Bill Cosby, Tamir Rice, And The Power of Prosecutors

Sometimes, the only discrepancies between a charge and no charge is the discretion of a single, unaccountable prosecutor.

What do Bill Cosby and Tamir Rice have in common? Their occurrences expose the enormous power of prosecutors.

Consider the fact that in 2005, Andrea Constand told police that Bill Cosby dedicated her drugs and sexually assaulted her. Why wasnt he charged? The prosecutor didnt think there was enough evidence.

Voters who want to get tough on crime do not wishes to get tough on policemen .

Ten years later, Cosby is charged. Why? Partly because of new bits of evidenceCosbys admission that he sometimes devoted girls narcotics in order to have sex with them, and at the least 50 other accusations against him. But mostly, because now theres a different prosecutor, Kevin Steele.

These are judgment calls, in 2005 and 2015.

Now consider the cases of Tamir Rice, Michael Brown, and Eric Garner. None of the police officers responsible for their demises were ever chargednot convicted charged . In all three cases, prosecutors practically told grand juries not to indict.

In Ferguson, Robert McCulloch decided to simply present all the evidence to the grand jury, rather than make a suit against Officer Darren Wilson. In Staten Island, Darren Donovan, a Republican with extensive ties to the police department, failed to secure an indictment against Daniel Pantaleo, whose chokehold led to Eric Garners demise. And most recently, in Cleveland, Tim McGinty stated openly that he didnt believe anyone should be charged in the shooting of 12-year-old Tamir Rice.

Set aside, for the moment, the facts of these cases. Whats striking in all of them is that county prosecutors and district attorneys, singlehandedly and without oversight, choose the fates of the accused. More judgment calls, unreviewed and unreviewable.

True, there is some oversight: Most of these attorneys are elected. If voters dont like how theyre doing( or not doing) their jobs, they can vote them out of office. Indeed, in the case of Bill Cosby, then-DA Bruce Castors decision not to indict in 2005 became an issue in his election battle with Kevin Steele this year.

But is this really oversight? As The Daily Beast reported last September, voters often know next to nothing about the candidates operating for stances as prosecutors or judges. Turnout is extremely low, especially in off years. And when voters are paying attention, they are bamboozled by the only campaign message that seems to work: tough on crime.

This year, for example, Steele ran on his 98 percentage conviction rate and tough sentences for sexual predators.

Thats what people want, right? They consider attorneys as agents of the criminal justice system, and everyone wants less crime.

This leads to two perverse incentives for prosecutors. First, they have an incentive to over-charge criminal defendants and secure sentences more than justice. Second, they have an incentive not to charge police officer, who after all are fighting crime every day, and with whom they closely linked on a daily basis.

In principle, if Officers Pantaleo, Wilson, and Loehmann transgressed the law, then they are offenders. But in practice, they are policemen, and perceived as the opposite of criminals. Voters who want to get tough on crime do not wishes to get tough on cops.

So not only is there no meaningful oversight of prosecutors, but the oversight that does exist is skewed to specific outcomes and behaviours , not impartiality and performance.

Now back to Cosby. If you pay close attention to what Steele said this week, youll notice that he went out of his style to mention the new evidence that has now come sunlight in the last 12 months. A prosecutors chore is to follow the evidence wherever it leads and whenever it comes to sunlight, he said( PDF ), announcing the arrest.

In part, this was to explain the nearly 12 -year gap between the crime and the charge. But in big portion, it was to explain why Cosby is being charged in 2015, but wasnt in 2005.

And what is that new proof? Merely what is known as habit proof: that Cosby admitted to drugging and having sex with other women. But not Constandhowever ludicrous it may seem, Cosbys position is that she consented.

Is habit evidence actually enough to reopen a closed case and file charges? Again, thats another judgment bellow. Like Judge Robrenos decision to unseal the damning deposition records, Steeles decision was basically up to him.

Of course, Steele chose to make it an election issue as well. Hed look foolish if, having just accused Bruce Castor of doing nothing, he did nothing too. But again, that was Steeles decision. Just as prosecuting Americas Dad in 2005 had an opportunity to built Castor look bad, prosecuting Americas Rapist in 2015 stimulates Steele appear good.

We imagine that district attorneys and other prosecutors are motivated by truth, justice, and the American route. But in fact, they are elected officials who paint in broad strokes for a mostly ignorant public; who, unlike magistrates, cannot be held accountable for their misconduct by oversight boards; and who exert discretion so broad that the disposition of justice often lies altogether within their judgment.

Finally, of course, Tamir Rice and Bill Cosby have more in common than under-zealous attorneys: both African-American males, one quite young and one quite old, operating in a system in which 95 percent of prosecutors are white and local police forces are 88 percentage white.

For decades, Cosby was protected by his wealth, celebrity, class, and connections, particularly at Temple University. But he is the exception , not the rule. Black humen comprise 6 percentage of the U.S. population, but 35 percent of the prison population. They receive sentences roughly 10 percent more severe than white defendants convicted of identical crimes. And when they are perceived to be older than they are, bigger than they are, more dangerous than they are, or more violent than they are, their 88 percent-white police officers and 95 percent-white attorneys exercise discretion in remarkably similar ways.

The United States is the only country in the world that elects prosecutors based on sloganeering and then holds them to no criterion other than majority caprice. After virtually 12 years, Bill Cosby has indeed been charged with a crime. But only because a prosecutor decided to do sothis time.

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