Prosecutorial Accountability 2.0

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.