The summer of 2020 presented the American public with two very different versions of how a state’s top prosecutor might respond to excessive use of force by law enforcement. In Kentucky, Attorney General Daniel Cameron was criticized for his conduct after stories emerged of his biased presentation to a grand jury contemplating whether officers should face criminal charges for killing an unarmed person, Breonna Taylor, in her own home. In Minnesota, Attorney General Keith Ellison proved to be less controversial as public sentiment emphasized his willingness to pursue the type of justice that the public demanded against all of the officers involved in killing an unarmed George Floyd upon suspicion that he used a counterfeit $20 bill. The outcome of the criminal charges against the officers involved in the killing of George Floyd remains to be seen, but the transparency of Attorney General Ellison’s decisions fostered positive reactions from those evaluating his use of the criminal process.
The unique moment of racial reckoning about law enforcement’s racial bias in its use of force that has resulted from the events of the summer has brought to the surface some hidden truths about the criminal process. Most clearly, the difference in outcome and public perceptions of the criminal investigations into the deaths of Breonna Taylor and George Floyd brings to the forefront the extent to which the grand jury process allows a prosecutor to “perform” the prosecutorial function without actually engaging in what the public would consider a good-faith examination of the evidence. What is also clear is that, when prosecutors rely on police investigation decisions that themselves may have originated from racial bias, there is limited confidence the nation can have that the criminal process is free from racial bias
A moment such as this, marked by massive public protest about racial inequities in the criminal justice system, requires prosecutors to carefully examine their standard prosecutorial practice and remove any processes that could facilitate or enhance racial inequities. In other words, prosecutors should accept these public protests as formal notice that something is awry, that they need to carefully examine their legal practice, and that they must fix any problems they find in that examination. This Essay explores two important ways to address the problems brought to the forefront by the criminal processes resulting from Breonna Taylor’s and George Floyd’s deaths. These would be to confront how both the grand jury process and the widespread, systematic acceptance of police officer narratives for initial charging decisions can foster racial bias. These two realities can hide the influence of racial bias in what appears to be a neutral criminal process, thus allowing the prosecution to perform as a minister of justice while actually reinforcing the very systemic marginalization that this moment of reckoning and the prosecutor’s own ethical obligations demands be addressed.
Irene Oritseweyinmi Joe, Probable Cause and Performing "For the People", 70 Duke Law Journal Online 138-160 (2021)