In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
The American Bar Association regularly published reports on the state of the legal field and how the field may be improved. While these reports do not focus extensively on the criminal justice system, the ABA’s 2016 Report on the Future of Legal Services did make some recommendations on how more equitably dispense justice. One of the ABA’s suggestions is an often-repeated plea: give public defenders the resources they need to ensure that attorneys have reasonable caseloads.
At this point in time, the plight of public defenders is well-known. The ABA has even been a major partner in the Missouri Project, which found that public defenders in Missouri were not spending enough time on their cases to provide adequate legal assistance to defendants. This was found in all situations, from homicide cases to violations of probation.
While I whole-heartedly agree that public defenders need more funding, many critics, the ABA included, rarely seek to address problems on the other side of the “v”. Prosecutors have a truly staggering amount of power in the criminal justice system. From their discretion to charge a person at all, to their control over plea bargains, to the state’s control over the very evidence used to convict a person, prosecutors have the ability to shape a criminal proceeding in a way that defendants simply cannot match.
The amount of power that the prosecution has is arguably a problem in and of itself. However, I find that the bigger issue is prosecutors are rarely held accountable for misusing the power given to them. In the 1976 case, Imbler v. Pachtman, the Supreme Court held that prosecutors had absolute immunity from civil lawsuits when they are involved in “initiating and pursuing a criminal prosecution. This applies in even the most egregious cases of prosecutorial misconduct. Even when a prosecutor is not “initiating or pursuing” a conviction, they maintain qualified immunity from civil suits for investigatory and administrative work. The broad cover of immunity enjoyed by the prosecution makes it nearly impossible to hold individual prosecutors liable for the wrongs they commit.
One might argue that internal disciplinary mechanism are enough to punish prosecutors who act inappropriately. However, various surveys suggest otherwise. In a report on prosecutorial oversight, the Innocence Project listed a number of studies that showed that prosecutors are almost never disciplined for their unintentional error or purposeful wrongdoing. One particularly disturbing surveyreviewed 201 cases in which a judge found that federal prosecutors had violated a law or ethical rule. In only one of these cases was a prosecutor sanctioned.
This realization is indeed alarming, but it should not be surprising. Prosecutors individually and DA’s offices as a whole have virtually no incentive to behave in strict compliance with their legal and ethical obligations. Individual prosecutors know that there is a minuscule chance of being held civilly liable for their actions. And their superiors simply will not punish unethical behavior (at least regarding defendants’ rights). On the contrary, prosecutors are often structurally incentivized to attain convictions, not necessarily justice. For example, at least one DA’s office in Colorado gave prosecutors bonuses for successful convictions. While monetizing convictions is far from a common practice, it does illustrate the wider issue of prosecutors being incentivized to send people to jail instead of to seek justice.
It may seem that the primary purpose of this discussion is to demonize prosecutors. This is not my intention. I do not believe that prosecutors as a whole are a herd of elephants trampling on the rights of defendants. Most prosecutors are probably just trying to achieve what they think is the best result for society. But therein lies the problem. If a prosecutor truly feels that a certain result is in the best interest of society—is the good and moral outcome—they may feel justified in circumventing ethical boundaries. A piece of Brady evidence may come up missing, a lead on a different suspect may not be followed, or an informant with a history of giving false testimony may be put on the stand. And all of this may be done in an effort to convict the person who the prosecutor is convinced committed the crime. So the ends justify the means.
Except that in our judicial system, they don’t. People are supposed to be innocent until they are objectively proven guilty. A conviction attained through an improper manipulation of the facts is a wrongful conviction, even if the defendant is, in fact, guilty of the crime.
I believe that the ABA’s 2016 report should have included recommendations on how to better monitor prosecutors’ behavior, and appropriately discipline prosecutorial misconduct. One popular suggestion for which I advocate is an open-file system. As it stands, defense counsel has to rely on the prosecution to turn over Brady evidence. An open-file system would give defendants access to all evidence that the prosecution has, allowing them to determine what evidence is relevant to their exculpation.
Additionally, I would recommend that certain instances of prosecutorial misconduct have a mandatory punishment. I realize that prosecutors are human, and therefore they will make mistakes. I can sympathize with the fact that prosecutors, just like public defenders, are severely overworked. However, people’s liberty is at stake when prosecutors make an error or are purposely deceitful.
Currently, our justice system gives prosecutors extensive powers as they seek a conviction or secure a plea deal. I am not arguing the merit of these powers. I do argue that without consequences for the misuse of that power, prosecutors have little incentive to behave ethically, and defendants have little recourse when they are made victims of prosecutorial misconduct.