Group #5 Criminal Law & Procedure
• Suicide By Cop? How Junk Science and Bad Law Undermine Police Accountability
Jeff Selbin, University of California Berkeley Law
This paper grew out of a clinic project on police accountability in Oakland, California. In the United States, police kill at least 1,000 people annually, and they kill Black men at more than three times the rate they kill white men. In spite of these horrific numbers, police killings are grossly underreported.
Reform advocates attempt to curb the excessive use of police force through a variety of mechanisms, but administrative sanctions (reprimands, suspension, termination) are uncommon and criminal liability is exceedingly rare. Victims and their families can seek money damages through Section 1983 lawsuits alleging constitutional violations, but qualified immunity protects many officers from liability, case law give courts wide latitude to determine the reasonableness of officers’ conduct, and officers almost never incur personal liability because of formal and informal government indemnification. In addition to these substantial hurdles, police defenders also attempt to shield officers from civil liability by invoking science. As one exculpatory rationale for police killings, city attorneys often allege that victims of police use of force engaged in behavior deliberately intended to elicit a lethal response – so-called “suicide by cop.” Although suicide by cop is not an accepted scientifically established phenomenon, police lawyers hire forensic psychologists as experts to testify that the victim wanted to die at the hands of police. In Part I of the article, we describe “suicide by cop,” including the cottage industry of professionals who have developed and advanced the theory.
In Part II, we identify troubling aspects of suicide by cop, including the dearth of meaningful research on the issue. In Part III, we describe the role of suicide by cop in civil rights lawsuits brought against police officers for excessive use of force. In Part IV, we explore in more depth recent cases that expose the injustice of suicide by cop in the courtroom. We conclude by making recommendations to address this disturbing trend that shifts the blame for excessive use of force from the police to the victim, shields police officers from accountability for their actions, and undermines the country’s civil rights laws.
• Courteaucracy
Evelyn Malavé, New York University School of Law
Criminal legal system reformers have long struggled to turn the tide of mass incarceration in the United States—often because of the resistance reforms encounter from criminal legal system actors themselves. Police, prosecutors, and judges have played a key role in pushing back against legal and policy changes that threaten the status quo. This article seeks to develop our understanding of how criminal legal system actors respond to reform efforts by shining a spotlight on another less-scrutinized actor in the criminal legal system: criminal court administrators.
As this article will explore court administrators, including both judicial and non-judicial actors, and utilize the administrative powers delegated to them to substantively shape the development of criminal law by both shaping the implementation of criminal legal system reforms and guiding judicial interpretation of statutes and court decisions that establish protections for criminal defendants. Crucially, court administrators link these decisions, which have the effect of weakening procedural protections for criminal defendants, to the need to protect public safety and conserve court resources.
This article will conclude by analyzing the role of criminal court administrators through the lens of critical race theory: as an example of the systemic nature of barriers to reform. At a time of massive reckoning with the criminal legal system and the limits of reform compared to abolition, this paper will conclude that understanding the unique role of criminal court administrators in preserving the status quo is necessary to navigate the best path forward for change.