- CATO Institute: The Problem with Prosecuting Police in Washington State
This first edition of the SPOTLIGHT ON POLICING Series features a CATO Institute analysis of national prosecution rates for criminally charged law enforcement officers. Here, CATO applies its analytics to reveal how Washington State has a systemic bias against prosecuting and convicting law enforcement officers that goes beyond state laws unfavorable towards the successful prosecution of a charged law enforcement officer. Published as a part of its ongoing National Police Misconduct Statistics and Reporting Project [NPMSRP], CATO’s report has implications for states across America. We recirculate the report that was originally published under Creative Commons licensing. See below.
Recently, here in the state of Washington, King County prosecutors announced that they would not charge Seattle Police Officer Ian Birk for the shooting death of Native American woodcarver John T. Williams despite a police firearms review board deciding that the shooting was unjustified. In this case, prosecutors cited Washington State law which they say sets such a high bar against prosecuting police officers in such cases that they could not charge Birk even though his actions appeared negligent at best.
While most legal experts cited in the news confirmed that Washington’s laws, which require a nearly impossible burden of proving malicious intent to charge an officer who kills in the line of duty, could be a plausible reason for refusing to prosecute Birk. Other experts also cited how difficult it is in general to prosecute a police officer anywhere in the US for any reason, especially when the alleged criminal act occurred on duty. But this presents us with a question; could this be just a Washington problem or is this indicative of a much more systemic problem in the US?
The National Police Misconduct Statistics and Reporting Project has been gathering data including criminal cases against law enforcement officers for nearly two years, perhaps the answer to some of these questions resides within that data.
To establish a baseline we can look to the latest data released by the US Bureau of Justice Statistics (BJS) which indicates that the conviction rate for members of the general public who were tried on criminal charges ranged around 68% from 2002 through 2006. Furthermore, the US BJS reports indicated that the incarceration rate remained fairly stable at an average of 70% and the average length of post-conviction incarceration for the general public was 49 months.
For a comparison we can use data from our National Police Misconduct Statistics and Reporting Project (NPMSRP) which tracked over 8,300 credible reports involving allegations of police misconduct in the US from April of 2009 through December 2010 which involved nearly 11,000 law enforcement officers within those 21 months. Of those reported allegations, only 3,238 resulted in criminal charges against law enforcement officers. Of those 3,238 criminal cases against law enforcement officers in the US, only 1,063 officers were ultimately convicted of those charges or reduced charges associated with the original allegations. Of the law enforcement officers who were ultimately convicted, 36% were ultimately sentenced to spend any time incarcerated and the average length of incarceration for those sentenced to prison or jail was approximately 34.6 months.
This would appear to indicate that there are disparities on a national scale between how law enforcement officers are treated in the criminal justice system since conviction and incarceration rates for law enforcement officers are nearly half that of the conviction and incarceration rates for the general public and, even when convicted, law enforcement officers spend 29% less time behind bars on average than the rest of the public.
The disparity becomes even more apparent when we focus only on excessive force cases. Of the 2,716 law enforcement officers involved in alleged incidents where use of force was questioned, only 197 were ultimately charged with a criminal offense and, of that 197, only 77 were convicted. Of even more relevance, for the 426 law enforcement officers who were accused of using excessive force in incidents where a fatality occurred, only 28 faced charges and half of those who were prosecuted ended up being convicted.
It is interesting that, even though the prosecution rates for non-fatal and fatal excessive force incidents are at an identical 7%, the conviction rate for fatal excessive force cases is 11% higher, at 50%, than the non-fatal excessive force conviction rate of 39%. As a comparison point, off-duty assault allegations result in criminal charges 55% of the time and end in a conviction 24% of the time. Off-duty murder allegations result in a prosecution rate of 71% and conviction rate of 45% which appears to indicate that on-duty violence is tolerated more than off-duty violence.
Oddly, this would give the appearance that it may be easier, not harder, to convict police officers accused of fatal use of excessive force, in fact the conviction rate for fatal excessive force cases was higher than any other type of case according to the data we’ve gathered (followed by murder at 45% and sexual offences at 41%). This would also appear to indicate that successfully prosecuting excessive force cases may not be as difficult as suggested since the conviction rates for these cases are actually higher than the overall average law enforcement conviction rate of 37%.
However, these numbers could also indicate that prosecutors are far more particular about what excessive force cases they pursue since the charge rates for both non-fatal and fatal excessive force cases are so much lower than any other type of case. In fact, there does appear to be an inverse relationship between prosecution and conviction rates when it comes to law enforcement officers (when excluding drug-related cases).
So, examining data on the national scale appears to present us with a mixed picture of how the justice system treats law enforcement officers. While it is clear that police are treated with much more leniency than the general public when facing criminal allegations, this still leaves the question of whether the laws themselves have some effect on this pattern.
When we examine the same data on a state-by-state basis the results give us a very interesting answer to this question. To demonstrate, here are the five states with the lowest prosecution rates for law enforcement officers in the US (AVG 32%):
- Washington DC 05%
- Washington 16%
- Vermont 18%
- West Virginia 20%
- Oregon 20%
And here are the five states with the worst law enforcement conviction rates (AVG 37%):
- Alaska 14%
- Washington 17%
- Connecticut 18%
- Colorado 19%
- Georgia 19%
- New Mexico 19%
Notice how Washington resides near the top of both lists. In fact, for the 21 months of the sample period, Washington state police officers were implicated in 186 alleged incidents of misconduct but only 30 cases resulted in criminal charges and, of that 30, only 5 were ultimately convicted of a criminal act. Of those 5, none were sentenced to any prison or jail time.
Also, of the five convictions in Washington, none involved excessive force and two occurred during the course of the officer’s duties:
- A Washington State Trooper was convicted on a custodial sexual misconduct charge for groping a woman in a cruiser.
- A Medical Lake police officer was sentenced to probation in a plea deal in a sexual harassment case.
- A Wahkiakum County deputy pled guilty to a disorderly conduct charge which was reduced from the original domestic violence charge.
- A Seattle police officer was convicted in Grays Harbor County for driving under the influence in a case where he was accused of asking for some professional courtesy when he was arrested.
- A Kitsap County deputy received a diversionary sentence for a DUI charge.
Four of the incidents which resulted in criminal charges for law enforcement officers involved allegations of excessive force and two of those involved fatalities. One of those cases, an Everett Washington police officer charged with manslaughter for fatally shooting an unarmed man in a parking lot, resulted in a not-guilty verdict during a jury trial. This brings us to consider the possible reasons for the apparent difficulties in holding police officers accountable before the law in Washington State.
When we examine the history of law enforcement officers who were prosecuted for excessive use of force in Washington in recent history here is what we find:
- In December of 2008, US Attorneys failed to convict King County deputy Brian Bonnar on allegations that he dropped a knee on a restrained woman’s head and slammed her head into a cruiser fender after she was compliant, despite testimony from a number of other deputies that supported the prosecution’s case.
- In March of 2009, King County prosecutors failed to convict King County deputy Don Griffee despite testimony from fellow deputies that supported allegations that Griffee had punched a cuffed man detained on false allegations in his cruiser.
- In April of 2009, the Spokane Washington prosecutor refused to charge a Spokane County Sheriff’s Sergeant over allegations he was peeping into a teen girl’s window and resisted responding officers despite sufficient evidence. The prosecutor, in an alleged conversation with a sheriff’s lieutenant, claimed that “he felt their job was to go after criminals and not law enforcement officers demonstrating a temporary lapse in judgment.”
- In August of 2009, a Spokane Washington jury found Sponake police officer Jay Olsen not guilt of assault and reckless endangerment charges for shooting an unarmed man in the back of the head outside of a bar while off-duty.
- In September 2009, a Spokane Washington jury refused to convict Spokane Police Officer Rob Boothe on allegations he kicked a handcuffed suspect in the face despite testimony from two fellow officers who claimed they saw him kick the prone man.
- In April of 2010, a Snohomish County jury acquitted Everett Washington police officer Troy Meade of second degree murder and/or first degree manslaughter for shooting an unarmed man to death in a parking lot after tasering him while he was intoxicated behind the wheel of his car but blocked in by police cars and a fence. The verdict was reached despite the testimony of a fellow police officer who claimed that the use of fatal force was unnecessary and that he heard Officer Meade remark “enough is enough, time to end this” before opening fire.
- In July of 2010, after failing on two occasions to successfully prosecute King County Deputy Paul Schene on a misdemeanor assault charge for beating a 15-year-old girl in a holding cell, prosecutors dropped all charges. The trial and retrial resulted in hung juries both times despite the existence of videotape showing the assault.
In each of these cases juries discounted or ignored the testimony of police officers against the accused and/or video evidence supporting the charges. Additionally, since the specific law cited in the Williams case doesn’t apply to most of these cases it appears as though there are other factors affecting the conviction rate against law enforcement officers in the state of Washington.
What does this mean?
An examination of the numbers indicates that, while law enforcement officers generally enjoy favorable treatment when facing criminal charges in the US generally, the problem appears significantly pronounced in Washington State. When we examine the data in combination with the history of criminal cases involving police officers in Washington it begins to appear as though the reason why police officers are so infrequently prosecuted is a combination of laws that prevent officers from being held accountable, juries who consistently refuse to convict police officers accused of criminal acts even when there is compelling testimony and evidence in favor of conviction, and prosecutors who appear risk averse when it comes to the prospects of prosecuting police officers for any reason.
It also becomes clear that, while it is generally difficult to prosecute law enforcement officers in the US in general, the ability to do so in Washington State is greatly hampered by a perfect storm of all these factors combined together in a way that forms a feedback loop of sorts which discourages prosecutors from prosecuting police officers with the same vigor as other members of the general population.
Because of this complex dynamic at play, bringing the prosecution and conviction rates back towards the norm in Washington would require more than just changing the law, it would also require a sea change of public perception, better training for prosecutors who need to use tactics than usual when prosecuting officer-involved cases against lawyers who specialize in defending police officers along with efforts to provide incentives to prosecutors who decide whether prosecuting a cop is worth the political risk of angering police unions that represent the officers they depend upon to do their jobs.
Certainly Washington State’s problems with police accountability are not unique to this state, yet they do appear to be far more exaggerated than in any other state. Thus it will take far more than simple fixes to address these problems and the first step must involve convincing the public that such changes need to be made and that holding law enforcement officers to the same standards we are all held to is vital to maintaining a sustainable criminal justice system. ♦♦♦
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