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“When the Police Become Prosecutors”


The New York Times recently ran an important op-ed highlighting a serious issue in our criminal justice system that many people do not know about. While many voters have realized that prosecutors hold the keys to a fairer criminal justice system, many do not realize the police also wield a significant amount of prosecutorial authority. In fact, in a number of states, police can actually act as prosecutors, and file criminal charges–as well as serve as witnesses–in criminal defense cases. In other words, criminal defendants must defend themselves against the very officers who arrested them.

The Case of South Carolina

Take, for example, the case of South Carolina, where the magistrate and municipal courts do not have any prosecuting attorneys, leaving police to prosecute their own misdemeanor arrests. In addition, approximately 90 percent of defendants have no attorneys, leaving them to face the officers completely on their own. Given that lower-court judges also do not have to be barred attorneys, that means that thousands of convictions occur each year without any input from an attorney, at any point in the process. How does that not violate the Sixth Amendment?

North Carolina

Unfortunately, South Carolina is not alone: In a number of other states, police end up serving as de facto prosecutors because prosecutors often lack the resources and time to screen minor arrests, resulting in most minor arrests being routinely prosecuted, where formal criminal charges are always brought. What does this look like on a practical level? It means that the “prosecutorial declination rate” (i.e. the rate at which prosecutors decide not to bring formal criminal charges) for drug offenses brought against African-American women in North Carolina is zero. In other words, every single drug arrest—no matter how minor the crime—was always brought as a formal criminal charge.

Alaska & Texas

This doesn’t just cover drug offenses, but what many would not even consider to be actual crimes–non-traffic misdemeanors, for example. In Alaska, the non-traffic misdemeanor declination rate in municipal court was less than four percent in 2015. In Texas, it was approximately eight percent. In other words, in jurisdictions like these, if you get arrested for a non-traffic misdemeanor, you are charged with a crime.

The Disparity: Everywhere Else, Prosecutors Decline To Prosecute

Conversely, at the federal level and in states where police do not act as prosecutors, prosecutors decline a significant percentage of cases. At the federal level, for example, prosecutors decline approximately one-third of all felony cases. In Baltimore, prosecutors reportedly decline more than 20 percent of arrests related to disturbing the peace and/or disorderly arrests, deciding to send people home instead. In the Bronx, district attorneys decided to stop prosecuting trespass altogether in 2012, and in Brooklyn, prosecutors do not prosecute marijuana possession crimes.

Contact Our Florida Criminal Defense Attorneys with Questions

Florida has its fair share of civil rights concerns when it comes to police, prosecutors, and the implication of Sixth Amendment rights. If you have faced an arrest and/or criminal charge in Florida, contact our experienced Florida criminal defense attorneys at the Baez Law Firm today to find out how we can help.


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