Can “Progressive” Prosecutors Bring Justice to Victims of Police Violence?

When Wesley Bell was elected as St. Louis County’s first Black prosecutor two years ago, he ousted a tough-on-crime, old-school incumbent who had held on to his seat mostly unchallenged for nearly three decades. The police killing of 18-year-old Michael Brown in Ferguson, Missouri, had rocked the region and made Bob McCulloch, Bell’s predecessor, a pariah and a symbol of prosecutors’ long-standing failure to hold police accountable. For months, thousands of people took to the streets to demand justice for Brown, inspiring a nationwide movement that, among other battles, sought to transform the country’s racist justice system by electing reform-minded prosecutors.

Bell rode that momentum into office, promising to overhaul the way justice was administered in a place that had become synonymous with police abuse and local governments funding themselves by criminalizing poor residents through a Dickensian system of fines, fees, and jail. Bell never promised to reopen the investigation into Brown’s killing by police officer Darren Wilson — which had ended without charges after a much criticized grand jury process — but that is what many in the region expected. Then last month, as a new wave of protests upended the country, Bell announced that he had quietly reinvestigated the case. And that, once again, there would be no justice for Michael Brown.

“There are some people who don’t like the decision I made, and my response to them is, I don’t like the decision that I made.”

“This is one of the most difficult things I have had to do as an elected official,” Bell said at a surprise press conference just days shy of the sixth anniversary of Brown’s August 2014 killing. “Although this case represents one of the most significant moments in St. Louis’s history, the question for this office was a simple one: Could we prove, beyond a reasonable doubt, that when Darren Wilson shot Michael Brown, he committed murder or manslaughter under Missouri law? After an independent and in-depth review of the evidence, we cannot prove that he did.”

Bell noted that the investigation did not exonerate Wilson, arguing that “the question of whether we can prove a case at trial is different than clearing him of any and all wrongdoing.”

“If there was more we could do, we absolutely would do it,” Bell told me in an interview. “There are some people who don’t like the decision I made, and my response to them is, I don’t like the decision that I made. But I took an oath to follow the law, and in a case like this, as tough as it is, we have to follow those rules of ethics, we have to follow that law, even when it doesn’t taste good.”

The announcement reopened a wound that has never healed in St. Louis. Brown’s mother, Lezley McSpadden, argued that Bell’s team, who did not speak with Wilson again and relied on evidence from the original investigation and a subsequent one by the Department of Justice, did not do “a proper investigation.” With the exception of a few small protests, anger and frustration at the decision were drowned out as the country reeled from the coronavirus pandemic and ongoing cries for justice for George Floyd, Breonna Taylor, and countless other Black men and women killed by police after Brown. The police shooting of Jacob Blake in Kenosha, Wisconsin, on Sunday has once again reignited debate over the enormous legal protections afforded to officers who use deadly force.

But as the movement to turn over prosecutors’ offices to those pledging to transform the criminal justice system continued to claim victories, including in the city of St. Louis, and as a progressive Ferguson activist unseated a veteran U.S. congressman whose family had represented the district for half a century, advocates who had hoped Bell’s election would bring closure for Brown’s family were left disillusioned. Bell’s decision not to prosecute Wilson, they warned, exposed the limits of an office that is both inherently political and bound by laws that are stacked in favor of police. And it raised questions about what it meant for a prosecutor to be progressive and how those who campaigned on progressive promises could be held accountable after they were elected.

Pictures of Michael Brown flank his casket during his funeral on Aug. 25, 2014, at Friendly Temple Missionary Baptist Church in St. Louis.

“It was a betrayal,” said Justin Hansford, a St. Louis activist, law professor, and director of the Thurgood Marshall Civil Rights Center at Howard University. “There were a lot of people who spent a lot of time and energy supporting Bell specifically because they expected him to at the very least reopen the case and let the family have their day in court, so that the facts could be put forth in a trial, and so that everyone could see them. It would have given us a sense of transparency.”

“A lot of these prosecutors who have been saying they are progressive, they really have to have something to show for it,” he added, citing the “mixed feelings” of many in the justice reform movement about Democratic vice presidential nominee Kamala Harris, who has also claimed she was a progressive prosecutor. “You can’t let people just get away with that rhetoric without backing it up.”

“His top campaign rallying cry was that he heard the cries of the protesters and that he was going to go into that place and deliver justice and he didn’t do that,” echoed Johnetta Elzie, a Ferguson protester. “I don’t know if he got scared, I just think the system — that’s what it does, no matter if the person inside it is allegedly progressive or not.”

“It was a tough day for folks doing this work because so much of this work was inspired by the demand for justice for Mike Brown.”

“I know there are people who believe in progressive prosecutors,” added Elzie. “I just haven’t seen it in action. I have never seen anyone actually do it. I’ve never seen it in St. Louis, that’s for sure.”

Others noted their disappointment but defended Bell’s reform efforts in the county, and argued against abandoning a fight for prosecutors’ offices that have outsize influence over countless lives — a fight that has had a significant impact on the number of people going to jail even as it has failed to put an end to police violence.

“It was a tough day for folks doing this work because so much of this work was inspired by the demand for justice for Mike Brown,” Scott Roberts, the senior director of criminal justice campaigns at Color of Change, a racial justice group that backed the campaigns of a number of reformist prosecutors, including Bell. “This is a reality check if you thought that electing prosecutors who were more reform-oriented was going to address this massive problem in our country of racial bias in our justice system, and just the general over-policing and over-incarceration of Black communities.”

“But this is not slowing us down in terms of strategy,” he added. “Even if you took police accountability off the table, there’s still myriad reasons to focus on the prosecutor’s office if your community is being impacted by over-incarceration.”

The Limits of the Law

There is little question Bell overhauled St. Louis county’s prosecutorial practices. Hours into his post, Bell announced a barrage of changes to the office. He ordered his staff to end cash bail requests for misdemeanors and stop prosecuting the possession of small quantities of marijuana and the failure to pay child support. He encouraged the use of summonses over warrants for many offenses. He barred prosecutors from overcharging defendants to win pleas, threatening witnesses to force them to give testimony, and imposing further conditions on those who failed to appear in court unless they were flight risks. He promised he would never seek the death penalty and fired the lead prosecutor in Brown’s case.

In the year and a half since, Bell has slashed the number of people jailed over low-level offenses by nearly 30 percent and established a conviction integrity unit that recently led to the release of a man wrongfully incarcerated for 24 years. Bell also set up a community engagement unit to explain to the public what his office could and could not do, and he has overseen an expansion of diversion programs and partnered with dozens of community groups to offer alternatives to incarceration. “Even if you’re disappointed, you don’t want to go back to Bob McCulloch,” said Roberts, noting that Color of Change is pushing Bell to pursue bolder bail reform and further reduce the number of people who are jailed in St. Louis County.

As he announced no new charges against Wilson, Bell noted that he had also changed the ways in which prosecutors investigate police use of force, by assigning those cases to an independent team that is “walled-off” from the rest of the office to avoid bias and conflict. And he said his office would start recording all grand jury proceedings in homicide cases, “so that all potential defendants get the same protections that Darren Wilson received.” His office would also provide support, including resources for trauma and mental health care, to the families of victims of police — something that Brown’s mother has advocated.

“We know there’s still more to do,” Bell told me. “We’re going to take some losses, there’s going to be times when we don’t get the outcome that we want, but I think we have to measure success by all of the families that we are helping and all of the individuals that we are helping that would otherwise have seen the inside of a jail.”

Changes like these, in St. Louis and elsewhere, were largely made possible after the Ferguson protests exposed the ways in which prosecutorial practices drive mass incarceration and encourage the kind of aggressive policing that too often results in police violence — a dynamic that was laid bare in a scathing Justice Department review of St. Louis County’s courts and police departments.

But if some prosecutors elected since then have made strides in curtailing incarceration by declining to prosecute certain offenses or offering alternatives to jail, the other half of what voters hoped they would do — hold police accountable — has proven more arduous.

Protesters stage a “die in” inside Chesterfield Mall on Nov. 28, 2014, in Chesterfield, Mo.

As The Intercept has reported, police unions have fiercely fought the efforts of reformist prosecutors’ efforts, perhaps nowhere more than in St. Louis city, Bell’s next-door jurisdiction. But Bell’s decision not to charge Wilson also reveals a reality about police accountability that advocates are coming to terms with: that the law itself is usually on the side of police.

“This case also exposes the limits of the law,” Bell said at the press conference.

“There are a lot of people who see me, and they think, well, now we can do whatever we want, even in these tough cases, we can just do whatever. And obviously that’s just not the case,” he told me later. “I think what makes a progressive prosecutor is that we understand that we have more tools in the tool belt than just incarceration.”

Bell warned that cutting corners was not only unethical but risked backfiring. “Oftentimes, when we don’t follow the law, Black and brown and poor people tend to be on the business end of those abuses,” he said. “We can’t change that because it’s a defendant that we don’t like. We have to be consistent, that’s what law and justice is about.”

In fact, Bell’s decision was criticized both by those who had hoped for a different outcome and those who thought reopening a settled case was a political move. Bell did little to hide that he had hoped to be able to bring charges, earning him accusations of seeking not the truth so much as what he “wanted the truth to be.”

“I won’t go so far as to say this is definitely what I wanted to do,” Bell told me. “At the end of the day, we have to follow the facts, but wanting to bring some type of closure to a family who has lost a loved one tragically — of course that’s something that we endeavor to do and want to do, on an emotional level.”

The limits of the law in guaranteeing justice to the victims of police violence are a reality across the country and particularly in Missouri, Bell noted, where there is a lower standard for proving self-defense and the burden is on prosecutors to disprove a defendant’s self-defense claim. Missouri also doesn’t require an officer to stop chasing a suspect in the event an alleged crime was committed, even if that suspect no longer poses a threat. “So even if the officer is no longer in danger, or the community is not in danger, the officer is still allowed to chase that individual, even when it’s not safe to do so,” said Bell, declining to discuss the specifics of how this provision related to the events leading to Brown’s killing. “There is a reasonable nuance that could be added to the law that would disincentivize officers from chasing when it’s not safe. … Where there’s no longer a threat, you could just simply wait for backup.”

But critics argued that if the laws are the problem, Bell could have made a bolder case that they should be changed.

“I do agree with him that there are laws on the books that really make it difficult to find police to be accountable in most places, and especially in Missouri,” said Hansford, the activist and law professor. “But he needs to do a better job of speaking out against that instead of just throwing his hands up.”

“Being a prosecutor is a political job,” Hansford added. “They do have the ability to do more; it’s not just staying neutral, it’s not just following the law, it’s not something that’s just a mechanical job, because if so, why would they need to have elected prosecutors? They have the power to be more progressive.”

Criminal charges against police officers who have killed unarmed people have remained extremely rare even as an increasing number of incidents have been caught on video. Where prosecutors have pressed charges against officers — as Baltimore State’s Attorney Marilyn Mosby did after Freddie Gray’s death in custody in 2015 — the resulting trials have exposed just how difficult it is for police to be held criminally accountable for their conduct. In Gray’s case, one trial ended in a mistrial, three officers were acquitted, and prosecutors dropped charges against the remaining officers. But losing at trial is not the only risk prosecutors face when they charge police officers with crimes, noted Hansford. “They can lose an election, they can face a lot of political backlash, it’s going to make it more difficult for them to win their cases,” he said. “There’s a lot more at stake for them politically than there is legally.”

Marilyn Mosby, Baltimore state’s attorney, speaks to the media on May 1, 2015, in Baltimore.

Recent killings have exposed just how often the law favors law enforcement, and how political the decision to indict can be. In Minneapolis, Derek Chauvin, the white officer who killed Floyd by kneeling on his neck for eight minutes, was not charged until four days later, after large protests had spread across the country. But even then, the charges were for third-degree murder and manslaughter, which implied Chauvin did not have the intent to kill Floyd. It took several more days of protests and widespread condemnation for Gov. Tim Walz to transfer the case to the state’s attorney general, Keith Ellison, who ultimately raised the charge to unintentional second-degree murder.

Meanwhile, in Kentucky, the killing of Breonna Taylor, a 26-year-old who was shot at least eight times by officers who broke into her apartment while she was asleep in bed, shined a spotlight on the countless legal protections afforded to police. In Taylor’s case, police were executing a “no-knock” warrant in connection to an investigation into two men believed to be selling drugs at a different location. None of the officers were arrested or charged but Taylor’s boyfriend, Kenneth Walker, who thought someone was breaking into the apartment and fired in self-defense with his legally licensed gun, was charged with attempted murder of a police officer. The charge against Walker was ultimately dismissed in May after mass protests and public pressure. While legal experts have argued that the officers could be charged under Kentucky law, the legal protections afforded to law enforcement in the state have so far shielded them from accountability.

“I wish everyone received this kind of care and consideration and due process before charges and pretrial caging.”

Taylor’s case has also renewed scrutiny of “qualified immunity,” a civil doctrine that protects law enforcement from accountability beyond criminal prosecution even in cases where there is no question that officers used excessive force.

This summer, as calls for justice for Taylor grew louder, Reps. Ayanna Pressley and Justin Amash introduced legislation to end qualified immunity, followed by Sens. Edward Markey, Elizabeth Warren, and Bernie Sanders, and state-level battles to limit the practice have intensified amid a wave of police reforms prompted by the ongoing protests.

But the police shooting of Jacob Blake, a Wisconsin man who was left paralyzed from the waist down after police shot him in the back multiple times in front of his children, once again exposed the protections officers are regularly afforded. As public defender and justice advocate Scott Hechinger noted, the Wisconsin Department of Justice lays out significant due process for an attempted murder committed by police, including a 30-day investigation — even though in Blake’s case, the incident was clearly caught on camera. Most defendants accused of similar crimes are never afforded such care, even when less evidence is available.

“Anyone else would already be caged, pretrial, facing decades,” wrote Hechinger, who argued not for swifter action against officers but for the same protections to be afforded to everyone else. “To be clear: I wish everyone received this kind of care and consideration and due process before charges and pretrial caging.”

“There are real limitations to our justice system. It’s not designed to get justice for Black folks. It’s not designed to hold police officers accountable,” said Roberts, of Color of Change. “When we elect someone, even if they have the best of intentions, it’s limited how much change they can bring,”

Rather than focus on prosecutorial races alone, he added, advocates were now taking on the broader system, focusing on judicial elections, law enforcement unions, and efforts to defund police and pass better laws.

“There’s a big focus on transforming the system to a place beyond the point where we can only hold someone accountable after the fact to a point where these injustices are less likely to happen,” Roberts said. “These things go in tandem: The more we can change some of these laws that make it hard to hold police accountable, the more we can limit the size and scope of policing, the more some of these reform-oriented prosecutors will be able to use the power that they do have.”

Justice in the Time of Abolition

If in many ways the calls for justice following the killings of George Floyd and Breonna Taylor have echoed those that followed the killings of Michael Brown and Freddie Gray, the conversation, on the streets and in organizing spaces, has also fundamentally changed since the Ferguson protests.

Even as they continue to propel the movement to elect progressive prosecutors, many critics of police now understand it as an inevitably limited effort that should exist only in connection to a broader, bolder vision for justice. People are still asking for justice for Floyd and Brown, but they are also asking for the defunding of police and the closing of jails, like St. Louis city’s “workhouse.”

“After the Ferguson protests, we really walked away with very little structural change at all,” said Elzie, the Ferguson activist. “I hope in the next six years we will have something to show for all this work.”

St. Louis County Prosecuting Attorney Wesley Bell, center, is surrounded by local police chiefs before a news conference on June 24, 2019.

There is also growing recognition that movements like those to elect progressive prosecutors were just a first step, and that even where they succeeded, those efforts remain a work in progress. “There were a number of progressive prosecutors who were elected, and it’s a very important thing to go back and revisit, ‘What did you guys actually do?’” noted Hansford.

“The job of the prosecutor is still to lock people up, and now people on the ground are abolitionists, more so than they were a few years ago,” he added. “So the job of getting involved in prosecutorial electoral politics is always a sort of compromise.”

There seemed to be a paradox, Hansford conceded, in the fact that people so invested in the elimination of police and prisons would feel so let down by a prosecutor’s decision not to charge someone. “A lot of us are abolitionists now, and here we are, disappointed that there isn’t jail time for somebody,” he said. “It was really one of the things that kept me from being an abolitionist for the longest time: the desire to see Darren Wilson go to jail.”

But the confirmation that Wilson would face no legal consequences for killing Brown could still serve as a prompt to imagine a kind of justice larger than that allowed for within the limits of a flawed system.

“At the beginning of the protest movement, that was the whole point, we knew that they weren’t going to bring charges, so justice for Mike Brown had to look like something else, and we were pushing for reforms, and pushing for all these different things, knowing that it would be hard to get justice for Mike Brown in the sense of Darren Wilson going to jail,” said Hansford. “I think the same tension is still there: Are there other ways to get some sort of justice, to honor his memory, besides a prosecution?”