This week the Wisconsin Department of Justice is set to deliver its report about the white Madison police officer Matt Kenny’s March 6 shooting of Tony Robinson Jr., an unarmed, biracial 19-year-old who ended up dead. The findings mark a procedural turning point in the latest high-profile police shooting since Michael Brown’s death in Ferguson, Mo., made the rest of the country sit up and once again pay attention to racial bias and police-community relations. But for Wisconsin, the state DOJ’s investigation is yet another test of AB 409, the first state law of its kind to mandate outside investigations of fatal police use-of-force incidents. Despite their growing popularity, it’s as yet unclear whether independent investigations can address the root of the problem of police violence against black people in the U.S.
AB 409, which was signed into law last April, requires investigators with the Division of Criminal Investigations in the Wisconsin Department of Justice to handle separate inquiries in the wake of fatal police interactions to determine whether any laws were broken during the incident. Neither of the two investigators assigned to a case are allowed to be employed by the same law enforcement agency under investigation. The department’s findings are delivered to the local district attorney, who then decides whether to file criminal charges against the officer in question.
Since the law’s passage, Wisconsin has had nearly a dozen opportunities to put its law to the test, according to Chris Ahmuty, director of the ACLU of Wisconsin. And those cases have illuminated the fraught, complex dynamics of what’s otherwise a well-intentioned policy to introduce credibility into a process that’s so often weighted toward police officers, and against civilians.
That doesn’t mean vague, broad calls for more independent investigations have slowed. Back in January, the U.S. conference of Mayors released a report calling for "independent, transparent, thorough investigations." This action item was the fourth in a seven-point plan (PDF) to improve police-community relations in the country. Early last month, just four days before Robinson was killed, President Obama’s Task Force on 21st Century Policing released its interim report (PDF). Among its top recommendations were calls for police agencies to adopt policies that "mandate the use of external and independent criminal investigations" in the wake of fatal incidents.
"We have a great opportunity, coming out of some great conflict and tragedy, to really transform how we think about community-law-enforcement relations so that everybody feels safer and our law enforcement officers feel, rather than being embattled, feel fully supported," President Obama said when he unveiled the report. "We need to seize that opportunity."
Indeed, others have already been following Wisconsin’s lead. In New Jersey, Assemblyman Reed Gusciora introduced AB 3756 last October, with language that mimics Wisconsin’s. "At least with an independent investigation, you can’t say at the end of the day it was an inside cover up," Gusciora told NJ Advance Media last fall.
Connecticut Chief State’s Attorney Kevin Kane told Connecticut lawmakers who were mulling similar legislation last week that he’d amended department policy to mandate that independent prosecutors review all use-of-force incidents that end in fatalities in his state, the Hartford Courant reported. Investigations into fatal police incidents, once handled by local state’s attorneys, will now be handled by prosecutors from outside districts. The recent policy change, which went into effect last week, obviates the need for policy mandating something very similar, Kane told lawmakers.
In California, Assemblyman Kevin McCarty introduced a bill earlier this year calling for an independent review panel to handle an inquiry into any fatal police shooting. The final language of the bill should be made public this week, an aide in McCarty’s office told Colorlines.
But amidst the flurry of activity around this particular police accountability mechanism, it’s easy to lose sight of the finer policy details that determine whether independent investigations can even accomplish their fundamental aims.
The Wisconsin law and the multiple bodies calling for similar legislation haven’t as yet adequately accounted for the tensions inherent to independent investigation policies, say experts. At their root, says Michael Scott, director of the Albany, N.Y.-based Center for Problem-Oriented Policing, the central objectives of independent investigations are at odds with each other.
On one hand, in order for independent investigations to be sound, "it’s critical that the entire investigation be and be perceived to be unbiased and fair," Scott says. On the other, there are only so many people who are trained in the "fairly sophisticated techniques" of homicide investigations to be able to competently handle such an inquiry. It turns out that police make up the vast majority of people with the technical training and expertise to conduct such investigations, Scott points out.
Wisconsin has already seen this play out in the case of Dontre Hamilton. On April 30, less than a week after WI AB 409 became law last year, a white Milwaukee police officer, Christopher Manney, shot and killed Hamilton, a black man. Hamilton became the first test case of AB 409. Despite the fact that the law calls for the Wisconsin Department of Justice’s Division of Criminal Investigations to handle such probes, the two state investigators assigned to the case were former detectives who spent decades in the Milwaukee Police Department. At the time, both were collecting upwards of $4,000 in monthly pensions from those jobs, Milwaukee’s ABC affiliate WISN reported last fall. The Milwaukee DA eventually declined to file criminal charges against Manney.
There are some ways around this tension, such as corralling a multi-agency group of investigators who take turns examining each other, Scott says. The current law has general protections in place to determine independence, but it still doesn’t include a standard to protect against conflicts of interest such as those in the Hamilton case, says ACLU’s Ahmuty. What’s more, absent standards to delineate between investigations that use best practices and those which are slapdash, the hazard is that even a multi-agency strategy could create a state consultancy market of sorts where police agencies know who to call when they want to have a quick and dirty inquiry into a shooting, says Ahmuty.
"The trouble is there is not one accepted standard for how to investigate a use of force incident," Ahmuty says. "But Wisconsin doesn’t have any standards at all."
And at the end of the day, the state investigators’ report gets delivered to the DA, who has the last say in whether to file criminal charges. Such a mechanism doesn’t account for the fact that DAs and police officers must work closely together on a daily basis. "An independent investigation doesn’t do anything to address that," Ahmuty says.
And even under the best circumstances of impartiality and independence, "the law is so stacked in favor of police officers who are under investigation for possible criminal violations that we rarely get charges," Ahmuty says. That, more than even the illusion of independence, is what undermines public confidence in police officers. In black and Latino communities where police-public relationships are "well, by definition adversarial," according to Scott, perceptions of independence only go so far.
"There will be some people who think everybody in the field of law enforcement are essentially part of a fraternity and they lack the objectivity and independence to investigate one another," Scott says.
Independent investigations conducted by other law enforcement officers don’t mean much to Brandi Grayson, who leads the Madison-based Young Gifted and Black Coalition (YGB). The coalition, which was formed last November after a St. Louis grand jury failed to indict Darren Wilson for killing Michael Brown, has been at the forefront of the young black resistance to police violence in Wisconsin."It’s like me killing someone and my family gets to determine what the consequences of that are," she says. "The [state] DOJ represents the same system."
Grayson also considers the criminal justice system an outgrowth of the nation’s long history with slavery, the Black Codes, and Jim Crow. "In Madison, it’s more of the legacy of it being a sundown city," Grayson says, a reference to an era when black folks had to clear out of certain cities by nightfall lest they want to be "beat, killed or arrested."
In 2012, Dane County, which includes Madison, arrested black adults at a rate eight times than of whites, according to a report released by the Wisconsin Council on Children and Families (PDF). In 2012, new prison placement rates for black adults in Dane County were 15 times that of placement rates for white adults, itself much worse than the rest of Wisconsin, where black adults in 2012 were placed in prison at nearly 10 times the rate of white adults. "Historically, for us," Grayson says, "we can’t trust the law. It wasn’t created to protect us black and brown people, but to control us."
YGB has focused on demanding sweeping structural reforms to her state’s criminal justice system in the wake of Robinson’s death. In an open letter sent to Madison Police Chief Michael Koval days after Robinson’s death, YGB called for the immediate release of all those incarcerated for crimes of poverty. According to YGB, "[Forty five] percent of people who are incarcerated are incarcerated because they have not paid bills of $1,000 or less. …Jails should not function as poor houses."
Wisconsin Rep. Chris Taylor, who co-sponsored AB 409, has said she’s interested in amendments to the law. In a report by the Public News Service Taylor acknowledged that early implementation of the law was unsatisfactory but said that she remains confident the law "will work" in the Robinson case, "There’s no excuse now."
At the end of the day, says Scott, "Police leaders would be well-advised not to think that you can solve this problem with independent investigations alone."