Last week, USA Today published the results of a six-month investigation into misconduct by America’s federal prosecutors. The investigation turned up what Pace University law professor Bennett Gershman called a pattern of “serious, glaring misconduct.” Reporters Brad Heath and Kevin McCoy documented 201 cases in which federal prosecutors were chastised by federal judges for serious ethical breaches, ranging from withholding important exculpatory evidence to lying in court to making incriminating but improper remarks in front of juries.
The list is by no means comprehensive, and doesn’t claim to be. I checked the paper’s website for examples of egregious misconduct reported here at Reason: U.S. Attorney Mary Beth Buchanan’s politically-charged prosecution of Pennsylvania doctor Bernard Rottschaefer; Assistant U.S. Attorney Brett Grayson’s outrageous persecution of the Colomb family in Louisiana; and the bogus Mann Act charges brought against Mississippi heart surgeon, Dr. Roger Wiener. None are among the cases in USA Today’s database. The paper should be lauded for its groundbreaking investigation, but as the reporters themselves acknowledge, they’ve really only scratched the surface. (The investigation also only looked at federal cases, which comprise just a tiny portion of the country’s total criminal prosecutions.)
When the Bush administration drew criticism for firing seven U.S. attorneys a few years ago, much of the outrage was directed at the administration’s perceived politicization of the Justice Department. But that was really only a symptom of a more fundamentally broken system. The deeper problem is that we have a federal criminal justice system that can be so easily manipulated in the first place. The number of federal laws reaches well into the thousands, and it's growing. Many are so broadly written they allow prosecutors to ring just about anyone they please up on federal charges. This creates a system driven by politics, not justice. It makes criminals out of all of us, making actual enforcement of the law arbitrary and corruptible. Worse, every incentive for a federal prosecutor pushes in the direction of winning convictions, with little if any sanction for crossing ethical and legal boundaries in the process. It's a system that’s not only ripe for abuse, but that actually rewards it.
Of the 201 cases USA Today reviewed in which a judge publicly reprimanded a prosecutor, the paper found just one in which a prosecutor "was barred even temporarily from practicing law for misconduct." The Justice Department refused to tell the paper about which, if any, of the cases resulted in internal discipline taken against the offending prosecutors. Rather appallingly, DOJ cited the need to protect the prosecutors' privacy. Never mind that they’re public servants who have been reprimanded by a federal judge for abusing their power. Not to mention that said power is among the most serious we afford to a government official. Prosecutors have the power to take away a citizens’ freedom. Even in cases that don’t result in a conviction, a federal indictment or even investigation can bankrupt the target of the investigation. The idea that prosecutors who abuse that power should be escape public scrutiny out of concern for their privacy is not only preposterous, it's another symptom of a system with misplaced priorities.
USA Today’s finding of little to no sanction for misbehaving prosecutors is consistent with other studies. According to an Innocence Project study of 75 DNA exonerations, prosecutorial misconduct factored into just under half of those wrongful convictions. In none of those cases did the offending prosecutor face any serious sanction. A 2006 Yale Law Journal look at violations of the Brady rule, which requires prosecutors to turn over exculpatory evidence to defense attorneys, found "[a] prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies." A 2009 brief filed by the Cato Institute, the American Civil Liberties Union, and the National Association of Criminal Defense Attorneys in the U.S. Supreme Court case Pottawattamie v. McGhee noted that studies of wrongful convictions in California, New York, and Chicago all found that though prosecutorial misconduct contributed to a sizable majority of cases that sent innocent people to prison in those states, the misbehaving prosecutors were rarely if ever sanctioned.
During oral arguments in that case, a majority of Supreme Court justices seemed to indicate that they may finally be ready to put a dent in absolute prosecutorial immunity, the complete protection (which has no basis in the U.S. Constitution and no common law tradition) we give prosecutors from lawsuits from the people they prosecute, even in cases where a prosecutor’s gross negligence contributed to a wrongful conviction. At issue in Pottawattamie was whether absolute immunity should protect prosecutors even in cases where they intentionally manufacture evidence that causes a wrongful conviction. That case was settled before the Court could issue a decision, but the Court will revisit the question next term, in the case Connick v. Thompson. It isn’t difficult to see how shielding prosecutors from liability even in an obvious frame job creates some some pretty twisted incentives.
The position of U.S. Attorney is often seen as a stepping stone to a political career, which makes those who occupy the office notorious publicity hounds. They’re known to taint jury pools by calling high-profile press conferences in which they convict suspects in public before stepping foot in the courtroom. And woe to the defendant who uses the press to fight back. Consider what happened to Siobhan Reynolds, the pain patient activist who often uses similar media tactics to combat what she perceives to be the federal government’s wrongful targeting of physicians who prescribe opioid painkillers. When Reynolds mounted a public relations campaign in response to Assistant U.S. Attorney Tonya Treadway’s prosecution of Kansas physician Steven Schneider and his wife, Treadway turned her sights on Reynolds. Treadway launched a grand jury investigation of Reynolds and her patient organization, ordering Reynolds to turn over a trove of documents related to her advocacy on behalf of the Schneiders and other physicians and patients.
The only way to address this issue is to pierce the cone of infallibility we put around prosecutors. There’s a presumption that because they’re public servants, prosecutors should be given the benefit of the doubt, that even grievous mistakes should be assumed to have been unintentional, or that because they’re pursuing a goal most of us consider to be in the public interest—putting bad guys behind bars—even intentional infractions should be lightly sanctioned, or overlooked entirely.
But public choice theory teaches us that public servants act in their own interest in the same way private sector workers do. There’s nothing transformative about working in a DA’s office as opposed to, say, a white shoe law firm. You don’t shed self-interest to become purely noble and altruistic once you’re sworn into office. If anything, prosecutors should be given more scrutiny and oversight than other members of the legal profession. Private lawyers at best can influence courts and government officials to move money around. Prosecutors put people in prison and, in some cases, send defendants to their deaths. When they cheat, there ought to be consequences.