Prohibition’s Lingering Shadow: Under-Regulation of Official Uses of Force

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Grand jury determinations that officers would face no charges in the shooting death of Michael Brown or in the choking death of Eric Garner sparked controversy and riots. This is, of course, a challenge to the ability of the criminal justice system’s ability to resolve society’s most contentious issues. Highly contentious racial issues have long defied resolution through deliberative processes, even though the law strives to achieve outcomes that will be viewed as legitimate. Poorly defined rules of criminal procedure, however, have contributed to judicial resolutions that the public finds unsatisfactory. Our constitutional scheme for regulating police – which traces its history to Prohibition – lacks anything approaching clarity on the appropriate use of force by officers. With no clear rules for officers to follow, or break, officers often find sympathetic jurors and grand jurors who find themselves unable to then convince the public that their view of reasonableness was anything other than bias. By contrast, the rules regulating searches and seizures of evidence are reasonably clear as a result of the exclusionary rule, which forbids the use of illegally obtained evidence in a criminal trial. The use of this rule as the primary means of governing police is an accident of history that has left searches far better regulated than police violence – a distinction that is hard to justify in light of its historical origin and the present need to have meaningful rules on the use of police force.