Wednesday, December 6, 2006

Joy on Systemic Prosecutorial Misconduct

Posted by Alan Childress

Peter Joy (Wash. U.) has posted on SSRN the article, "The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System." It is also in 2006 Pjoy Wisc. L. Rev.  399.  The abstract:

Prosecutorial misconduct is one of the leading causes, or contributing causes, of wrongful convictions. This paper contends that prosecutorial misconduct is not chiefly the result of isolated instances of unprincipled choices or the failure of character on the part of some prosecutors. Rather, prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutor misconduct. These three conditions create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct.

In order to reduce the number of wrongful convictions, it is essential to understand the institutional conditions that facilitate prosecutorial misconduct. This paper identifies and analyzes these institutional conditions and makes modest, concrete proposals to reduce the incidence of prosecutorial misconduct. The ultimate purpose of the proposals is to prevent wrongful convictions and not to impose unnecessary obligations or unrealistic expectations on prosecutors.

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