Thursday, December 15, 2016
Bruce A. Green and Samuel J. Levine (Fordham University School of Law and Touro College - Jacob D. Fuchsberg Law Center) have posted Disciplinary Regulation of Prosecutors as a Remedy for Abuses of Prosecutorial Discretion: A Descriptive and Normative Analysis (14 Ohio St. J. Crim. L. 143 (2016)) on SSRN. Here is the abstract:
Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression of evidence, which are often unavailable because of the harmless error doctrine and other limitations.
Part II of this Article discusses areas of misconduct for which prosecutors may be disciplined. It argues that, although few ethics rules specifically target prosecutors’ work, a number of generally applicable rules potentially address much of what courts regard as prosecutorial misconduct. In particular, courts have a degree of latitude to interpret the current rules to regulate abuses of prosecutorial discretion.
Part III offers a largely descriptive analysis of how ethics rules have been enforced to date in cases involving prosecutors’ professional work. It argues that although ethics rules may remain largely under-enforced as applied to prosecutors, the Nifong case may mark a potential turning point, as some disciplinary authorities now appear to be responding more forcefully to prosecutorial misconduct. Moreover, several disciplinary cases have been brought against highranking elected prosecutors, driven substantially by concerns about abuses of charging power.
Finally, Part IV considers the potential future role of professional discipline in responding to prosecutors’ abuse of charging discretion. It focuses on commentators’ assumption that discipline is an unpromising route to redressing abuses of discretion because state courts in the disciplinary context, like federal courts in the adjudicatory context, must generally defer to prosecutors’ discretionary decision making. We argue that federal separations of powers principles, which account for federal courts’ deference in adjudicating cases, are not universally applicable to state courts. Indeed, state courts often exercise the authority to inquire into various aspects of prosecutors’ decision making, in both adjudicating criminal cases and sanctioning prosecutors who violate the constitution, statutes, or ethics rules.