Both still face long odds, but two major criminal-justice reform bills are moving forward in two of the country’s most populous states.
First in New York, a first-of-its-kind law would establish a panel to oversee the state’s prosecutors. The board would have subpoena power but could only recommend sanctions. From a New York Times editorial endorsing the bill:
Since this sort of behavior so often happens behind closed doors, it can be hard to root out and harder to remedy, thanks to Supreme Court rulings that have immunized individual prosecutors, and in most cases their entire offices, from being sued. Even when prosecutors are caught red-handed, they almost never face consequences. In the rare cases when they do, any discipline is usually handled in secret.
In short, there’s no reliable system for holding prosecutors accountable for their misconduct, and they certainly can’t be entrusted with policing themselves.
The good news is that there’s a solution. New York lawmakers in June overwhelmingly passed a bill to establish an independent, publicly accountable commission that would investigate prosecutorial misconduct. It will be the first commission of its kind in the nation if Gov. Andrew Cuomo signs the bill into law, which he has until Monday night to do.
The commission would have the power to investigate complaints against prosecutors and to compel them to testify and turn over documents. It wouldn’t be able to punish them directly, but it could issue warnings and recommend sanctions, including in extreme cases that the governor remove a prosecutor from office. The commission would consist of 11 members — two appointed by the governor, three by the state’s chief judge and the remainder by legislative leaders of both parties — and it would release the results of its investigations in an annual report.
Gov. Andrew Cuomo is expected to sign the bill, but some say it may lose a court challenge from prosecutors, because it might violate separation of powers clauses in the state constitution.
Of all 50 states, California has enacted perhaps the most stringent legislative barriers to police accountability. Not only do state laws protect misconduct findings against officers from the public, but the law also keeps that information out of the hands of prosecutors who need to trust the police to ensure justice. A prosecutor cannot put an officer on the witness stand that she knows has a history of lying. But if that prosecutor cannot easily get access to the officer’s disciplinary record, as California law currently ensures, then she may be relying on bad police information or, even worse, prosecuting an innocent person on the word of a dishonest officer. As both a matter of principle and practicality, the government should do its best to maintain the honesty and integrity of its police officers.
There is currently a bill before the California Legislature that would ease the burden for the prosecutors and the public to know whether the officers in their communities are trustworthy. SB1421 would require police departments to release information about, inter alia, sustained findings of dishonesty in the course of criminal cases and other instances of police misconduct. This bill would also require police departments to release information about serious uses of force, including officer-involved shootings, to increase transparency.
The California bill, alas, has much longer odds of becoming law. In the past, police unions (and, on other issues, the deputy district attorneys’ union and the district attorneys’ association) have scuttled common-sense efforts for reform.