Monday, January 4, 2010
Rachel E. Barkow (New York University - School of Law) has posted Organizational Guidelines for the Prosecutor's Office (Cardozo Law Review, Forthcoming )on SSRN. Here is the abstract:
The existing framework for addressing prosecutorial misconduct is entirely backward-looking - and ineffective. Judges and state bars are supposed to police violations when they occur. But just as a model that focuses solely on individual liability and addressing particular violations after-the-fact proved inadequate in deterring corporate crime, so, too has it failed in addressing misconduct within the larger entity of the prosecutor’s office. Most violations never come to light, and when they do, individual actors responsible for the misconduct rarely face any consequences.
Prosecutors recognized these failings when the entity at issue was a corporation. They have aggressively targeted the entity itself to address these shortcomings and to encourage forward-looking reforms. Specifically, they have used the entity as a partner in stopping wrongdoing before it happens by insisting on strong compliance programs that rely on training, supervision, transparency, and monitoring. This Article argues that it is time for prosecutors to recognize that their own offices should be held to the same standards.