The topic of police brutality has been in the mainstream since the murder of George Floyd. But even before this subject made it onto the national stage, it was often a focal point when discussing issues pertaining to criminal justice reform. Along with mass incarceration, it has dominated conversations about the efficacy and fairness of America’s justice system.

But in focusing on these issues, those participating in the national discussion seem to routinely overlook another factor that has deeply affected Americans’ lives: Prosecutorial misconduct. Police officers are not the only government officials who abuse their authority in a way that leads to tyrannical ends. Corrupt prosecutors have the power to thoroughly ruin the lives of undeserving individuals.

Prosecutors Abusing Their Power

Like members of law enforcement, most prosecutors do not abuse their power. But when they do, they can often do so with impunity because they rarely face accountability for their actions. The New York Times published a piece describing a situation in which New York City’s government retaliated against individuals exposing instances of prosecutorial misconduct.

According to the Times, a group of law professors “filed grievances against 21 prosecutors in the borough — for everything from lying in open court to withholding key evidence from the defense — and then posted those grievances to a public website.” The report continues:

“These weren’t close calls. In every instance an appeals court had made a finding of prosecutorial misconduct; in many cases the misconduct was so severe that it required overturning a guilty verdict and releasing someone from prison. Three men wrongfully convicted of a 1996 murder were exonerated after 24 years behind bars. But that rectified only the most glaring injustice. To date, none of the prosecutors have faced any public consequences. Some are still working.”

The city reacted to the exposure by targeting the professors who revealed the wrongdoing. The city’s top lawyer sent a letter to the grievance committee accusing the professors of exploiting the grievance process “to promote a political agenda” and of transgressing a law requiring that formal complaints against prosecutors be concealed unless the judiciary officials decide differently.

The committee retaliated against the professors by disallowing them to have access to updates on their complaints even though New York law mandates that those filing complaints be kept abreast of the proceedings.

The professors responded by filing a lawsuit against the city in federal court, claiming the law infringes the First Amendment. The author wrote:

“If someone tells a Times reporter about a prosecutor’s misconduct, the reporter is free to write a story addressing those allegations for all the world to see. But if the same person files a formal grievance about the same misconduct with the state, she’s barred from talking about it.”

In another article, the New York Times explained that the city also threatened further action against the professors if they continued filing grievances according to the lawsuit. This is just one of many examples of prosecutorial misconduct. Even the Ahmaud Arbery case is believed to have involved misconduct on the part of former Glynn County District Attorney Jackie Johnson, who is facing charges of corruption because she allegedly used her position to shield Gregory and Travis McMichaels and their neighbor William “Roddie” Bryan from arrest in connection with the young man’s death.

A Primer

Prosecutorial misconduct occurs when a government attorney violates court rules or legal ethical standards. The Center for Prosecutor Integrity published a report in 2013 titled “An Epidemic of Prosecutor Misconduct,” in which they laid out a series of behaviors that could be classed as misconduct. These include:

• Charging a suspect with more offenses than is warranted
• Withholding or delaying the release of exculpatory evidence
• Deliberately mishandling, mistreating, or destroying evidence
• Allowing witnesses they know or should know are not truthful to testify
• Pressuring defense witnesses not to testify
• Relying on fraudulent forensic experts
• During plea negotiations, overstating the strength of the evidence
• Making statements to the media that are designed to arouse public indignation
• Making improper or misleading statements to the jury
• Failing to report prosecutor misconduct when it is discovered

The report notes that corrupt prosecutors can be tempted to engage in misconduct due to “powerful incentives” that include “the gratitude of victims, favorable media coverage, career promotions, appointment to judgeships, and the allure of high political office.”

The Department of Justice, in particular, is rather secretive when it comes to the implementation of its disciplinary policies. The report notes:

“When USA Today sought to learn how the DOJ handled 201 cases of misconduct by its prosecutors, the DOJ declined the request, offering this tendentious explanation: The department will not reveal how many of those prosecutors were punished because, it said, ‘doing so would violate their privacy rights.’ One wonders which legal policy was instituted to afford privacy to a prosecutor who acts in an unethical manner, and how this rule serves the public interest.”

(Photo by Spencer Platt/Getty Images)

But even more disturbing is how rarely prosecutors are punished for abusing their offices. The report notes that nine studies “have analyzed the professional consequences of prosecutor misconduct” and found that public sanctions are only given in two percent of cases. In many of these instances, the individuals receive only minimal punishment. “For example in the nearly 50 cases identified in the Center for Public Integrity analysis, the most common sanction was to assess the prosecutor with the costs of the disciplinary hearings, occurring in 24 cases. In only 14 instances was a prosecutor suspended or disbarred from practice,” according to the report.

Accountability for Prosecutors?

People on both sides of the political divide can agree that a government official who abuses their authority should be held accountable. But there has not been much discussion of this concept when it comes to prosecutors at the federal, state, and local levels.

A corrupt prosecutor can rob Americans of years of their lives. They can send innocent people to prison for excessive amounts of time, and in some cases, their actions can lead to unjust executions. There are several areas of criminal justice that need reform. But corrupt prosecutors can sometimes function as the most dangerous agents of tyranny, especially if this particular issue continues to be neglected.

~ Read more from Jeff Charles.