Can an Ethical Person be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform
Lawton P. Cummings
University of Maryland Francis King Carey School of Law; Washington and Lee University - School of Law; George Washington University - Law School
Cardozo Law Review, Vol. 31, No. 6, p. 2130, 2010
GWU Law School Public Law Research
GWU Legal Studies Research
U of Maryland Legal Studies Research Paper No. 2010-33
This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging 'moral disengagement' in prosecutors. 'Moral disengagement' refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct. Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement can be affected by the social structures within which the person operates. Legal scholars have applied moral disengagement theory on a social systems level to identify conditions structured into the criminal justice system that encourage moral disengagement in capital juries and in mental heath professionals who are involved in capital cases.
This Article employs social cognition research on moral disengagement to argue that the criminal justice system encourages moral disengagement in prosecutors by providing moral justification for the behavior (the pursuit of justice), diffusing and displacing responsibility (through the division of the truth-finding function among multiple actors), and degrading defendants (dehumanizing them through lack of contact and derogatory labels, and blaming them for their plight). While these moral disengagement mechanisms provide some social benefit by allowing individuals to serve as prosecutors free of inhibitory self-sanctions, they co-exist with other systemic characteristics that may act in concert with the mechanisms to produce detrimental effects. While encouraging prosecutors to morally disengage from self-sanctions for harmful conduct towards defendants, prosecutors are afforded almost unfettered discretion in deciding who to prosecute, for what charges, whether to engage in plea discussions, and whether to seek the death penalty. In addition, prosecutors operate in an environment where they are motivated to obtain convictions and appear 'hard on crime.' This Article argues that such conditions provide the 'perfect storm' for encouraging prosecutors to stretch the bounds of their ethical duties to defendants.
Keywords: prosecutorial misconduct, moral disengagement, social cognitive psychology
JEL Classification: K10, K14, K40, K41, K42working papers series
Date posted: September 22, 2009 ; Last revised: August 20, 2010
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