OUT OF ORDER

Bill Cosby, Tamir Rice, And The Power of Prosecutors

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

01.01.16 5:01 AM ET

What do Bill Cosby and Tamir Rice have in common? Their cases reveal the immense power of prosecutors.

Consider the fact that in 2005, Andrea Constand told police that Bill Cosby gave her drugs and sexually assaulted her. Why wasn’t he charged? The prosecutor didn’t think there was enough evidence.

Ten years later, Cosby is charged. Why? Partly because of new bits of evidence—Cosby’s admission that he sometimes gave women drugs in order to have sex with them, and at least 50 other accusations against him. But mostly, because now there’s 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 deaths were ever charged—not 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 case 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 Garner’s death. And most recently, in Cleveland, Tim McGinty stated openly that he didn’t believe anyone should be charged in the shooting of 12-year-old Tamir Rice.

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

True, there is some oversight: Most of these prosecutors are elected. If voters don’t like how they’re doing (or not doing) their jobs, they can vote them out of office. Indeed, in the case of Bill Cosby, then-DA Bruce Castor’s 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 running for positions 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 percent conviction rate” and “tough sentences for sexual predators.”

That’s what people want, right? They see prosecutors 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 convictions more than justice. Second, they have an incentive not to charge police officers, who after all are fighting crime every day, and with whom they work closely on a daily basis.

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

Now back to Cosby. If you pay close attention to what Steele said this week, you’ll notice that he went out of his way to mention the new evidence that has come to light in the last 12 months. “A prosecutor’s job is to follow the evidence wherever it leads and whenever it comes to light,” he said (PDF), announcing the arrest.

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In part, this was to explain the nearly 12-year gap between the crime and the charge. But in large part, it was to explain why Cosby is being charged in 2015, but wasn’t in 2005.

And what is that new evidence? Only what is known as “habit evidence”: that Cosby admitted to drugging and having sex with other women. But not Constand—however ludicrous it may seem, Cosby’s position is that she consented.

Is habit evidence really enough to reopen a closed case and file charges? Again, that’s another judgment call. Like Judge Robreno’s decision to unseal the damning deposition records, Steele’s decision was basically up to him.

Of course, Steele chose to make it an election issue as well. He’d look foolish if, having just accused Bruce Castor of doing nothing, he did nothing too. But again, that was Steele’s decision. Just as prosecuting “America’s Dad” in 2005 might have made Castor look bad, prosecuting America’s Rapist in 2015 makes Steele look good.

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

Finally, of course, Tamir Rice and Bill Cosby have more in common than under-zealous prosecutors: 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 percent 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 men comprise 6 percent 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 prosecutors 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 standard other than majority whim. After nearly 12 years, Bill Cosby has indeed been charged with a crime. But only because a prosecutor decided to do so—this time.