Using Deterrence Theory to Promote Prosecutorial Accountability

Abstract

Prosecutors — the most powerful actors in the American criminal justice system — largely avoid accountability for misconduct. To promote fairer processes and results, prosecutors must be held to account for violations of defendants’ due process and fair trial rights and the related ethical rules that help protect those rights. An important thread of scholarly work makes clear the need for effective methods of ensuring prosecutorial accountability. Yet, empirical evidence consistently suggests that prosecutors almost universally evade accountability for infringing upon defendants’ rights. No method seems to address the problem effectually, whether it be internal or external professional discipline, criminal liability, civil liability, electoral accountability, or an even broader conception of accountability — case-specific remedies provided to criminal defendants who fell victim to prosecutorial misconduct. While many have concluded that these modes of accountability have not been up to the task, it appears that few critiques explicitly draw on a reservoir of powerful explanatory and potentially curative tools hidden in plain sight: deterrence theory.

The central theory underlying our criminal justice system’s methods of punishing lawbreakers provides crucial insights into how we might also promote prosecutorial accountability. This Article draws upon the deterrence theory of criminal justice to demonstrate ways in which current approaches to prosecutorial accountability fail to fulfill the key deterrent values of certainty and swiftness (celerity). In both design and operation, current approaches overlook the central importance of ensuring potential wrongdoers are on notice about sanctions for ethical and legal breaches, and instead deal with misconduct after-the-fact in an ad hoc manner.

Evaluating existing modes of accountability from a deterrence perspective proves useful in three ways. First, it provides a theoretical account of the status quo’s failure to hold prosecutors accountable. Regimes of prosecutorial accountability remain somewhat undertheorized, and their numerosity, design, and construction have resulted in both confusion and a disquieting accountability deficit. Deterrence is a useful perspective from which to understand the system’s breakdown and identify paths to correct the course. Second, deterrence principles provide helpful language to describe modes of accountability and bridge the gaps between them. Someone studying the professional disciplinary regime, for example, may not be able to easily draw upon what happens in the electoral accountability regime. Deterrence can help fill the void. Third, deterrence offers a normative framework that can advance the discourse about solutions to address the system’s failure.

Keywords: Prosecutorial Accountability, Prosecutorial Misconduct, Brady v. Maryland, Professional Discipline, Deterrence

JEL Classification: K14, K42