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Excerpted from: Mildred Scott, Prosecutorial Misconduct: Shouldn't the Punishment Fit the Crime? , 60 South Texas Law Review 325 (2019) (307 Footnotes) (Full Document)


mildredscottWhat has become ironic within our justice system is the belief that punishment corrects and deters unwanted behavior, while at the same time granting prosecutors absolute immunity, regardless of the egregious or illegal nature of their acts.

Our criminal justice system functions under the premise and purpose of punishing those who commit illegal acts to deter this type of behavior and rehabilitate those who have committed these acts.

Prosecutorial misconduct is not a new topic and not one that is misunderstood at all. Extensive studies and scholarship exist on the resulting problems when unethical prosecutors have unchecked authority, coupled with no consequences for their actions. Again, this problem and the far- reaching damage that results, are not new and are not even debated. What is debated is whether prosecutors should continue to enjoy the privilege of immunity from any liability for their actions.

To fully understand the scope of the problem and the sense of urgency we all should have in correcting it, we must look to history. We must examine the historical origins of a system that can breed such bad actors, who act with an entitlement and confidence that their misconduct and biased application of the law is accepted and condoned. Next, we must look at the magnitude of the harm caused by these rogue prosecutors being able to act with impunity, and the reality that this conduct has gone on for far too long and nothing done to date has worked as a deterrent. With this understanding, there should be no hesitation in finally implementing civil and criminal punishment for prosecutors who intentionally and willfully commit misconduct.

This Article will discuss the purpose and aims of the criminal justice system and role of the prosecutor, examine the historical reality of laws that were unequal when written and as applied, examine what conduct is considered prosecutorial misconduct and the prevalence of these behaviors, outline the physical and financial manifestations of the harm caused by this misconduct, explain the law as it currently applies to prosecutors and the immunity they enjoy and finally propose solutions to finally hold rogue prosecutors accountable.

A variety of purposes or goals have been stated over the years for the criminal justice system and the individual state departments of correction. Although the specifics may vary slightly, the overarching purpose and mission has been to function as a mechanism of deterrence and "to promote the correction and rehabilitation of offenders." Further, there is a secondary goal to "promote the correction and rehabilitation of offenders, within a scheme that safeguards them against excessive, disproportionate or arbitrary punishment." The emphasis, at least as expressed in the Model Penal Code, has not been on sheer punishment, but to use punishment primarily as a tool to rehabilitate. To further express this mission to all involved, the inscription on the wall inside the Department of Justice building reads, "The United States wins its point whenever justice is done its citizens in the courts." Winning at all costs is not the goal. This objective to rehabilitate citizens in a fair and equitable manner has been expressed as far back as Thomas Jefferson. Jefferson wrote, "The most sacred of the duties of government [is] to do equal and impartial justice to all its citizens." In seeking to do equal and impartial justice, the individual with the most autonomous power to do justice, or injustice, is the prosecutor.

The prosecutor's role, as defined by the American Bar Association Standards for Criminal Justice, is that of "an administrator of justice, a zealous advocate, and an officer of the court." They go on to describe the prosecutor as one who is to "seek justice within the bounds of the law, not merely to convict." Their overarching objective is articulated as "promoting an accurate result through a fair process" as outlined in the Model Rules of Professional Conduct (MRPC).

It is important to note that the prosecutor is said to serve the public. The general public and public interest are the prosecutor's client, not government agencies, law enforcement bodies or personnel, or even the victims of crimes. In addition, the prosecutor is to function as a problem-solver and community advocate, with a duty to remedy inadequacies or injustices in the system once they are identified.

Since the prosecutor's client, to whom they owe a duty, is the general public, they must be able to function in this role in an impartial manner, so that they truly represent the interests of their entire constituency. To do so, the prosecutor must be free from implicit bias, overt bias, and prejudice of all manners (racial, gender, sexual orientation, disability, age, religion and even socioeconomic status). They must also "strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor's authority." Still, they must go one step further and work to eliminate historically persistent biases.

However, these rules of professional conduct are merely aspirational. It is clearly stated in the rules that they are not intended to be used as a "basis for the imposition of professional discipline," or "to create a standard of care for civil liability" Since these rules do not subject the prosecutor to any penalties if violated, they essentially function in practice as merely suggestions.

[. . .]

It has been argued that the uptick in exonerations over the past decade or so is a direct result of a greater level of accountability in prosecutorial offices across the country. Some have instituted post-conviction or "second-look" procedures and even "special review units" that review"questionable convictions." If this causal connection is true, great. But it is not enough.

First, the prosecutor's office should hold themselves to a higher standard and continue to pursue these secondary review processes. However, a reactionary process of only going back and looking over the prosecutor's shoulder does not solve the problem. It can help unwind some of the harm and right the wrongs, but it does not stop the prosecutorial predatory behavior. The second prong is punishment. A prosecutor who intentionally and willfully commits misconduct must be subject to punishment. The solution is as simple as the basic premise behind the justice system. You, first, stop the harm. Then, make the perpetrator pay restitution. Lastly, prevent future harm. If punishment is believed to be an effective deterrent, then prosecutors should not be immune to punishment.

A remark made by Senator Trumbull during the 39th Congress is as true today as it was when it was made over a hundred and fifty years ago:

Congress is bound to see that freedom is in fact secured to every person throughout the land; he must be fully protected in all his rights of person and property; and any legislation or any public sentiment which deprived any human being in the land of those great rights of liberty will be in defiance of the Constitution; and if the states and local authorities, by legislation or otherwise, deny those rights, it is incumbent on us to see that they are secured.

The impact of Trumbull's comment is two-fold. First, it is unjustifiable to say that every person must be fully protected in all his rights, but then give a prosecutor full immunity and authority to violate the rights of any person they choose. Next, if turning a blind eye to prosecutorial misconduct and gross constitutional rights abuses is the path a jurisdiction chooses to take, the federal government has an obligation to step in and correct the problem. Each state, every city, every small town and municipality, has an obligation to root out those among them who deprive citizens of their rights. But, if these jurisdictions choose complacency or denial and do not correct the systemic problem of prosecutorial misconduct, the federal government has not only the authority, but the obligation, to once again, correct the problem of state-sanctioned discrimination.

As James Baldwin stated so clearly, "not everything that is faced can be changed, but nothing can be changed until it is faced." We owe a responsibility to our profession to correct this horrendous wrong and root out this historical remnant, which is embedded like a cancer in the justice system.

Global Real Estate Department, Hewlett Packard Enterprise., J.D. cum laude, South Texas College of Law-Houston, B.A., Political Science and Journalism, summa cum laude, University of Houston

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