The state is one of eight that allows cops to arraign people on misdemeanor charges. Advocates and academics say the practice is unjust.
This story first appeared on The Appeal, a nonprofit criminal justice news site.
On a recent Friday morning during arraignments in Rhode Island’s Sixth District Court, a dozen police officers filled the front row of the gallery.
As the judge called defendants to the bench, a police officer from the city or town where the arrest happened approached the prosecutor’s lectern and determined the charges, recommending bail or fines when necessary.
In most other courtrooms in the United States, a trained district or county prosecutor handles all arraignments; in Rhode Island, it’s left to the police.
Police officers in the state conduct nearly every arraignment in criminal cases. However, Rhode Island isn’t alone in giving police the authority to make charging decisions and prosecute arrests.
Police officers act as prosecutors in eight other states, The Appeal found through conversations with spokespeople for state courts and attorneys general, and other officials. In New Hampshire, New Mexico, South Carolina, and Virginia, police officers can act as prosecutors throughout the entire misdemeanor process – from a defendant’s first appearance through a plea or trial. In four states – Alaska, Delaware, Massachusetts, and Pennsylvania – police can only arraign cases.
Legal experts and advocates say prosecution by police is an illegal and unjust practice that profoundly shapes the criminal legal system. “Each individual case may carry limited or no jail time,” said Natalia Friedlander, an attorney at the Rhode Island Center for Justice. “But the cumulative effect of these thousands of illegitimate prosecutions is nothing less than systemic injustice.”
Unlike most states, Rhode Island has no district attorneys or county prosecutors. The attorney general has the power to prosecute all crimes in the state, though the office leaves misdemeanor prosecutions to each of the state’s 39 cities and towns. These municipalities leave misdemeanor arraignments to their police departments, avoiding the cost of hiring more attorneys to handle the first time a defendant appears in court.
In Providence, the state’s capital and largest city, not one of the city’s police prosecutors has a law degree, said department spokesperson Lindsay Lague. Providence Police Department prosecutors receive three months of on-the-job training with a current police prosecutor, said Lague. Some police prosecutors, she said, have “degrees in criminal justice, public speaking, [and] trial testimony.”
Rhode Island police prosecutors are also trained at police prosecution officer seminars hosted by the Roger Williams University School of Justice Studies. The Appeal obtained via public records request the slideshow presentation from the seminar, which overviews the basic elements of the arraignment process, including types of bail and different pleas. The slideshow also includes tips for the police officers, such as “highlight names and important facts” in a police report before reciting it to the judge.
Christopher Behan, Newport’s city solicitor, said misdemeanors are simple enough to arraign without a law degree. “A lot of these charges are straightforward charges within a police officer’s knowledge,” he told The Appeal. Behan says the police department will frequently call his office “if they aren’t certain on probable cause or application of a statute.” However, these charging decisions, said Andrew Horwitz, a professor at Roger Williams University School of Law, require making legal analyses, such as whether there is enough probable cause to bring charges, and thus require formal legal training.
Conducting arraignments without a law degree constitutes the unauthorized practice of the law, according to Horwitz, who has studied the issue in depth and published a law review article on the topic. Horwitz also directs the criminal defense clinic at the law school. “We have laws in Rhode Island, and in every other state in the country, that say it is a crime to practice law without a degree,” Horwitz told The Appeal.
But Craig Berke, spokesperson for the Rhode Island Judiciary, wrote in an email that “The activities of police prosecutors in the arraignment courtrooms has never been construed to be the ‘practice of law.’” Although the Supreme Court of Rhode Island has never ruled on this question, two state supreme courts, in South Carolina and New Hampshire, have ruled that state law allows police officers to prosecute criminal cases – arguing that judges can oversee the police and correct any misconduct.
The attorney general’s office declined to comment on whether police prosecutors are breaking the law. “Deeming something an ‘unauthorized practice of law’ is not a decision he would make,” said Kristy dosReis, the office spokesperson.
Legality of the practice, however, is just one of many concerns that experts and advocates have raised. For example, Horwitz told The Appeal, police officers are not bound to the code of ethics that holds lawyers accountable. “A prosecutor is ethically bound to exercise discretion. A police officer has no such duty,” he said. That discretion, said Alexandra Natapoff, professor of law at the University of California, Irvine and author of Punishment Without Crime, is crucial to and hugely impactful on the lives of those being arraigned. “The moment when an arrested person becomes a defendant is when the criminal system is supposed to make a thoughtful decision about who should enter the adversarial process,” said Natapoff.
In Providence, every arrest made by the police department turns into a charge, said Lague, the spokesperson. Prosecuting each arrest without exercising discretion violates the American Bar Association’s prosecutorial standards, which lists 16 reasons a prosecutor should decline to press charges. These reasons range from the weakness of a case to more serious issues, including improper conduct by law enforcement, the influence of any improper biases, or the effect of prosecution on public welfare.
Prosecutors are supposed to serve as bulwarks against charges that are frivolous, unsubstantiated or unjust, said Friedlander, the attorney at the Rhode Island Center for Justice. In Rhode Island District Court, Friedlander explained, no such bulwark exists. This lack of independent review, she said, creates a clear conflict of interest between the goals of local police departments and the role of a prosecutor, which, according to the bar association is, “to serve the public and not any particular government agency, law enforcement officer or unit, witness or victim.”
Proceeding with charges is a serious decision that can mean the difference between a life with a criminal record and one without, said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. “Those convictions have enormous collateral consequences that stay with people for the rest of their life,” Reimer said. “These are very consequential proceedings when you get a criminal conviction.”
Stephen Erickson, who served as a Rhode Island District Court judge for 20 years, described one example he observed from the bench. In Warwick in the early 2000s, Erickson explained, “The police were laser-focused on prosecuting shoplifting, even minor offenses,” he said, seeking convictions in all cases––rather than community service or dropping the charges, as other police departments would. “It’s almost as if they were an arm of the Warwick Chamber of Commerce,” Erickson said.
Horwitz believes Peter Neronha, the state’s attorney general, is in a position to change the status quo. “If something illegal is happening in his state, he should exercise that same prosecutorial discretion I am talking about to address it.”
One solution, Horwitz said, is to have the attorney general’s office take over misdemeanor prosecutions. When asked whether he would support such a solution, Neronha cited the challenge of asking for money from the state legislature to hire more lawyers. “In a perfect world, would I do that? Of course I would,” Neronha said. “But I also know what’s realistic and what isn’t right now.”
Berke, the state courts spokesperson, also cited money and pragmatism as concerns. “These issues involving the use of police prosecutors are intertwined with a practical and fiscal reality which cannot be ignored,” he said. “The courts and the litigants, in their varying roles, are constrained to deal with that reality.” As a result, the fiscal burden of prosecuting misdemeanors is left to cities and towns, each of which must staff police officers to attend court each morning.
Alternatively, Erickson said that the court’s chief judge, Jeanne E LaFazia, could issue an order that no one without a law degree may conduct arraignments. When asked whether the chief judge could issue such an order, Berke said, “The decision to delegate prosecutorial responsibilities to the cities and towns rests solely with the office of the attorney general.”
Rhode Island does not face any legal challenges over its use of police prosecutors, but experts like Horwitz say the practice deserves more scrutiny. “At the initial, and in some ways most important stage of the criminal process,” he said, “the state is committing a crime in an effort to prosecute a case.”
Prosecutors across the country are increasingly intervening in the first stages of the criminal process to implement progressive policy changes. In Boston, Suffolk County District Attorney Rachael Rollins developed a list of 15 charges, such as shoplifting and minor driving offenses, that should generally be either dismissed before arraignment or diverted and treated as civil infractions. Similarly, in Philadelphia, District Attorney Larry Krasner directed his staff to not seek money bail for a majority of the offenses his office charges, in addition to other reforms.
Said Natapoff: “There is a new appreciation for just how profoundly prosecutors shape the American criminal system.”