One year ago, Michael Brown was shot dead by a police officer in Ferguson, Missouri. Since then, the nation has debated the justice system more feverishly than any other period in recent memory. Most of the scrutiny has rightly fallen upon the police, which is where the justice system meets the people viscerally and sometimes fatally.
But Officer Darren Wilson wasn't the only key player in the Ferguson drama: St. Louis County prosecutor Robert McCulloch -- with his shocking decision not to press for an indictment of Wilson, but merely to present the evidence to the grand jury -- was another. And yet there has been little public pressure to address the power of prosecutors, in the wake of Ferguson and its litany of successors.
Too many are abusing that power.
Suppressing evidence, coddling informants, even outright lying are some of the instances of prosecutorial misconduct that sent away nearly half the 1,621 people convicted for crimes they didn’t commit since 1989, according to the University of Michigan Law School’s National Registry of Exonerations. These are only the cases we know about, and they are surely only a fraction of the wrongly convicted. Even so, the figure is stunning—especially when you consider that 115 of them were people condemned to die.
The punishment for bad prosecutorial misconduct is virtually nil. In a 2011 report on 707 such cases, only six prosecutors were disciplined. Almost all still have their licenses, and are still practicing law.
Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.
Over the next several weeks, The Daily Beast will dive into this blight on the judicial system. We’ll look at how money, race, and politics distort the judicial system, and incentivize even decent attorneys to misbehave. We’ll talk with some of the leading critics of the system, liberal and conservative. And we’ll hear some of the most appalling tales of prosecutors run amok—in many cases, involving attorneys still on the job, unsanctioned and undeterred.
The prosecutorial role is an unusual one in the American judicial system. Usually, attorneys have one client, and their responsibility is to advocate solely for that client’s interests. Prosecutors, however, have a dual responsibility. On the one hand, they are the government’s lawyers, charged with making the state’s best case against the accused. On the other hand, prosecutors are also part of the judicial system, and they are meant not simply to secure convictions, but to pursue justice.
At times, those two obligations conflict. When a prosecutor discovers potentially exculpatory evidence, he or she must disclose it—as confirmed by the Supreme Court in the 1963 Brady decision. No civil lawyer would do this; nor would any criminal defense lawyer. But prosecutors are uniquely cast in the dual roles of advocates and what some have called “ministers of justice.”
In theory, anyway. In practice, numerous factors cause many prosecutors to tilt toward convictions. Perhaps the best known recent example is the corruption trial of former Senator Ted Stevens, which resulted in his conviction, and in which the government was later found to have withheld exculpatory evidence. By that time it was too late for Stevens, who had already died.
America is the only country in the world in which many prosecutors are elected—and many of them run as being “tough on crime.” The disciplinary commission that sanctioned Durham County, North Carolina District Attorney Michael Nifong—prosecutor of the Duke lacross team on false rape charges—noted his upcoming primary election as a motivating factor for his misconduct. The pressure to produce wins has led to a “win-at-all-costs” mentality in some offices, especially when voters reward such behavior.
Perhaps most importantly, prosecutors are granted immunity for most kinds of misconduct. It’s easy to see the reasons for this policy: otherwise, every well-heeled convict would sue, clogging the system and making it impossible for prosecutors to do their jobs. At the same time, that immunity is so absolute that prosecutors simply get off scot-free, even when misconduct is established. Even worse, most states lack any meaningful oversight of prosecutors: no commissions, no review boards, nothing.
Then there’s race. Ninety-five percent of elected prosecutors are white, and two-thirds of the states that elect prosecutors have no black ones. Yet 40 percent of the incarcerated population is black and one in three black men will have spent time in prison. How is the justice system supposed to be seen as fair when this crucial element of it is almost exclusively run by white people?
Despite the racial divide, the response to prosecutorial misconduct and overzealousness has been striking in its bipartisan nature.
In some ways, the issue of prosecutorial misconduct is an ideal opportunity for Republicans and Democrats to work together. Republicans wary of overzealous state action become concerned “when district attorneys attack,” to quote the National Review. Conservatives also place a high value on public trust in the justice system, and are thus keen to root out bad prosecutors who may undermine it.
Judge Alex Kozinski, no bleeding heart liberal, recently called the problem an “epidemic,” excoriated a California prosecutor for trying to maintain a conviction (in probably the only appellate court recording to qualify as “viral” on YouTube), and proposed a host of major reforms.
Liberals, meanwhile, may see overzealous prosecutors not as anomalies within an otherwise just system, but as examples of an inherently unjustice system doing little to protect the vulnerable, especially people of color. Liberals tend to value fairness and compassion over the strong administration of justice, even when some guilty people may go free as a result. Thus they, too, are wary of prosecutorial misconduct, albeit for very different reasons from conservatives.
It’s odd, then, that so little has been done. For example, efforts to create an oversight commission in New York have failed two years in a row, and there is nothing on the congressional agenda.
That’s not for lack of proposed reforms, which The Daily Beast will explore in detail in the coming weeks. These include proposals to:
- Create oversight boards, like those that already exist for judges, to monitor, censure, and report misconduct;
- Allow the wrongly convicted to sue for monetary relief—including from the prosecutor’s office, if misconduct is established;
- Reduce prosecutorial immunity to a qualified, rather than absolute, form. In particular, open prosecutors to be tried for perjury if they have lied under oath;
- Eliminate the election of prosecutors, which distorts the incentives they face;
- Expand Brady requirements with model rules which states could adopt as they see fit. These could include an “open file rule,” in which all information about a case must be shared with defense counsel; and
- Investigate the racial disparity among prosecutors and treat it as a civil rights issue.
Perhaps the time for such reform is, at last, at hand. The seemingly unlimited use of police violence against people of color, and the failure of prosecutors to take action against it, has led to a crisis of confidence in the criminal justice system at large—one amplified by the racial disparities within that very system.
Is it possible that the left’s concern with racial justice, and the right’s concern with law and order, might converge in this area where reform is so desperately needed? Will there be progress at last?
Editor's Note: This story has been updated.