Prosecutors have power. They have been given that power in part to effectively ensure public safety. Yet, everyday in courtrooms across the country, prosecutors are abusing their broad powers and engaging in misconduct that can and does lead to flawed verdicts and the conviction of innocent people. It is a severe problem -- it is a widespread problem. Our criminal justice system can and should do better.
Arguably the most powerful figures in the criminal justice system, prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The responsibility of a prosecutor is not to simply seek convictions, but to seek justice. This means that, in addition to convicting the guilty, the prosecutor has a duty to protect the innocent and guard the rights of the accused. Yet within our criminal justice system there is a lack of transparency and accountability which has allowed prosecutorial abuse of power and misconduct to become common place.
It is a problem at both the state and federal levels. We are all aware of the recent headlines around the Ted Stevens case, where Attorney General Eric Holder dismissed an indictment against the former Alaskan senator, citing prosecutorial misconduct as the primary reason. Just last week, Federal District Court Judge Emmett Sullivan ordered a special investigation of six federal prosecutors within the Department of Justice for their acts of misconduct in the case, including the mishandling of witnesses and suppression of important evidence. In North Carolina in June of 2007, another high profile case of prosecutorial misconduct ended in the disbarment of Durham County District Attorney Michael Nifong for suppressing evidence and making inflammatory public statements related to the prosecution of three innocent Duke Lacrosse players for rape.
While these high profile cases provide egregious examples of prosecutorial misconduct, they are not isolated incidents. There are numerous prosecutors that have committed similar abuses of power and acts of misconduct that have not been held accountable in a similar fashion and continue to practice law as prosecutors. Unlike the examples cited above, the vast majority of misconduct cases go unnoticed -- prosecutors are rarely held accountable when they make egregious errors or abuse their power. Jurisdictions around the country have failed to effectively investigate or sanction prosecutors. This lack of accountability has led to widespread abuse of prosecutorial power, and a flawed and inaccurate criminal justice system.
The most common type of prosecutorial misconduct is the suppression of exculpatory evidence from the defense. Other forms include courtroom misconduct, mishandling of physical evidence, threatening or badgering witnesses, using false or misleading evidence, and improper behavior during grand jury proceedings.
Today, The Justice Project released Improving Prosecutorial Accountability: A Policy Review, which analyzes prosecutorial misconduct and presents comprehensive recommendations to improve the accountability of our nation's prosecutors. The policy review offers solutions to systemic problems that lead to prosecutorial misconduct. Among other recommendations, states are encouraged to require all prosecutors' offices to adopt and enforce clearly defined office manuals on the proper use of discretion, adopt open-file discovery in criminal cases, and establish prosecutorial review boards to investigate and sanction prosecutors who abuse their power. In addition, the policy review profiles cases of prosecutorial misconduct that led to wrongful convictions and the death sentences of innocent individuals, highlights jurisdictions that have taken steps to curtail prosecutorial misconduct, and includes a model policy.
It is time for states to take steps to ensure prosecutors are held accountable for their actions in all cases -- not simply the high profile ones. The Justice Project's recommendations, if implemented by the states, would significantly improve prosecutorial accountability, which would increase the fairness and accuracy of our criminal justice system.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.