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The Problem: A Deeper Dive

What Powers Do Prosecutors Have and What Is Prosecutorial Misconduct?

Prosecutors have immense power in our legal system. While there has been public focus on police action, there is rarely public attention to prosecutors, who have been described as the most powerful officials in the criminal legal system—more powerful than police officers and often even more powerful than judges.1 For that reason, prosecutorial power cannot be separated from the mass incarceration and racial oppression that constitute the fabric of the modern American punishment system.

The Role of Prosecutors in Mass Incarceration

The United States has the highest incarceration rate in the world. Prosecutors decide who to prosecute, with what charges, what plea offers they give (if any), and whether to recommend incarceration (and if so, how much). Without prosecutors requesting incarceration (whether pretrial or post conviction), we would not have the mass incarceration epidemic we face today. Indeed, scholars have convincingly argued that the single most important factor in the rise of mass incarceration in the 1980’s and ‘90’s was a dramatic increase in prosecutors’ decision to file felony charges. Other causes of mass incarceration, such as more punitive sentencing laws, were sometimes supported or even proposed by prosecutor organizations. A 2020 study noted that even since 2003, prosecutors have filed more charges per arrest.2

Every year, police arrest millions of people.3 But an arrest does not mean someone is formally charged in court. It is up to the prosecutor to review a police report and decide to charge the person with a crime—or not—the “tipping point” of how someone’s life will be impacted by the criminal legal system.4 In death penalty cases, “[t]he prosecutor bears the sole responsibility for setting the death machine in motion.”5

As former prosecutor, now Professor Paul Butler, has noted, “American prosecutors have so much discretion, and there are so many criminal laws, that they can bring a case against virtually whomever they choose.” Proving this point, a 2020 study passed out the same hypothetical arrest scenario to 541 prosecutors across the country.6 The prosecutors’ responses were all over the map, charging the allegations in a variety of ways, such as felony charges and jail confinement, misdemeanor charges, and no charges at all. This haphazard result conclusively demonstrates what many already know: people accused of the same act suffer wildly different consequences.

As the study makes clear, the lives of arrested persons’ “are all in the hands of one criminal justice actor: a prosecutor. None of these arrests become cases unless a prosecutor makes a decision. Prosecutors decide whether to initiate criminal proceedings, what charges to bring, what penalties to seek, and when a plea bargain is appropriate. And since 94% of criminal cases are resolved by plea bargain, prosecutors, not judges, are determining a defendant’s fate the vast majority of the time.”7

The Role of Prosecutors in Structural Racism

The majority of incarcerated people are men of color, particularly Black men. Black Americans are incarcerated in state prisons at nearly five times the rate of whites, while Latinx people are 1.3 times more likely to be incarcerated than whites.8 In twelve states, more than half the prison population is Black, while in seven states there is a Black to white disparity of nine to one.9 As the ones who make the charging decisions, prosecutors play a key role in this racist outcome.

In its Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System, the Sentencing Project noted that research showed state prosecutors were more likely to charge Black Americans rather than similarly situated white Americans under habitual offender laws.10 The federal system is just as insidious. According to the Sentencing Project report, research revealed that federal prosecutors were twice as likely to charge Black Americans with offenses carrying a mandatory minimum sentence as compared to similarly situated white Americans.11 As prosecutors have the power to choose who to prosecute, with what charges, and how severe a punishment to pursue, they are directly responsible for these racial disparities.

What Is Prosecutorial Misconduct?

According to legal ethics rules, prosecutors should act as “ministers of justice,” not just advocates, and follow their ethical obligations to ensure that people accused of crimes are prosecuted “fairly” and that innocent people are not convicted.12 Prosecutors’ tremendous power is bound by rules—and courts and ethical standards often claim to hold prosecutors to the highest standards of all attorneys.13 As the United States Supreme Court and the New York Court of Appeals have stated, a prosecutor “may strike hard blows, [but] he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”14

Despite these ethical obligations, misconduct persists, with devastating impact. According to Professor Paul Butler, a former prosecutor, “most prosecutors don’t see advancing the defendant’s interests as part of their job” and striving for harsh sentences is part of an office culture of winning.15

When prosecutors do not abide by those rules, that is called Prosecutorial Misconduct. Some of the more common forms of misconduct can be seen below.

common types of prosecutorial misconduct

Prosecutorial Immunity for Misconduct

While other attorneys and law enforcement officers are liable to civil lawsuits when they break the rules, the absolute immunity doctrine often shields prosecutors from civil accountability.16 It is very difficult to successfully sue a prosecutor for misconduct.

The majority of prosecutorial misconduct is likely never discovered. Even on those rare occasions when courts find misconduct, they often deem the misconduct “harmless error,” leaving the conviction intact. Court decisions usually do not name the prosecutor, further reducing transparency.

This means that prosecutors who commit misconduct frequently continue practicing law without any public discipline. In fact, some prosecutors are promoted despite their misconduct and rise through the ranks of district attorney’s offices, where they have the power to train and supervise newer prosecutors, continuing a cycle of harm in the community.

Ethics Organizations Rarely Issue Public Discipline for Prosecutorial Misconduct

In 1976, the U.S. Supreme Court partly justified absolute immunity for prosecutors because it believed that prosecutorial misconduct would be regulated by the “checks” of “professional discipline” by state bar organizations.17 Unfortunately, the U.S. Supreme Court’s assumption—that professional disciplinary actions would “provide an antidote to prosecutorial misconduct”—has not been borne out.18 It is exceedingly rare for courts to provide a remedy on appeal or habeas corpus petition to criminal defendants whose cases were marred by prosecutorial misconduct.19 And even when courts do act – by reversing a defendant’s conviction or sentence – the prosecutor almost never faces ethical discipline or other forms of accountability.

The National Registry of Exonerations issued this 2020 report, examining the consequences of prosecutorial misconduct in particular exoneration cases. The report found that “[p]rosecutors who committed misconduct in criminal cases that led to exonerations were rarely disciplined; it happened only 4% of the time.” A 2013 report from the Center for Prosecutor Integrity identified 3,625 cases of prosecutorial misconduct between 1963 and 2013. Of those, only sixty-three prosecutors—less than two percent—were ever publicly disciplined.20

In their 2016 article, “Prosecutorial Accountability 2.0,” ethics experts Professors Ellen Yaroshefsky and Bruce Green pointed out that prosecutors “were rarely disciplined for misconduct, and if so, not very seriously.”21 Indeed, “neither judges nor defense lawyers ordinarily alerted disciplinary agencies when prosecutors acted wrongly … [D]isciplinary agencies and the courts overseeing them largely gave prosecutors a pass, perhaps hoping that prosecutors’ offices would clean up their own messes.”22 “It’s an insidious system,” said Marvin Schechter, then-chairman of the criminal justice section of the New York State Bar Association, to ProPublica.23 “Prosecutors engage in misconduct because they know they can get away with it.”24

A review of 151 New York cases between 2004-2008 where trial and appellate courts found prosecutorial misconduct revealed that the Grievance Committees issued discipline in only three.25 A 2013 study of ten years of New York state and federal decisions revealed more than two dozen instances in which judges reversed convictions explicitly because of prosecutorial misconduct.26 Yet these appellate courts “did not routinely refer prosecutors for investigation by the state disciplinary committees,” and the disciplinary committees otherwise “almost never took serious action against prosecutors.”27 Indeed, among these numerous cases in which judges overturned convictions based on prosecutorial misconduct, only one prosecutor was publicly disciplined by a New York disciplinary committee.28 None of the other implicated prosecutors were disbarred, suspended, or publicly censured and, according to personnel records gathered by ProPublica, several prosecutors were promoted and given raises soon after courts cited them for abuses.29 According to a 2018 article, a review of 148 New York cases in the 2000’s with prosecutorial misconduct findings revealed that none of the prosecutors were disciplined.30

In 2018, the New York Times Editorial Board wrote, “there’s no reliable system for holding prosecutors accountable for their misconduct, and they certainly can’t be entrusted with policing themselves.”31

Sadly, after three years of roadblocks to even basic reforms, the New York Times Editorial Board wrote another scathing op-ed, “How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?” excoriating the protective “layers of silence and secrecy that are written into local, state and federal policy, shielding them from any real accountability for wrongdoing.”

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Visitor Note: The views expressed in cited sources represent only the source’s author(s) and are not necessarily shared by any Accountability NY coalition partners.

+ Show footnotes

  1. Of course, egregious injustices often involve the intersection of police, prosecutors and/or judges, see, e.g., Steven Zeidman, From Dropsy to Testilying: Prosecutorial Apathy, Ennui, or Complicity? Ohio State Journal of Criminal Law (2019), 16 Ohio St. J. Crim. L. 423. For more about the role of a prosecutor generally, see Abbe Smith, Are Prosecutors Born or Made? Georgetown Journal of Legal Ethics (2012), 25 Geo. J. Legal Ethics 943.
  2. Shima Baradaran Baughman & Megan S. Wright, Prosecutors and Mass Incarceration, Southern California Law Review, Vol. 94, No. 5 (2020), 94 S. Cal. L. Rev. 1123. Even during the Covid-19 pandemic, punitive norms remain entrenched, see, e.g., Nicole Smith Futrell, Decarcerating New York City: Lessons from a Pandemic, Fordham Urban Law Journal (2020), 48 Fordham Urb. L.J. 57.
  3. Id.
  4. Daniel S. Medwed, Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution, Cardozo Law Review (2010), 31 Cardozo L. Rev. 2187.
  5. J. Amy Dillard, At His Discretion (n.): “to be disposed of as he thinks fit; at his disposal, at his mercy; unconditionally,” 97 J. Crim. L. & Criminology 1295, 1303 (2008).
  6. Baughman & Wright, supra.
  7. Id.
  8. The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons, Ashley Nellis, Oct. 13, 2021, available at https://tinyurl.com/2uhur3s3.
  9. Id.
  10. The Sentencing Project, Apr. 19, 2018, available at https://tinyurl.com/zjck232k.
  11. Id.
  12. ABA Model Rule 3.8 (comment); see also Daniel S. Medwed, The Prosecutor As Minister of Justice: Preaching to the Unconverted From the Post-Conviction Pulpit, Washington Law Review (2009), 84 Wash. L. Rev. 35.
  13. Matter of Rain, 162 AD3d 1458, 1462 (3d Dept 2018) (“[P]rosecutors carry an obligation to hold themselves to the highest standards based upon their role in our system of justice.”); see also ABA Criminal Justice Standards: Prosecution Function Standard 3-1.4(a) (“In light of the prosecutor’s public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts and in fulfilling other professional obligations.”), available at https://tinyurl.com/2p8nanz8.
  14. Berger v United States, 295 US 78, 88 (1935) (emphasis added); see also People v Jones, 44 NY2d 76, 80 (1978) (quoting Berger, 295 US at 88); People v Calabria, 94 NY2d 519, 523 (2000) (“Evenhanded justice and respect for the fundamentals of a fair trial mandate the presentation of legal evidence unimpaired by intemperate conduct aimed at sidetracking the jury from its ultimate responsibility—determining facts relevant to guilt or innocence.”); People v Levan, 295 NY 26, 36 (1945).
  15. Paul Butler, Let’s Get Free: A Hip Hop Theory of Justice (2009), 114-118.
  16. See e.g. Imbler v Pachtman, 424 U.S. 409, 427 (1976); Shmueli v City of New York, 424 F3d 231, 237 (2d Cir 2005) (noting that prosecutors have “absolute immunity” for the “conduct of a prosecution”); Dann v Auburn Police Dept, 138 AD3d 1468, 1469 (4th Dept 2016) (“The law provides absolute immunity for conduct of prosecutors that was intimately associated with the judicial phase of the criminal process.” (internal quotation marks omitted)); see also Ryan v. State, 56 NY2d 561, 562 (1982) (holding that “the doctrine of prosecutorial immunity” precludes “recovery against the State” for “acts of prosecutorial misconduct”).
  17. Imbler, 424 U.S. at 429; see also Matter of Malone, 105 AD2d 455, 459 (3d Dept 1984) (rejecting public official’s claim to prosecutorial immunity in a professional ethics proceeding).
  18. See Karen McDonald Henning, The Failed Legacy of Absolute Immunity Under Imbler: Providing A Compromise Approach to Claims of Prosecutorial Misconduct, 48 Gonz L Rev 219, 242–243 (2012).
  19. See, e.g., Justin Murray, Policing Procedural Error in the Lower Criminal Courts, 89 Fordham L Rev 1411 (2021).
  20. Center for Prosecutor Integrity, An Epidemic of Prosecutor Misconduct at 8 (Dec. 2013) available at https://tinyurl.com/rpxyadhb; see also Project On Government Oversight, Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards (Mar. 2014); Charles E. MacLean & Stephen Wilks, Keeping Arrows in the Quiver: Mapping the Contours of Prosecutorial Discretion, 52 Washburn L J 59, 81 (2012) (citing “the small number of sanctions against prosecutors, relative to lawyers as a whole”); Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 NC L Rev 721, 725 (2001) (describing the “rarity of discipline” of prosecutors).
  21. Bruce Green & Ellen Yaroshefsky, Prosecutorial Accountability 2.0, 92 Notre Dame L Rev 51, 65 (2017).
  22. Id. at 65 (citation omitted); see also Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 NC L Rev 693, 697 (1987).
  23. Joaquin Sapien & Sergio Hernandez, Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody, ProPublica (Apr. 3, 2013), available at https://tinyurl.com/t2ryucec, note 27.
  24. Id.
  25. See Ctr. for Prosecutor Integrity, An Epidemic of Prosecutor Misconduct at 14 (2013), available at https://perma.cc/F4G7-FF54.
  26. Sapien, supra
  27. Id.
  28. Id.; see also In re Stuart, 22 AD3d 131, 133 (2d Dept 2005) (holding, following a Grievance Committee disciplinary proceeding, that a prosecutor’s misconduct warranted a three-year suspension from the practice of law).
  29. See Sapien, supra
  30. Rory I. Lancman & Rachel Graham Kagan, Prosecutorial Misconduct Commission Will Only Be as Strong as Underlying Disciplinary Rules – And That’s a Problem, N.Y. L.J. (Dec. 12, 2018), citing Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson, Innocence Project (March 2016).
  31. Editorial Board, Prosecutors Need a Watchdog, NY Times (Aug. 14, 2018), https://tinyurl.com/4ntvsv85.