The IL Attorney General: Holding Law Enforcement Accountable

By: Reese Rosental Saporito 

Edited By: Hannah Cheves and Kiran Sheth

In today’s society, marginalized communities often suffer at the hands of law enforcement officials. Many times, lawsuits and complaints against these officials go unnoticed and unpunished. The most recent set of Illinois criminal law reforms includes Section 10-116.7, which allows the Illinois attorney general to sue law enforcement with reasonable cause.[1] This long overdue change will bring solace for those who previously suffered at the hands of government officials. 

Allowing the attorney general to get involved in such cases means that the system will become less discretionary, as actions by law enforcement will be scrutinized by higher authorities. Increased involvement by the state’s attorney general will help convict police officers for their wrongdoings and help reduce the popular culture stereotype that no police shootings are bad shootings.[2] Punishing police officers for engaging in conduct in violation of a person’s right to due process and a fair trial under the Constitution will lead to more accountability for police wrongdoing, and allow for due process for those affected. This can be seen with women’s rights in sexual assault cases in particular.[3]

The Illinois criminal justice system leaves many decisions to the discretion of law enforcement officers. There tends to be little oversight from mayors and elected officials when it comes to monitoring the police.[4] Discretionary decisions by police officers are often rooted in racial biases, thus creating specialized targets within our justice system.[7] Complaints filed against police officers for unlawful arrest or harm often have little impact due to loosely structured laws and regulations.[8] Therefore, improper police conduct is inadequately discouraged, punished, and prevented.[5] However, due to the recent Illinois criminal law reforms, enacted by the Illinois House and Senate, the attorney general will now be responsible for taking action against these violations. As long as there is reasonable cause to believe that the governmental authority in question acted in a way that violated the constitutional rights of another person, they can face prosecution.[6]

Now that the Illinois attorney general has the power to take civil action against officers for their wrongdoings, more police officers will be held accountable and punished for committing heinous acts that disproportionately affect communities of color. The criminal justice system is not impartial-law enforcement officials arrest people of color at much higher rates than white people. Oftentimes they are arrested for lesser crimes and often receive longer sentences than white people for the same crime. This will also deter behaviors that, “deprive any person of rights, privileges, or immunities secured or protected by the Constitution or laws,”[9] thus discouraging discretionary biases causing unequal treatment and unlawful arrests of targeted groups.

A major issue surrounding the actions of the police is how the media portrays their conduct. With this law in Illinois, there is potential for media headlines to start reading  “Officer Arrested” and the biases and discrimination held by police officers may no longer be ignored by the public. For decades, popular culture in America has perpetuated the idea that there are virtually no bad police shootings, such as in the TV series “Adam-12” on NBC.[10] This furthers the notion that a police officer firing their gun is always justified, without taking into account their circumstances or biases. This shields officers from repercussions involving wrongful shootings and creates the false narrative that an officer shooting their gun is self-defense or a “last resort”.[11] However, this is often not the case in real life. 

Officers turn to violence to assert dominance, even when it is not necessary, and the choice to act with violence is often a result of their own biases. They almost always justify this action by calling it an act of self-defense, and the legality is partially based on fear, an entirely subjective factor.[12] In 1989, the Supreme Court case Graham v. Connor established a standard of “objective reasonableness,” which held that one officer’s  choice to fire their gun will be compared to whether a reasonable officer  would have fired in the same situation or not.[13] Creating these subjective guidelines for whether or not an officer was justified in shooting their gun is ineffective in combating police misconduct, as they do not take into consideration the biases police officers have, nor the disparities in what groups are suffering from violent acts. These guidelines were not created to be objective, regardless of how they are defined, therefore, so long as they are in effect, people of color, lower-income people, and other disadvantaged groups will continue to suffer.  Now that these cases can be scrutinized by higher authorities such as the attorney general, police officers will receive ample punishment, such as termination of employment, fines, or even jail time, and set an example for how shootings will not be overlooked simply because the officer was scared, or claimed to be defending themselves.

By enacting these punishments, the attorney general will show law enforcement officers that these acts will no longer go unpunished. The attorney general will now be able to uphold a standard that there must be strong evidence that the officer  fired their gun because they were in a position of immediate danger or that it truly was their last resort. This will increase accountability and create a less discretionary justice system.

Allowing the attorney general to sue government officials has an impact that spreads further than racial biases and discretion in the field. It will also force police officers to do their job, regardless of what the officer’s  personal beliefs are, especially in cases of sexual assault. In Detroit, there are over 11,000 rape kits that have been sitting in a warehouse for years, untested and univestigated.[14] The deeper problem is that police officers do not believe women in such cases, and therefore do not sufficiently aid them in their fight to get justice against their rapists.[15] 

It is not the police officers’ right to decide who gets a chance at justice, and because they are not held accountable, they get away with not testing rape kits for years.[16] If a woman calls to report a rape, she is often encouraged to drop it, and if it does make it into the hands of a detective, it often closes with little investigation and no arrest.[17] In 98% of rape cases, the assailant goes free, making rape the easiest crime to get away with.[18] Based on the inaction of the police in Detroit, this could very well be because the rape kits are never tested, the women are brushed off, and police officers actively discourage women from even attempting to get justice.[19] 

If more attorney generals across the country gain the right to sue government officials like in Illinois, these officers will be forced to do their job, regardless of what their personal beliefs towards the victims are. An officer should report crimes without bias, enforce punishments against offenders, and investigate evidence. That will not happen until higher authorities actively punish misconduct. Police need to be held accountable by the attorney generals in all states and not allow these cases to be dismissed with no effort to bring justice on behalf of the women, particularly when many of these cases would be solved with even minimal effort from the police.[20] 

This bill, however, is not the end-all-be-all for criminal justice reform. While it will decrease officer discretion on the job, it could lead to increased judgment from prosecutors. Holding officers to a standard when it comes to firing their weapon and persecuting individuals will not allow them to get away with prejudice-based decisions they made in the field, such as shooting an unarmed suspect because of their race, regardless of whether they pose a threat. It will, however, allow for prosecutors to decide whether an officer’s actions were discretionary or if they were objectively correct in that situation. This leaves room for the prosecutor’s biases (racial, economic, gender, etc) to come in, which could result in law enforcement officials still walking free with no convictions for their crime. A way to combat this is the use of impartial juries.[21] The purpose of these juries is to reach an unbiased decision about the case, which while not foolproof, is the best way to eliminate the prosecutor bias that could result even if police discretion is decreased.[22] This is crucial in the process of removing preconceived opinions from the criminal justice system, and is a possible next step after the passing of bills like the Illinois ones.

Policing the police is long overdue. For too long they have gone into the field basing their decisions on biases and calling it discretion. In Illinois, the most recent criminal justice reform includes giving the state attorney general the power to sue government officials if they engage in conduct that violates the constitutional rights of others. Until these authorities such as the attorney general enforce accountability, law enforcement officials will continue to uphold the precedent that police officers are immune to repercussions in our justice system. Police officers being liable for their actions will help solve crimes and bring justice for those who have been unlawfully silenced by the legal system.

NoteS:

1. Allowing the IL Attorney General to sue government officials.

2. Alyssa Rosenberg, “In pop culture there are no bad police shootings.”

3. Barbara Bradley Hagerty, “An Epidemic of Disbelief.”

4. Professor Joanna Grisinger Lecture 6.3-How do we police the police?

5. Grisinger-Lecture 6.3.

6. Allowing the IL Attorney General to sue government officials.

7. Professor Joanna Grisinger Lecture 6.2-How are criminal laws enforced? Policing. 

8. Rosenberg, “In pop culture there are no bad police shootings.” 

9. Allowing the IL Attorney General to sue government officials.

10. Rosenberg, “In pop culture there are no bad police shootings.” 

11. Rosenberg, “In pop culture there are no bad police shootings.” 

12. Rosenberg, “In pop culture there are no bad police shootings.” 

13. Rosenberg, “In pop culture there are no bad police shootings.” 

14. Hagerty, “An Epidemic of Disbelief.”  

15. Hagerty, “An Epidemic of Disbelief.”  

16. Hagerty, “An Epidemic of Disbelief.” 

17. Hagerty, “An Epidemic of Disbelief.” 

18. Hagerty, “An Epidemic of Disbelief.”  

19. Hagerty, “An Epidemic of Disbelief.” 

20. Hagerty, “An Epidemic of Disbelief.”

21. Professor Joanna Grisinger Lecture 6.6-How are criminal laws enforced? Juries.  

22. Grisinger Lecture 6.6. 

Bibliography:

Grisinger, Joanna, Lectures 6.2, 6.3, 6.6.

Illinois Attorney General - ATTORNEY GENERAL RAOUL’S POLICE REFORM, CRIMINAL JUSTICE INITIATIVES PASSED BY GENERAL ASSEMBLY, ag.state.il.us/pressroom/2021_01/20210113.html. 

“In Pop Culture, There Are No Bad Police Shootings.” The Washington Post, WP Company, www.washingtonpost.com/sf/opinions/2016/10/26/in-pop-culture-there-are-no-bad-police-shootings/. 

Story by Barbara Bradley Hagerty. “An Epidemic of Disbelief.” The Atlantic, Atlantic Media Company, 24 July 2019, www.theatlantic.com/magazine/archive/2019/08/an-epidemic-of-disbelief/592807/.