Over at Reason, Radley Balko asks a very difficult question. Why don’t prosecutors who go bad get punished? After giving a laundry list of misdeeds, constrained largely by space, where affirmative prosecutorial misconduct was the cause of innocent people being convicted and imprisoned, Radley concludes:
Something is wrong here. It may well be true that the prosecutors noted above represent a tiny minority of those who serve or have served in the position. But whatever the number of “bad apples,” our criminal justice and political systems seem unconcerned about weeding them out. Instead, they’re often rewarded and promoted, despite long records of incompetence and misconduct. In fact, in the sense that misconduct can help win convictions, such prosecutors are often rewarded because of it.
As shown in his examples, the prosecutors not only skated on their misconduct, but went on to become judges or re-elected to office. He urges reform:
Be it through state bar association actions, judicial investigations and discipline, or legislation creating some other means of oversight, bad and incompetent prosecutors need to be held to account. When a prosecutor perpetrates misconduct or demonstrates incompetence that sends an innocent person to jail, it’s a regrettable but understandable product of the fact that any large system is going to have bad actors. But when that prosecutor remains free to go on prosecuting other cases, with no repercussions, the very legitimacy of the criminal justice system is called into question.Of course, it’s not for lack of knowing that impropriety occurs, and the extent of it is largely unknown and unknowable, since it’s the rare case where the “legal fact” of conviction will ultimately be shown wrong, and the curtain subsequently pulled back on the impropriety in the backroom of the prosecutors’ office. But the point is that even when we do know, conclusively, that a flagrant violation of law and ethics occurred, beyond a doubt, the upshot is that there is no price to pay.
Radley looks at it from an incentive perspective, that when there is no penalty for getting caught red-handed, there is no reason for the prosecutor of dubious ethics to avoid engaging in shenanigans. If undetected, the defendant gets convicted, which is the prosecutor’s goal, whether to get another notch in his gun or because he believes that it’s the proper outcome, evidence notwithstanding. And if caught, the worst that will happen is the defendant walks free and the prosecutor goes on to enjoy a career as a respected judge. Where’s the downside?
Over the past few days, I’ve pondered Radley’s question in the hope of coming up with a meaningful answer. Realizing that there is no single answer that covers every instance, some being sui generis, others matters of friendship and personal protection, and still others the product of the weighing of the greater evil, there seems to be one overarching explanation for why prosecutors are largely immune from repercussions for their affirmative impropriety.
At the core of the legal system is a fiction. We all know it to be a fiction, but without it the system would be incapable of functioning, and so in the interest of maintaining a system to resolve disputes that doesn’t involve swords or pistols at twenty paces, we accept the fiction as necessary and turn a blind eye to its existence. The fiction is that the players in the system representing the power of the Sovereign are inherently trustworthy.
From the police officer on the street, to the prosecutor in the well, to the judge on the bench, we accept their word because to do otherwise would be to have no starting point for a credible system of justice. We presume good faith. We presume integrity. We presume that they execute the functions of their office with integrity.
Why is this a fiction? Because they are all human beings, clothed in their respective official positions. They carry the same baggage that all other human beings carry, prejudice, misperception, ego, antagonism. Like all human beings, they are flawed. But to admit that we’ve put the system in the hands of flawed human beings is to concede that it is impossible to craft a system that has inherently integrity. Instead, we would admit to a system that is no better than the players upon which is relies, and we would be left with the system that could never be trusted to produce justice.
It’s not that our system does not permit challenges to the presumption of the integrity of the Sovereign’s representatives, though the challenges fail the vast majority of the time. But even when they succeed, the outcome is painted in terms that are institutionally acceptable, good faith mistakes rather than deliberate, malicious impropriety. And when the impropriety is so clear, so egregious that it can’t be whitewashed, it’s invariably “one bad apple,” an isolated incident.
The institutional fear is that prosecutors, if constrained by the concern that they could be held personally accountable for their faults, would be paralyzed by fear and fail to do the Sovereign’s bidding. The institutional fear is that if the public, from whom acceptance of the fiction of justice is needed for the legal system to be accepted and an effective means of control, would reject the inherent integrity of the system if the Sovereign acknowledged that its representatives were unreliable, at times malevolent and abusive, and therefore unworthy if being given the presumption of good faith and integrity.
Of course, the alternative, when it becomes painfully clear that a prosecutor has engaged in affirmative, deliberate impropriety, that the public recognizes that they suffer no repercussions for their offense leads inexorably to the conclusion that the system lacks integrity and is untrustworthy. If we don’t punish wrongs, regardless of who commits them, then we encourage impropriety and breed mistrust. But given the strength of the public’s acceptance of the fiction, it has overcome this nagging problem and the public suspends reasons in order to maintain its belief in the integrity of the system. In other words, the fiction has served well to maintain public acceptance of the integrity of the legal system, despite these “isolated instances,” and will continue to deny that these individuals engaged in deliberate wrongs for as long as it can get away with it.
The fact is that, in the grand scheme of things, only a fraction of the populace sees a problem with prosecutorial misconduct. For most people, it never enters their consciousness, never challenges their presumptions. Given that it only involves a minute fraction of the vast numbers of people prosecuted for crimes, at least as far as documented cases are concerns, it’s quite easy to gloss over the problem as aberrational and never give it a second thought.
We have been well-played by the fiction, and embrace it whole-heartedly. We need to do so, for we have been programmed to believe that without it, we would be subject to the savagery of evil criminals who would lay siege to our world. Don’t look behind the curtain; just accept that the system may not be perfect, but it’s the best their is. And we can all sleep better at night knowing the Sovereign is there to protect us.
It’s unclear to me whether this provides an answer to Radley’s question, or whether it’s accurate at all. Like Radley, I too find this to be a problem that demands redress, and hence my argument as to why it is allowed to happen vapid. One of the precepts underlying the ethical code for lawyers is to enhance the public’s perception of the legal system. Is that better accomplished by denying its faults or by striving to understand and fix them?
That lawyers who played dirty as prosecutors end up as judges is just salt rubbed in the wound, the system’s ultimate proof of its own trustworthiness. A dirty joke meant only for insiders.
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I know you’re not here asserting the contrary, but there is generally no such thing as a “noble lie,” and if in extraordinary circumstances there is (e.g., lies to Nazis by people concealing Jews or to slave-hunters by participants in the Underground Railroad), the fiction you discuss is not one of them. Some of us don’t believe (and again I know you’re not here asserting the contrary) that if the curtain is torn away to reveal the man behind the Wizard, or if it’s loudly proclaimed that the “Sovereign” has no clothes, then without these illusions we would necessarily be left to resolve our disputes by swords or pistols at twenty paces.
I hope I didn’t give the impression that I thought this was a concerted effort, a deliberate conspiracy. I don’t, and think such a notion is ridiculous. Rather, I see that as an unspoken, but widely held rationale by people in official positions to sweep nastiness under the carpet in furtherance of preserving the viability of things they believe to be of greater importance.
The judicially-imposed precept that lawyers are ethically bound to enhance the public’s perception of the legal system comes close to sounding like part of such a concerted effort or deliberate “conspiracy.” The precept is apparently pretty old, however, so it doesn’t indicate that those overseeing the justice system today are actively and consciously engaged in what we’d normally consider a deliberate conspiracy. If it’s a conspiracy, it’s one that is age-old, an unspoken (although actually spoken in the precept just referenced) and unexamined assumption that deserves a closer examination.
Put in simpler terms, at some point you have to trust somebody. If we create a position above prosecutors, policemen, and judges which has the power to discipline them, then we have simply added another flawed human to the mix who can also prey on the innocent. This isn’t just speculation; we see honest policemen who are persecuted by internal affairs officers for “snitching” on fellow officers who have actually committed crimes.
Part of the problem here is that we have a class of crimes for which there is no punishment. The Constitution is the most basic law of the land, and through incorporation many parts of it are the basic law for all levels of government. Yet, those parts come with restrictions on government but no punishments.
As a result, we’ve come up with faux punishments that are do no harm to the criminal, e.g. the exclusionary rule. If a piece of evidence is found during an illegal search, it’s inadmissible in court.
Well, good, but doesn’t “illegal search” imply that there’s a *criminal* involved who should be “punished*? Yet there’s no codified punishment for such.
If we were to simply treat illegal actions as such, even (or especially) when they’re committed by state actors, the problem would go away. I’m still amazed that the victims in these cases – people who sometimes spent decades in jail for crimes they didn’t commit – don’t resort to the swords/pistols methodology of handling the problem. I’m not sure I’d be as strong as them in that position.
Very good piece. I tracked your site down from Balko’s, which I read daily–especially on these issues.
I would quibble with you on only one point–but it could be one which affects the equation quite a bit, in my humble opinion.
The “fiction” has become such “fact” that, as you put it, only a fraction of the populace sees a problem with prosecutorial misconduct.” So I do not see the “institutional fear” at all. It has evolved into “power”–a point Balko often implicitly makes.
That “power” is manifest in a simple traffic stop by a policeman. Suspects in almost any case quickly discover the “power” of the system, even when totally innocent. By the time a matter proceeds to trial, the prosecutor operates, not with even an ounce of fear, but with full power and then, with the “fiction” that he does so “for the people”–that bespeaks power.
Challenges to that power are not answered out of fear, but even more power–which explains why the “people” so rarely speak up against abuse.
Only when a case is so egregious, such as the Duke Lacrosse scandal, does public outcry call for investigation.
Institutional power, rather than fear, is what rules, and it has become the task of the citizenry to fear the Sovereign in all its forms.
I see your point. My sense is that people in power fall into one or the other camp, assertion of power or fear of its loss and being revealed as unworthy. I opt, for this purpose, to use fear as the primary motivator, but I’m also sure that power may be primary for many as well.
I don’t think anybody thought to challenge it, from a historical perspective. I suspect now, with lawyers asserting their freedom of expression far more readily, the ethical antagonism toward criticism of the system will be much harder to maintain.
good piece- suspended reason with belief in a fiction… looks like religion to me. pretty scary.
It is hard not to conclude that winning (by cheating?) = judgeship is not a message most prosecutors have absorbed. It cannot be concluded that they all intend evil; it may be that they are so incompetent that they believe that this is the (only?) way to proceed. This hardly seems like a good criteria on which to pick judges.
“The System” better find a fix for this sort of impropriety pretty quick. If not, the people are likley to take “justice” into their own hands. If I were wrongfully convicted because of a prosecuters malfeasance, he better move to another planet with his family when I get out of jail. Because if I can’t get “justice” from the “system”, I am left with only natural justice. And from my perspective, I have already “Paid my debt” to society for the heinous crimes I am about to commit.
There’s actually very little I agree with in your piece, and while you give a very broad disclaimer at the end, it seems to me you’re starting on may wrong premises.
“From the police officer …, to the prosecutor …, to the judge …, we accept their word because to do otherwise would be to have no starting point for a credible system of justice.”
This is exactly wrong. Our current system -started out- with the assumption of misconduct. The whole reason for a jury and burden of proof is -because- some individuals are untrustworthy.
“But to admit that we’ve put the system in the hands of flawed human beings is to concede that it is impossible to craft a system that has inherently integrity.”
Actually, it’s the exact opposite: The -only- way to prove inherent integrity is to weed out those who are the ones destroying the trust — namely, lying prosecutors.
“But given the strength of the public’s acceptance of the fiction, it has overcome this nagging problem [of affirmative, deliberate impropriety] and the public suspends reasons in order to maintain its belief in the integrity of the system.”
I doubt this is the case. My suspicion is it’s creating a ‘chilling effect on steroids.’ After all, if a known liar is promoted and you speak up against them, imagine the damage they could do to you. That concept goes a long way to encourage public complacency.
“The fact is that, in the grand scheme of things, only a fraction of the populace sees a problem with prosecutorial misconduct.”
This is irrelevant. Criminal activity must be dealt with. In the grand scheme of things, only a fraction of the populace are murdered. Shall we stop arresting murderers?
I think Berwyn Heights Mayor Cheye Calvo said it best at a Cato Institute Capital Hill Briefing on July 7th, 2009 when he was describing the firing of a police officer, “When [police officers] file false statements, they don’t get to be police officers anymore. That’s the deal.” Firing should be the very minimum for proven misconduct in these types of roles.
I think this is caused by a systemic problem that combines mutual back-scratching with an implied threat of retaliation, and it has nothing to do with public ignorance or apathy.
good job!
I am not quite sure what Sean L. is trying to say.
One thing he said, is categorically wrong:
“Our current system -started out- with the assumption of misconduct. The whole reason for a jury and burden of proof is -because- some individuals are untrustworthy.”
Nope, sorry, Dude. It started out to protect the Constitutional liberties of those accused. And that is a Constitutional fact.
But otherwise, you just seem to wander to and fro. You need to do some clarification as to what you meant. 🙂
Fantastic piece.
I disagree with the first Institutional Fear, that Prosecutors would be “constrained by the concern that they could be held personally accountable for their faults, would be paralyzed by fear and fail to do the Sovereign’s bidding.”
If there’s no consequence for misconduct then misconduct is permitted. It’s that simple.
To allow this for the purpose of preserving the happy illusion that the justice system is always trustworthy is like walking across a freeway with your eyes closed under the assumption that closing your eyes will prevent you from getting run over. The only people who would disagree with this method are the ones who get run over. Everyone else would insist it works.
I think that you, as well as Sean L, may be confusing the explanation for why it is that prosecutors are not held accountable for impropriety with your belief that they should be. I realize that this may be a subtle distinction for some people, but it’s the distinction between what this post addresses and your comment.
The explanation for the phenomenon doesn’t suggest that the reasoning is correct, proper or acceptable, but that it is why prosecutors are not held accountable. In other words, this is why the people who should hold prosecutors accountable do not. Like you, I disagree with the reasoning, but that’s not the subject of this post. I hope this helps to make the point a bit clearer.
This post is an effort to explain why the phenomenon happens. You’re disagreement is with the fact that it does happen, an entirely different issue. I’ve tried to explain the distinction below for those who have misunderstood the explanation to be a rationalization. I hope this helps.
You are on the right track I think.
The Chief Judge of the Second Circuit was up here about a year ago addressing the Federalist Society chapter. He made an interesting comment regarding lawyers who represent not-for-profits versus lawyers representing important institutions like government and big companies, to the effect that lawyers for the establishment interests have to be “responsible”, whereas lawyers for individuals, the poor and whatnot don’t bear any responsibility and don’t suffer the consequences of outcomes in their favor. Something like that.
This reveals, of course, a deep bias in favor of institutional litigants, especially government.
You can see the aversion of such a mind to acknowledging highly irresponsible, nay criminal conduct, on the part of those he implicitly trusts. His presumption in favor of institutional litigants and their lawyers is pretty much conclusive.
And I must regretfully state that in my experience he is right in line with the judiciary generally.
Look at any judge at the trial level. You run into a case where the cops and the DA have lied and cheated. The judge has heard this a thousand times from a thousand defendants, always rejected it, and sent the defendant off to do his punishment. The judge is very invested, personally, morally, professionally, in such things never being true, because if they could be true, even a few times, he has done some really terrible things, even if unwittingly.
So there is a great deal of visceral resistance to the idea that the cops or the DA or both have lied and cheated. It basically amounts to psychopathic denial, so that even after the fact is demonstrated there’s further reluctance to impose consequences, which is just more salt in the wound.
And that explains why there’s no accountability, as a general rule. Once in a great while there is.
One solution is that prosecutors and other institutional lawyers should be disqualified from being judges. In fact, I think the system would function far better if the bench consisted of lawyers selected at random exclusively from the criminal defense bar.
And anybody who wants the job should also be disqualified. Nobody in their right mind should want to be a trial judge. It should be like a draft.
Sir, I’ve asked myself this very same question. Thanks for the help in clearing up some of the sticking points. I also wonder why the media fails to report the names of the prosecutors when reporting on wrongful convictions?
As to one of the reasons “why” they get away with it, It appears that lawmakers have inserted a loop-hole giving state’s lawyers the right to claim “Absolute Immunity.” Combine this with the don’t ask, don’t tell motto and eventually enough people will be directly effected to warrant mass demonstrations.
Removing this loophole would make prosecutors (former and present) accountable for improprieties & restore faith in the system. In conjunction with the formation of ADA Task Teams (without quotas), we would see less instances of it due to the team as a whole would be accountable from day one. I know, it(aint happening). Thanks anyway.