Prosecutorial misconduct has been an issue that has prevailed, growing larger and larger as the field itself grows. For many states, there is still no law or regulation in order to discipline prosecutors for this conduct. Mostly, it is still left to state bars to determine whether or not a violation has occurred and whether any type of discipline in necessary. For those prosecuted, this can mean little to no justice for the harms caused by a prosecutor ignoring or breaking their own rules of conduct.
New York will be the first state to try and curtail this misconduct as Mayor Andrew Cuomo recently signed a bill passed by the New York Assembly in June. The bill establishes a committee of eleven members overseeing and addressing prosecutorial misconduct within the state. The eleven members will be appointed by a number of different individuals. Two members will be appointed by the governor, three will be appointed by the Chief Judge for New York, and the remaining six members will be appointed by legislators of both political parties evenly. The new committee will have the power to initiate investigations against district attorneys and issue subpoenas for the matters. After hearing the evidence, the committee will recommend sanctions against the attorney that the governor can either execute or ignore. The recommendations made can range from a warning to termination of the attorney.
Proponents of the new committee state that it will curtail misconduct such as withholding of exculpatory evidence and wrongful convictions through a way to hold prosecutors responsible for their actions. Many have also noted the committee could help to stop racial bias and convictions from state prosecutors as well. Currently, New York has had 250 exonerations since 1989 with multiple million dollar payouts for those wrongfully convicted due to this misconduct. Only Texas currently has more exonerations as a state. The large number of settlements and exonerations has pushed the bi-partisan effort by New York to reinforce the code of conduct for prosecutors in the state.
Police officers and district attorneys in New York have been the main groups strongly opposed the bill from the start, stating that the committee will be a large cost for taxpayers and it will simply allow disgruntled or angry defendants to seek frivolous claims against the prosecutors that argued against them. Additionally, the governor and his office have had several concerns about the constitutionality of the new committee. There are questions as to whether granting these powers to the committee could cause the judicial branch to overstep its powers into the executive branch. Ultimately, the governor would not approve or sign the bill until the New York assembly agreed to amend the bill to address the constitutional concerns during the next session. The next session will not be until January 2019. Currently the state district attorneys are planning to sue to stop the bill from moving forward.
It is always difficult to determine how we should ultimately deal with prosecutorial misconduct. There is a strong precedential argument that too much oversight over prosecutors will not allow them to adequately do their job or make mistakes without fear of facing disbarment. However, the number of exonerations and resentencing due to the mistaken or intentional actions by those persons that indicted the defendant in the first place has grown in greater numbers every year. With the large amount of discretion and power granted to prosecutors, it seems to make sense that they are held to a higher standard in order to prevent the abuses of that power. This holds even more true as we have seen how easy and devastating it is for a prosecutor to abuse the system.