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Cleveland's Alternative Path to Justice

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Ohio law being used by community leaders in Cleveland to seek prosecution of police officers involved in the fatal shooting of 12-year-old Tamir Rice is highly unusual: It allows any citizen to petition a magistrate or judge to initiate prosecution, instead of relying on the usual process where the decision is up to a professional, in this case the Cuyahoga County prosecutor. Although very few states have such laws, they may be useful in situations where the prosecutors are compromised -- for example, by an ongoing relationship with the police force. But the Ohio law is also, in a way, a throwback to a time before prosecutors -- and before police.

Families of people victimized by police face structural problems when seeking their day in court. Under ordinary circumstances, they have to wait for prosecutors to decide whether to bring charges. To be fair, almost all prosecutor’s offices do sometimes bring charges against police for criminal wrongdoing. But the burden is generally extremely high.

There is at least one good reason that the burden should be so high: Police officers risk their lives to do their job. No system of law enforcement can function if the police think they are constantly going to be second-guessed in life-threatening situations.

But the good reason for the high burden is counterbalanced by a fundamental problem. Prosecutors and police have to work together all day, every day. Without police participation, no case could ever be prosecuted. Thus, police departments and prosecutorial offices are by necessity institutionally aligned. Their interests overlap, and are in many cases almost identical. Many police officers treat prosecutors they encounter off duty the same way they would treat off-duty police. Prosecutors are frequent inclined to do the same for the police in turn.

Given this alignment of interests and personnel, it’s extraordinary difficult for prosecutors to bring charges against police officers. Police departments often have quasi-independent bureaus of internal affairs to investigate misconduct. But it's rare for a prosecutor’s office to have a special squad focused on police.

All this explains why it can be valuable for victims’ families to have at least the option of going around the prosecutor’s office and seeking a court-ordered prosecution from an independent judge. The Ohio law dates back to 1960. At the time, as now, such laws were rare. In 1955, an anonymous student note in the Yale Law Journal reported that seven states then allowed courts to appoint a prosecutor if the public prosecutor failed to bring charges. In 1957, a state appellate court in Ohio ruled that an individual could proceed in criminal court with a private prosecutor. The 1960 law seems to have been intended to formalize that decision, and require a judge or magistrate to approve private prosecutions.

On the other side of the argument is the modern reality that prosecution is now conceived as a public function, not a private one. In the early days of the common law, criminal prosecutions were typically brought by private parties, just like civil suits for damages. In that era, there were also no police forces in the English speaking world. The framers of the U.S. Constitution lived in a world in which state prosecutions and state police were equally novel ideas. The Bow Street Runners, often called the first modern police force in the English-speaking world, were founded in London in 1742 -- originally with only six members.

Official state prosecution grew up in tandem with police forces. Both reflected the belief that the government had an affirmative obligation to provide law and order. In a democratic society, runs the theory, you shouldn't have to rely on your own means to get justice done. The state should do it for you. If the state fails, the remedy is to elect new public officials -- not turn back to a pre-modern system of private justice.

To some extent, the Ohio law protects against a retrograde tendency to private prosecutions. You can't just bring a prosecution on your own -- you have to ask for a court to order it. Nevertheless, the law, if it were actually used, would tend in the long run to give an advantage to families with greater means or greater political clout. They, after all, would have the resources to collect affidavits and go to court. Tamir Rice’s family has that capacity because this case attracted national attention and the help of clergy and civil-rights leaders. But the families of other, less heralded victims might not be so fortunate.

Nevertheless, the possibility of some inequality doesn't outweigh the value of a legal escape hatch for avoiding the prosecutor’s office, especially when charges are sought against police. Short of keeping an independent ombudsman with the capacity to bring charges, prosecutors’ offices are always going to be tempted to go easy on the police with whom they must work. Ohio's law deserves to be copied -- not just by a few jurisdictions, but by all.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net