Perverse incentives lead to perverse outcomes: unethical prosecutors edition

What of the great failings of our criminal justice system is that we give prosecutors absolutely massive power over people’s live, but expect virtually no accountability from prosecutors in using that power responsibly.  Put someone away, wrongly, for life, based on malfeasance, and maybe, just maybe you’ll lose your job.  More likely, just some sort of administrative slap on the wrist. 

So, the reality is that we give prosecutors huge incentives to act perversely.  Like it or not, the reality is that they are rewarded for successful convictions, not justice.  Meanwhile, there is very low risk of punishment and very limited punishment for malfeasance in the pursuit of convictions (even of the innocent), over justice.  So, ultimately then, we are relying on the innate goodness of prosecutors in the face of a system of all the wrong incentives.  Rarely does that work out well.  Great NYT Editorial on this significant problem: “How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?”

Prosecutors are among the most powerful players in the criminal justice system. They can send a defendant off to years in prison, or even to death row. Most wield this power honorably. Yet, when prosecutors don’t, they rarely pay a price, even for repeated and egregious misconduct that puts innocent people behind bars.

Why? Because they are protected by layers of silence and secrecy that are written into local, state and federal policy, shielding them from any real accountability for wrongdoing.

New York City offers a prime example of a problem endemic to the nation. Consider the city’s official reaction to the barrelful of misconduct in Queens that a group of law professors recently brought to light. As The Times reported last month, the 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.

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.

How did the city respond to this litany of widespread misconduct by its own agents? It went after the professors who publicized it…

Meanwhile, the few attempts to increase oversight of New York prosecutors have been stymied. A 2018 law established a commission specifically to deal with prosecutorial misconduct in a more independent and transparent way. But the state district attorneys’ association challenged it and a court struck it down as unconstitutional. Lawmakers designed a new commission this year, but it appears that no commissioners have yet been appointed to it.

New York’s prosecutor-protection racket is, alas, far from unique. In Washington, the Justice Department aggressively shields its own prosecutors from outside accountability thanks to a 1988 law that lets the agency essentially police itself. All other federal agencies — and even parts of the Justice Department, like the F.B.I. and the Drug Enforcement Administration — are subject to oversight by independent inspectors general, who conduct thorough investigations and issue lengthy reports with their findings. Federal prosecutors skate by on an internal review process that is run out of the Office of Professional Responsibility, whose head is appointed by, and reports directly to, the attorney general. The office almost never makes its findings public, and when it does it often provides only a brief summary months after the fact. In the words of one legal-ethics expert, it’s a “black hole.” (By contrast, the inspector general’s office of the Justice Department just released its semiannual report, as it is required to do by law, detailing the 52 reports it issued between April and September of this year, as well as the closing of investigations that resulted in 68 convictions or guilty pleas and 66 firings, resignations or disciplinary actions.)…

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

Sure, sometimes there really are honest mistakes.  But when you look at case after case of the horrible miscarriages of justice that result in exonerations, so often there’s malfeasance behind it.  And pretty much never does the prosecutor face any genuine accountability for willfully ruining someone’s life.  Welcome to America?

And, as long as we’re on the awfulness of America’s Criminal “Justice” system, great take from David Leonhardt yesterday, “Good morning. Should wrongfully convicted people falsely admit guilt to win parole?”

A terrible Catch-22

Jeffrey Clark and Garr Keith Hardin were the victims of an unjust murder prosecution near Louisville, Ky., during the mid-1990s.

A jailhouse informant made up a story about one of them confessing. The police did not pursue a lead involving an actual confession to the murder. A dishonest detective — Mark Handy, later discovered to have fabricated evidence — testified against Clark and Hardin. And the prosecutor misled the jury about a fingerprint and a hair sample at the crime scene.

The jury convicted the two men, then both in their early 20s, and they were sentenced to life in prison. They would spend more than 20 years there before lawyers for the Innocence Project helped win their release, based on DNA evidence and the exposure of the detective’s dishonesty.

At that point, you might have expected the criminal justice system to apologize to the two men and leave them alone. Instead, prosecutors announced plans to try them again for the murder — and even added a perjury charge against Clark. Why? Partly because, in an attempt to win parole while in prison, Clark had decided to admit to the murder and express remorse.

Parole hearings create a terrible Catch-22 for wrongfully convicted people. If they admit guilt, they can undermine any attempt to overturn their conviction. If they continue to assert their innocence, they can doom their best chance at freedom — parole — because parole applications effectively require statements of remorse.

The sad truth is that so much of criminal justice in America is just a moral abomination.  On the bright side, at least more and more people are increasingly aware of just how much of a problem this is. 

About Steve Greene
Professor of Political Science at NC State

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