'Justice for All': The Necessity of New Prosecutorial Accountability Measures

43 Pages Posted: 12 Mar 2020

See all articles by Jennifer Lee

Jennifer Lee

The University of Mississippi School of Law

Date Written: February 7, 2020


“We all hold dear to the time-honored notion that ‘no one is above the law.’ Truly horrendous prosecutors who have put innocent people in jail should not be an exception.”
~The Honorable Frederic Block

Prosecutorial misconduct is a widespread issue in the American criminal justice system today. Unethical behavior by prosecutors has been a consistent, recurring issue for decades and only continues to worsen over time. Perhaps of most concern, prosecutorial misconduct often results in the wrongful convictions of innocent people. The inequity may take on many forms, including, but not limited to, withholding exculpatory evidence, encouraging false testimony, relying on phony forensic experts, and overstating the strength of the evidence during plea negotiations.

The primary problem this Article addresses is how to hold prosecutors accountable for such misconduct. This paradox is complicated by current laws that serve as barriers to prosecutorial accountability. Furthermore, Section 1983 provides prosecutors with absolute immunity, closing off a wrongly-convicted individual’s right to recourse. Such protection cultivates an atmosphere of prosecutorial infallibility. Though lawyers and judges alike have a duty to report instances of professional misconduct, such reporting rarely ever occurs. Defense attorneys remain reluctant to report prosecutors for unethical conduct for fear of hindering professional working relationships, and judges are reluctant to report prosecutors because they wish to appear “tough on crime” to voters. Thus, the accountability system is inherently flawed: state bar associations rely on judges and practitioners to report misconduct, but there is no mechanism to compel such complaints.

This Article sets forth the most recent statistics on prosecutorial misconduct. Data trends suggest that no prior solutions effectively combat the problem of controlling errant prosecutors. In response, this Article suggests an innovative, two-part solution. First, each state should adopt a version of the recent Connecticut bill, which mandates data collection by prosecutors. Additionally, each state attorney general should create internal discovery policies that guide the operations of all prosecutor’s offices in the jurisdiction, and assemble an independent prosecutorial review panel.

Mandating the collection of various procedural data on matters such as arrests, prison time, and plea bargains creates a valuable metric by which to assess ethics and help voters make informed decisions during prosecutorial elections. Tracking behavior and placing prosecutors under the care of the Attorney General also instills a heightened sense of professional accountability. By placing the responsibility of creating internal discovery policies upon the attorney general, states gain the ability to conduct a centralized system of control and maintain uniformity and fairness in criminal matters. Independent prosecutorial review panels expedite the complaint process because panel members are able to focus exclusively on prosecutors, unlike state bar associations tasked with investigating and disciplining every licensed attorney in the state. Expedient review combats time-delay issues common with bar complaints and streamlines detection of misconduct.

Keywords: prosecutorial misconduct, prosecutorial accountability, new legislation, professional ethics, wrongful convictions

Suggested Citation

Lee, Jennifer, 'Justice for All': The Necessity of New Prosecutorial Accountability Measures (February 7, 2020). Available at SSRN: https://ssrn.com/abstract=3534139 or http://dx.doi.org/10.2139/ssrn.3534139

Jennifer Lee (Contact Author)

The University of Mississippi School of Law

Oxford, MS
United States

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