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  • Belen Crisp

Are Prosecutors Above Reproach? New York’s Struggle to Address Prosecutorial Conduct

Updated: Oct 19, 2023

In 2018, New York became the first state to create a statewide commission, called the Commission on Prosecutorial Conduct, to address prosecutorial misconduct. The commission’s main goal is to fight malicious prosecution and wrongful convictions. While many members of the public are pleased with the new legislation, prosecutors plan to bring lawsuits.

The commission would have a wide depth of power, with the authority to sanction prosecutors and remove them from office if the commission deems it necessary. The commission would consist of eleven members; those members can evaluate any of the sixty-two district attorneys in New York. The commission may determine whether a district attorney’s conduct is unprofessional, unethical or unlawful. Not only can the commission evaluate prosecutorial conduct, it can conduct hearings, compel witnesses to testify, issue subpoenas, and request any records or materials that it deems relevant to an investigation. The commission in effect has the same powers as an administrative law agency in New York.

The main concerns brought to light by the litigation are focused on the constitutionality, or unconstitutionality, of the legislation. Those against the legislature, like the District Attorneys Association of New York, note that an expansion of the powers of the judiciary, and possible violation of the separation of powers doctrine, are unconstitutional..At stake for District Attorneys is the potential interference with their otherwise unlimited scope of power. The District Attorney alone decides who to charge and for what; what plea deal to offer, if any; which information to share with the grand jury, and which to withhold; who gets to participate in a substance abuse or mental illness diversion program instead of going to jail; and, for all practical purposes who sits in jail unable to afford their bail while they await trial.

Alternatively, public defenders and other groups in favor of the panel are praising the creation of the commission. Since 1980, approximately 300 people have been exonerated in New York. One of the contributing factors in many of the cases was official misconduct. However, study after study has shown that prosecutorial misconduct almost never results in prosecutorial sanction.

Prosecutors are rarely punished for misconduct. A common accusation against prosecutors is an alleged a violation of the Brady rule, which essentially requires prosecutors to disclose materially exculpatory evidence within the government’s possession to the defense.

In a study conducted by the New York State Bar Association Task Force on Wrongful

Convictions, “government practices” were responsible for thirty-one out of fifty- three

wrongful convictions. In the study “government practices” included Bradyviolations, use of false testimony, and improper evidence retention or transfer. Additionally, the study found that only one of the prosecutors had been disciplined regarding those cases. The traditional process of a person getting “justice” for a wrongful conviction is to sue the city where their case was handled and pursue monetary compensation. While this is one viable option, it is currently difficult to hold prosecutors accountable. The Supreme Court acknowledged that prosecutors have prosecutorial immunity even when constitutional violations are at issue.

The court should give the commission a chance to be formed and begin operation because it has the power to change the criminal justice system for the better. It is necessary to combat an otherwise isolated institution that courts are highly deferential to. Moreover, checks and balances are necessary if we aim to maintain our democratic society in light of increasing social and legal inequality.


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