On Sunday, the New York Times ran an editorial about prosecutorial misconduct. The paper called the problem “rampant,” particularly with respect to what are known as “Brady violations,” or the requirement to disclose favorable evidence to defense counsel. The editorial came on the heels of a well-publicized, blistering opinion by Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, that not only excoriated prosecutors in a murder case the court was considering, but went on to lambaste prosecutors across the country, and the courts and bar associations that fail to hold them accountable. We appear to now be headed for an overdue, full-blown “national discussion.”
The failures of the courts, bar associations, and professional groups to hold misbehaving prosecutors accountable is a problem unto itself—a problem I explored in a long-form piece last spring. But in nearly all of America, local prosecutors are elected. You might think that even if the profession fails to adequately police itself, voters could punish excessive misconduct at the polls. And indeed, that’s starting to happen. Several years ago, voters in Colorado rejected a couple sitting judges for retention because of their roles in the wrongful conviction of Timothy Masters when they were prosecutors. And the recent defeat of Brooklyn District Attorney Charles Hynes came after damning investigations of his record by media outlets like ProPublica, and an subsequent campaign by criminal justice activists to oust him from office.
But these are relatively new developments. And so far, they’re fairly isolated. There are a number of reasons for this. The main reason overly aggressive prosecutors aren’t punished at the polls is that crime only really motivates voters when they’re in fear of it. Public opinion may be shifting on our incarceration rate, prisons, juvenile justice, the drug war, and even some policing issues, but not to the point where a significant number of people will actually vote on those issues. Put another way, we tend to get politically motivated by what is happening to us, not what isn’t. We notice when crime is up. When we aren’t afraid of criminals, we vote on the issues that are immediately affecting us. Consequently, prosecutors have lots of professional incentive to rack up convictions, but little to fear for going too far. (Another consequence of this is a ratchet effect when it comes to crime policy.)
This isn’t to say that all prosecutors are corrupt, or that all of them engage in misconduct. It is to say that all of the incentives point in the same direction. Ask yourself this: Let’s say you’re a fair-minded, conscientious prosecutor. You only charge those you both are certain are guilty, and for whom you have more than enough evidence to convict. But you’re running for reelection. When you’re writing up your campaign literature, are you going to boast about the times you didn’t charge someone with a crime because there wasn’t sufficient evidence, or because you didn’t believe doing so was in the interest of justice? In most jurisdictions, that won’t win you many votes. The wiser strategy is to boast about all the bad guys you’ve put in prison.
As I noted earlier, polling data suggests public opinion is starting to shift on some of these issues. But any real voter accountability is going to be held up by a more fundamental information problem. If you want to see how many times an appeals court has cited an incumbent DA or his or her staff for misconduct, you’re going to have a difficult time. Even when courts find misconduct—even egregious misconduct—they rarely name the offending prosecutor. In fact, prosecutors’ names rarely appear on court decisions at all. Likewise, most state bar investigations of prosecutor misconduct are also kept confidential. That may seem sensible, given that the allegations may turn out to be baseless. But that of course stands in stark contrast to the fact that the people prosecutors accuse of crimes aren’t afforded the same courtesy. Even when a prosecutor is found to have committed misconduct and is sanctioned in some way, some states still keep the entire affair confidential. You could make a convincing argument that prosecutors are better protected from wrongful misconduct allegations than citizens are from wrongful convictions.
At the federal level, the Department of Justice usually conceals internal investigations of federal prosecutors. As a journalist, this is frustrating because it makes it difficult to suss out repeat offenders. In the end, we’re reliant on professional organizations to sanction their own, and there’s ample evidence that these organizations just aren’t up to the task.
Now for some good news: A nonprofit reform group called the Center for Prosecutor Integrity (CPI) has just launched a new registry of prosecutor misconduct. It’s searchable by name, case, date, and several other variables. It also looks to provide some interesting data breaking down misconduct by infraction, region, and so on. So far, the database only includes 200 recent incidents from federal cases, but CPI “plans to expand the Registry to include all known cases of prosecutorial misconduct.” They’re currently looking for partners in individual states to help populate the database with new cases.
It’s clear at this point that the courts, state bars, and federal government have little interest in bringing any transparency to this problem. If it’s going to happen, it will probably need to come from private actors. The new registry seems like a good start.