Prosecutorial accountability 2.0.

• Author: Green, Bruce
• Position: II. Prosecutorial Accountability 2.0 B. B. The Regulatory Shift 4. Prosecutorial Self- Regulation through Conclusion, with footnotes, p. 83-116

4. Prosecutorial Self-Regulation

   In recent years, the U.S. Department of Justice has responded to regulatory reform efforts through the exercise of self-restraint in various areas. To blunt reform efforts following the Ted Stevens case, the Department revised internal policy on discovery and appointed an official responsible for training and self-regulation specifically with respect to this subject. (184) Additionally, when bar associations and allied organizations challenged federal prosecutors' practice of pressuring corporations to disclose attorney-client privileged information to obtain prosecutorial leniency in cases of corporate wrongdoing and legislators contemplated curtailing prosecutorial authority, the Department responded by revising its policy to restrict the practice. (185) Most recently, as noted, the Department responded to an adverse state court opinion by resolving not to seek ineffective assistance of counsel waivers anywhere in the country. (186)

   State and local prosecutors similarly have responded to regulatory pressures by adopting self-restraint, (187) or even by accepting or supporting external restraint. (188) Some state prosecutors' offices have adopted best practices manuals and enhanced discovery training. (189) It appears that some are acknowledging the need to strengthen internal discipline. (190)

   Perhaps the most significant internal prosecutorial reform at the state level, responding in part to the shifting attitudes toward prosecutorial accountability, is the advent of conviction integrity units (CIUs) and the direction of their efforts at preventing, not merely correcting, wrongful convictions. (191) The first unit, established in Dallas, Texas, by District Attorney Craig Watkins, was a highly publicized success story. (192) As of March 2015, eighteen jurisdictions had followed suit. (193) At least in Manhattan, the CIU is not limited to reviewing past convictions but also examines causes of, and remedies for, wrongful convictions. (194) Others have the similar potential to develop robust practices and procedures to prevent wrongful convictions. (195) The effectiveness of CIUs is still an open question, but in establishing them, and particularly in assigning them to develop internal procedures to make prosecutions more reliable, prosecutors implicitly acknowledge the need to address aspects of prosecutorial conduct systemically.

   3. FIVE SOCIAL CONDITIONS, AND ONE CATALYTIC MEDIUM, FOR THE NEW PROSECUTORIAL ACCOUNTABILITY

   There is probably no single reason why public and judicial attitudes toward prosecutors' conduct are evolving. But we suggest that five interrelated social conditions help account for the changes, sparked by a catalyst: information technology. The first Section in this Part discusses the relevant social conditions and their relative importance, while the following Section describes the significance of information technology as the medium that broadened public understanding and facilitated a reform movement directed at prosecutorial accountability.

   1. Five Conditions for the Evolution of Prosecutorial Accountability

   The persistence of prosecutorial misconduct is a sine qua non for the new prosecutorial accountability, but we do not agree with those who posit that there is greater public and judicial concern because there is more prosecutorial wrongdoing. We identify four additional sets of conditions that help explain the rhetorical and regulatory shifts: the broader public awakening to injustices in the criminal justice system; understandings, in particular, regarding wrongful convictions, including the responsibility of prosecutors' conduct; expanded academic attention to prosecutors' conduct, drawing particularly on social science insights into systemic deficiencies; and, most importantly, a burgeoning criminal justice reform movement that has included prosecutorial misconduct on its agenda.

1. Prosecutorial Misconduct and Its Perceived Increase

   The most fundamental condition for the evolution of prosecutorial accountability is the persistence of prosecutorial misconduct--actual and perceived. Without misconduct, there would be no need for prosecutorial accountability. And at least occasional misconduct is inevitable, no matter how narrowly the concept is defined, because prosecutors are human and imperfect. While one might wish that all prosecutors had impeccable character, the selection process is imperfect and character is variable. Plus, if one defines misconduct broadly, it will occur even among those prosecutors with renowned integrity.

   Some scholars and commentators might speculate that there is now more discussion of prosecutorial misconduct simply because there is more misconduct. Bennett Gershman, for one, attributed "[t]he increasing incidence of misconduct by prosecutors ... to the post-9/11 legal and political culture of fear, secrecy and repression in which the power of law enforcement, especially of prosecutors, has become much more dominant and aggressive." (196)

   For several reasons, we join those who doubt that prosecutorial misconduct is on the rise. (197) First, even before 2001, some argued that prosecutorial misconduct was pervasive and that misconduct that came to light was the tip of the iceberg. (198) We see no evidence that misconduct was less frequent then. Second, the cultures of individual prosecutors' offices, of which there are many, are slow and difficult to change and so it seems unlikely that there was a sea change in prosecutorial cultures on the local, state, and federal levels following the terrorist attacks on September 11, 2001. Third, it appears that, insofar as some prosecutors have made conscious efforts to change office cultures, the contemporary movement has been toward promoting greater compliance with professional and legal standards. (199)

   It may be true that prosecutors' aggressive conduct or perceived aggressiveness has increased since the early 1990s as a consequence of changes in criminal law, procedure, policy, and practice, such as the targeting of drug crimes and terrorism, the Federal Sentencing Guidelines, pretrial asset forfeitures, grand jury subpoenas to attorneys, or the Anti-Terrorism Effective Death Penalty Act (AEDPA), (200) Nevertheless, there is little data to suggest that there has been increasing prosecutorial misconduct because of these or other laws and practices. (201) More likely, as others have noted with regard to police shootings, (202) it is not that there are more instances of prosecutorial misconduct; it is that there is more media coverage of it.

   Finally, even if prosecutorial misconduct were on the rise, this alone would not account for the increasing public and judicial concern. Although some of the concern is directed at the prevalence of misconduct--as in the depiction of an "epidemic" of discovery violations--much is directed more broadly at the exercise of discretion in prosecution. In the grand jury investigations of police killings in Ferguson and Staten Island, the prosecution was criticized because prosecutors treated law enforcement suspects differently than other citizens. (203) These cases were not troubling because they were representative of how prosecutors behave, but just the opposite: they were portrayed as departures from how prosecutors ordinarily decide whether to initiate charges. (204) Thus, public scrutiny reflects a broader conception of prosecutorial misconduct.

2. The Great Criminal Justice Awakening

   The shifting public and judicial perceptions of prosecutors' conduct and the changes in prosecutorial regulation are taking place against the background of, and as part of, a broader public disenchantment with the criminal process. The public awakening crosses the political spectrum. (205)

   Perhaps in part because of decreasing crime rates, there is less preoccupation with fighting wars on crime and greater interest in how crime is fought. (206) Particularly in the last five years, public opinion has changed dramatically as a result of an understanding of fault lines in the criminal justice system, including racial disparities in policing, (207) police violence, (208) over-criminalization, (209) the reduction of judicial sentencing discretion, (210) collateral consequences of criminal convictions, (211) and mass incarceration. (212) Remarkably, in his second term, President Obama and the Justice Department took up the charge of criminal justice reform. (213)

   Also noteworthy is the public demand for prosecutorial accountability in cases of police shootings. The killings of Michael Brown in Ferguson, Eric Garner in Staten Island, Freddie Gray in Baltimore, Walter Scott in South Carolina, Philando Castile in Minneapolis, and Alton Sterling in Baton Rouge challenge not only racially discriminatory policing, but also perceived unfair and unequal treatment by prosecutors in investigating police violence. (214) As noted, a popular sentiment has been that prosecutors in the Brown and Garner cases improperly exercised charging discretion by treating the police officers more leniently than similarly situated low-income and minority individuals, presumably because of bias. (215) By contrast, the indictment of police officers in Baltimore has been characterized as a bold step forward. (216) Growing public indignation led to the "Black Lives Matter" movement in 2014. (217) That movement not only focuses upon police shootings of unarmed black men, but also encompasses all of the ways in which the criminal justice system fails and disproportionately punishes communities of color. (218)

   Although prosecutors are not directly responsible for all the perceived problems of the criminal justice system, their conduct is implicated in most. (219) For example, over-incarceration is largely attributable to prosecutors' advocacy for harsher sentencing legislation, to their charging and plea bargaining policies, and to their individual charging and plea bargaining...