Prosecutors are the most
powerful players in the American criminal justice system. Their decisions —
like whom to charge with a crime, and what sentence to seek — have profound
consequences.
So why is it so hard to keep
them from breaking the law or violating the Constitution?
The short answer is that they
are almost never held
accountable for misconduct, even when it results in wrongful
convictions. It is time for a new approach to ending this behavior: federal
oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and
constitutional rights. There is a successful model for this in the Justice
Department’s monitoring of police departments with histories of misconduct.
Among the most serious
prosecutorial violations is the withholding of evidence that could help a
defendant prove his or her innocence or get a reduced sentence — a practice so
widespread that one federal judge called it an “epidemic.” Under
the 1963 landmark Supreme Court case Brady v. Maryland, prosecutors are required to
turn over any exculpatory evidence to a defendant that could materially affect
a verdict or sentence. Yet in many district attorneys’ offices, the Brady rule
is considered nothing more than a suggestion, with prosecutors routinely
holding back such evidence to win their cases.
Nowhere is this situation
worse than in Louisiana, where prosecutors seem to believe they are unconstrained
by the Constitution.
This month, the Supreme Court
will consider the latest challenge to prosecutorial misconduct in Louisiana in
the case of David Brown, who was one of five men charged in the 1999 murder of
a prison guard. Mr. Brown said he did not commit the murder, but he was
convicted and sentenced to death anyway. Only later did his lawyers discover
that prosecutors had withheld the transcript of an interview with another prisoner
directly implicating two other men — and only those men — in the murder.
This is about as blatant a
Brady violation as can be found, and the judge who presided over Mr. Brown’s
trial agreed, throwing out his death penalty and ordering a new sentencing. But
the Louisiana Supreme Court reversed that decision, ruling that the new evidence
would not have made a difference in the jury’s sentence.
David Brown’s case is a good
example of how every part of the justice system bears some responsibility for
not fighting prosecutorial misconduct. State courts often fail to hold
prosecutors accountable, even when their wrongdoing is clear. Professional ethics
boards rarely discipline them. And individual prosecutors
are protected from civil lawsuits, while criminal punishment is virtually
unheard of. Money damages levied against a prosecutor’s office could deter some
misconduct, but the Supreme Court has made it extremely difficult for wrongfully convicted
citizens to win such claims.
This maddening situation has
long resisted a solution. What would make good sense is to have the federal
government step in to monitor some of the worst actors, increasing the chance
of catching misconduct before it ruins peoples’ lives. The Justice Department
is already authorized to do this by a 1994 federal law
prohibiting any “pattern or practice of conduct by law
enforcement officers” that deprives a person of legal or constitutional rights.
The department has used this
power to monitor police departments in Los Angeles, New Orleans, Detroit and Seattle, among other municipalities
with a history of brutality, wrongful arrests, shootings of unarmed civilians
and other illegal or unconstitutional practices. For the most part, the results
have been positive. Since prosecutors are also
“law enforcement officers,” there is no reason they and their offices should be
immune from federal oversight.
Of course, many district
attorneys’ offices will balk at being put under a federal microscope. But
nothing else has worked to prevent misconduct by prosecutors, and the Justice
Department is uniquely equipped to ferret out the worst actors and expose their
repeated disregard for the law and the Constitution.
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