - over centuries - that black and brown people have with white law enforcement authorities-experiences that have not been shared by white individuals in our society.

Given the superficiality of the discussion about race in our country, it is difficult for most white individuals to believe that police officers would act inappropriately. America's unwillingness to tackle racism head-on allows police officers - particularly white police officers - to believe that they may engage black and brown males without justification and to take unjustified acts against black and brown males, all without consequence to the police officer, in order to serve and protect "privileged" white societal interests and individuals.

In the not so distant past, New York City former Mayor Rudolph W. Giuliani, more often than not, announced that police officers who were involved in shootings of unarmed black and brown males were entitled to "the benefit of the doubt." Yes, he said "entitled." This pronouncement came from a mayor who was a former federal prosecutor. In that role had the responsibility to investigate police officer misconduct; and, when he deemed such to be appropriate, to prosecute a police officer for violating the federally guaranteed civil rights of the victim of a police shooting.

That's the problem. Giuliani held a view, when he was a prosecutor although he only publicly expressed it as a mayor, which would have made it impossible for him to fairly and effectively investigate a potential criminal activity by a police officer because he was quick to hold and express the view that, simply because the ordinary citizen held the title of "police officer", the ordinary citizen titled police officer was entitled to "the benefit of the doubt" not accorded to other ordinary citizens. Of course, in the context of a police shooting by a white police officer of a black or brown male, you can see where this is going (e.g. Ferguson, MO).

It is the reality that local prosecutors are members of the local law enforcement family that includes local police officers. Local prosecutors rely upon their local police officers to carry out their functions as prosecutors. Local prosecutors could not carry out their functions effectively without a cooperative relationship with the local police officers. It's that simple. It's not rocket science. As part of that equation, local prosecutors must nurture a good working relationship with the local police; and local prosecutors cannot take any actions whatsoever that would breach their fundamental law enforcement family relationship. So it is not surprising that a local prosecutor would believe that a local police officer was "entitled" to "the benefit of the doubt."

Given that reality, the local prosecutor - most often white - cannot fairly and effectively investigate and prosecute a local police officer for misconduct against a black or brown male, without compromising the local prosecutor's relationship with his police brethren.

There is an old saying that a "bad beginning inevitably leads to a bad ending." So what to do?

I propose that, as the good beginning and immediately after a shooting by a police officer - anywhere in America - local authorities need to ensure the perception of a fair, effective, complete, and open investigation of the event. The only way that such can occur is for the investigation of the shooting event--and any potential criminal prosecution of a local police officer, to be taken out of the hands of the local prosecutor's office and to be vested in a State-wide independent special prosecutor's office for the police.

A federal investigation and prosecution will not solve the problem simply because prosecution under federal law is restricted, under the provisions of federal law and the standards associated with such, in ways that do not apply to prosecution under a State's laws. At the same time, leaving the assignment of a particular prosecution to the discretion of the State's governor or the State's attorney general in the context and tension of a specific situation will not solve the problem, either. To the contrary- and as we have seen in Missouri- because of the politics and explosive mix of race and law enforcement and competing perceptions of fairness associated therewith, the discretionary option only serves to exacerbate the problem.

Reinhold Niebuhr, a major 20th century American theologian, wrote in Christian Realism that "the purpose of politics is to establish justice in a sinful world." Likewise, John Rawls proposed, in his seminal book, The Theory of Justice, that the essence of justice is "fairness."

While the creation of a mandated Special Prosecutor's Office for the Police in each State may not, in and of itself, guarantee perfect justice in the process and in the ultimate outcome, what can be guaranteed is that, if we fail to take this concrete first step now, we will have nothing more than the continuation of endless discussion about the problem and the solution in the abstract. We will "achieve mighty little good"; we will never realize change; and we will relegate ourselves, as a society, to a future where everything will have appeared to change but nothing really will have changed at all.

Thus and in order to address these situations which are laden with perceptions of unfairness born out of the circumstances of the event including the realities of our societal racism, we must, and should, demand that, as a matter of justice, each and every State legislate the creation of a Special Prosecutor's Office for the Police. Nothing less will do.