Prosecutorial Accountability 2.0

67 Pages Posted: 27 Jan 2016 Last revised: 28 Nov 2017

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Ellen Yaroshefsky

Hofstra University - Maurice A. Deane School of Law

Date Written: January 26, 2016

Abstract

This article examines prosecutors’ accountability for professional misconduct. It begins by identifying a significant evolution since the Warren Court era both in the rhetoric regarding prosecutorial misconduct and in how prosecutors are regulated. Prior to the information age, the public and the judiciary largely accepted prosecutors’ contention that prosecutorial misconduct should be narrowly conceived as intentional lawbreaking, and that isolated and aberrational instances of misconduct could be addressed by disciplining rogue prosecutors. In contrast, in the shift to “Prosecutorial Accountability 2.0,” increasing segments of the public and judiciary now accept that prosecutorial misconduct is systemic; it calls for systemic remedies; and it includes negligent wrongdoing, abuses of discretion, and failures of supervision.

The article rejects suggestions that the rhetorical and regulatory changes occurred because prosecutorial misconduct has become more prevalent. It identifies other social causes: a public awakening to criminal justice problems for which prosecutors bear responsibility; revelations, in particular, regarding the role of prosecutorial misconduct in wrongful conviction cases; new social science understandings about social and psychological predicates for prosecutorial wrongdoing; and reform organizations’ inclusion of systemic prosecutorial reform on their agenda. The article shows how the internet has served as the essential catalyst for shifting public and judicial attitudes. The article concludes by predicting that the old and new approaches to prosecutorial accountability will coexist into the foreseeable future, and that the implications will include both a more active judicial role in critiquing and overseeing prosecutors and increased self-regulation by prosecutors’ offices.

Suggested Citation

Green, Bruce A. and Yaroshefsky, Ellen, Prosecutorial Accountability 2.0 (January 26, 2016). Notre Dame Law Review, Vol. 51, 2016, Fordham Law Legal Studies Research Paper No. 2722791, Cardozo Legal Studies Research Paper No. 480, Hofstra Univ. Legal Studies Research Paper No. 2017-07, Available at SSRN: https://ssrn.com/abstract=2722791 or http://dx.doi.org/10.2139/ssrn.2722791

Bruce A. Green (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

Ellen Yaroshefsky

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5882 (Phone)

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