33 Pages Posted: 10 Apr 2016 Last revised: 16 Aug 2017
Date Written: 2016
Prosecutors, whom we trust to carry out the demanding and essential business of presenting the People’s case against alleged law-breakers, are free to commit misconduct with impunity. They suffer no disciplinary repercussions for their misdeeds. The only adverse consequence facing an erring prosecutor is the extremely rare prospect of having a conviction overturned due to his misconduct. Even then the prosecutor will not be subject to any sanction: no citation for contempt, no suspension of license, no civil liability, no fine, not so much as a censure.
In an earlier article entitled The Prosecutor Prince, I proposed the creation of an independent commission empowered to investigate claims of alleged prosecutorial misconduct, and mete out discipline should the claims be warranted. As set forth in that article, the commission would be modeled after California’s Judicial Panel, which has proven effective in dealing with instances of judicial misconduct.
The purpose of this current article is not to once again make the case that prosecutorial misconduct is prevalent and represents a stain on the American justice system — that purpose has been thoroughly accomplished in the earlier article and by countless others. The two-fold purpose of this article is to revise the earlier proposal to make it more fiscally and politically viable, and to use the findings from our recently completed twenty-five-year survey of prosecutorial misconduct as support for the revised proposal.
Keywords: prosecutorial misconduct, prosecutors, discipline, Prosecutorial Review Panel
Suggested Citation: Suggested Citation
Caldwell, Harry M., Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution (2016). 2017 U. Ill. L. Rev. 1455 (2017); Pepperdine University Legal Studies Research Paper No. 10. Available at SSRN: https://ssrn.com/abstract=2761252