Warped Incentives

“Prosecutors have more power than anyone, in many respects, over the lives of the average person,” said Daniel Medwed, professor at the Northeastern University School of Law. “But there is almost no accountability, no transparency, and the public isn’t paying attention—that is a very, very combustible concoction.

In Colorado, a district attorney is offering financial incentives for felony prosecutors who meet their goals for conviction rates at trial. Plea bargains and mistrials don’t count towards the incentives, which average $1,100 per conviction, according to The Denver Post. The Eighteenth Judicial District’s Carol Chambers says she set up the bonus goals to encourage prosecutors to meet minimum requirements that put her district in line with other jurisdictions in the state. Offering financial incentives to prosecutors who get convictions is highly unethical to those who understand the realities of the U.S. legal system. The Denver Post reports that other Colorado DAs interviewed don’t offer similar bonuses. Nor do they tie performance evaluations to conviction rates.

Public defenders worry the bonuses will push prosecutors to force cases to trial. Chambers, who began the incentive program in 2010, exempts prosecutors assigned to complex trials. The Post reports that the felony conviction rate, 69 percent, for the Eighteenth District is just behind rates for Jefferson and Boulder counties, but on par with Denver and Adams counties. Bonuses are to be awarded to those whose conviction rates top 70 percent.

Some prosecutors are wary of the financial incentives as well. “Our job is not to directly tie the conviction rate, trials, or plea bargains to a monetary figure,” First Judicial District Attorney Scott Storey tells a local new channel. “That would be like working on commission or something. And that’s not what we do.”

Behaving Badly

Prosecutorial misconduct can be found across the U.S. For example, in Massachusetts prosecutors have violated defendants’ rights to a fair trial regularly and without punishment, even as wrongfully convicted victims of tainted prosecutions have spent years in prison before being freed, decades of court rulings show.

Since 1985 the state’s Supreme Judicial Court and Appeals Court have partly or entirely reversed at least 120 criminal convictions because of the prosecuting attorney’s misconduct, as described in the judges’ rationale for the overturned verdicts. The New England Center for Investigative Reporting (NECIR) reviewed more than 1,000 rulings in which defendants alleged prosecutorial misconduct. In addition to the 120 reversals, judges criticized the prosecution’s behavior in another 250 cases, but found the lapses not serious enough to affect the jury’s decision, and upheld the convictions.

At least eleven convicted defendants in the reviewed cases were ultimately exonerated. Cumulatively, their time served for crimes they didn’t commit totaled more than 100 years. Others were convicted again or pleaded guilty when facing retrial, sometimes to lesser charges with sentences reduced. Some prosecutors hid important evidence from defense attorneys or didn’t disclose information bearing negatively on witness credibility, judges said. Others misrepresented evidence in their closing statements to the court.

While the 120 reversals are only a small fraction of all convictions, they show the self-regulatory system meant to deal with lawyers’ ethical lapses is unusually protective of prosecutors. When courts throw out convictions citing prosecutorial misconduct, they rarely name wayward prosecutors or recommend discipline.

NECIR found no case in Massachusetts wherein a prosecutor was disbarred for professional misconduct since 1974, when the state Board of Bar Overseers was created to hear complaints against attorneys. Only two public reprimands for professional misconduct were found in that 42-year span, and they came without fines or other punishment. At least seven prosecutors whose behavior prompted courts to reverse convictions went on to higher posts. Some became judges and district attorneys.

When judges toss convictions or indictments due to misconduct, they almost always omit the errant prosecutor’s name, as they did in all but seven of the 120 reversal decisions. That makes it difficult to identify those with a history of misconduct.

Judges shield the identities because many have worked as prosecutors and they sympathize with their heavy workloads, and because they share a general cultural norm against snitching on colleagues, said Adam Gershowitz, a professor at William & Mary Law School in Virginia, who supports transparency. NECIR identified four prosecutors whose actions prompted judges to toss convictions more than once. Only one was disciplined and is currently in private practice.

The Pendulum Swings

Three types of culture—the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how one prosecutor, who will remain unnamed and be referred to as “he” or “him” in the remainder of this post, saw the rights of the people he prosecuted. If you had asked him, he would have said that it was his job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in his heart and in his approach to law, he saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught him that explicitly—nobody had to.

When he left the U.S. Attorney's office after more than five years, his disenchantment with the criminal justice system had begun to crystallize. Now, decades later, his criminal defense career has lasted three times as long as his term as a prosecutor. He’s a defense-side true believer—the very sort of true believer that used to annoy him as a young prosecutor.

Once again, nobody taught him to think that way, and nobody had to. He learned it by watching how the system ground up clients indifferently and mercilessly. He learned it by watching prosecutors make the sorts of arguments and decisions he had made, and seeing how they actually impacted human lives. He learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. He learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

He even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. He saw prosecutors make ridiculous and bad-faith arguments defending law enforcement—and prevail. He saw them make preposterous assertions about the Constitution because they could and because judges would indulge them. He saw them reject his claims that his clients' rights were violated because they were the government and his client was the defendant and that was their job.

Working as a prosecutor doesn't encourage introspection about wrongdoing. When a defense attorney asserts that a prosecutor violated a defendant's rights, that attorney is attacking your brother or sister, your comrade in arms, the person you know and trust. It's easier to believe that the accusation is merely tactical—a gambit to evade punishment for crime—than it is to believe your friend may have done wrong. That tendency to dismiss claims of misconduct is encouraged by the frequency of genuinely bogus complaints. He was accused of prosecutorial misconduct twice, and it was nonsense both times.

Just as the brotherhood of prosecutors was premised on shared experience, it was also premised on shared fear. As a defense attorney, he fears that he will fail his client and they will be unjustly imprisoned. But as a prosecutor, the culture taught him to fear that he’d make a mistake and a guilty defendant would go free to wreak havoc on society. That fear constantly colored his assessment of legal issues.

As a prosecutor, he was responsible for what may happen if he failed to convict people. The fate of their future possible victims fell squarely on him. That fear colored his evaluation each time he assessed whether an action would violate a defendant's rights.

When Americans think about criminal defendants' constitutional rights, they might consider the Bill of Rights in the abstract, but they're more powerfully moved by decades of Dick Wolf's Law & Order series and its spinoffs and imitators. Those programs occasionally show a bad cop or a rogue prosecutor or an innocent man railroaded by a dirty prosecution. But those are the exceptions. The overwhelming cultural message from American entertainment is that constitutional rights are barriers to justice—tactically erected impediments that the forces of law and order must overcome to reach resolution in 52 minutes.

Real prosecutors watch TV too. They work in the nation that portrays their duties that way. And they enjoy the benefits. One of the first things they told us as rookie prosecutors was that we couldn't use our credentials to get special treatment: no flashing that seal to get into a restaurant or out of a parking ticket. They had to tell us that because it worked—because the culture teaches the public to admire and trust prosecutors. Like most defense attorneys with his background, he markets to potential clients as a "former federal prosecutor." He doesn’t do that to signal loyalty to his old office or as a show of admiration for it. He does it because it's good for business. Thanks to the culture, it makes potential clients charged with crimes trust him more.

The Specter of Justice

Even as Americans are facing the ruination of their lives at the hands of prosecutors, even when they're innocent, even when they're mistreated by the government, they're still skeptical of defense lawyers and trusting of prosecutors. They prefer to hire a former federal prosecutor because they don't want to think of themselves as someone who has to hire a criminal defense lawyer. That's the power of culture. American culture relentlessly tells prosecutors that they are by definition the good guys. It tells them that assertions of rights are, at best, impediments to be overcome and, at worst, cynical ploys by villains. It is tremendously difficult to ignore those cultural messages and give defendants' constitutional rights the attention they deserve.

Should prosecutors be able to resist office culture and American culture to uphold their oaths to defend the Constitution? Yes. But there's an insidious third influence on them—the very law we want them to uphold. American criminal procedure encourages prosecutors to argue that rights are irrelevant. The argument goes by genteel names like "harmless error" and "lack of prejudice" and "immaterial," and it is omnipresent in modern criminal procedure. As a prosecutor, it was his job on dozens of occasions to invoke those doctrines to assert that even if defendants' rights were violated, those violations didn't matter.

Take search warrants, for example. Under most circumstances, the Fourth Amendment requires police to get a warrant before they forcibly enter your home to search it. May police officers lie to the court to get that warrant or deliberately omit information that contradicts the evidence they offer? “No,” says the Supreme Court—that would violate your rights. But the violation only has a remedy if the lie is material—that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. If you identify a lie that's immaterial, you're not even entitled to a hearing on whether it's a lie in the first place.

So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn't matter, that the evidence was strong enough without it to get the warrant. The prosecutor will be making this argument in the context of a search that produced incriminating evidence (the defendant wouldn't be making the argument if it didn't), which tends to bias judges towards upholding searches. After all, the judge thinks, “Wasn't the cop's suspicion proved right?” Moreover, probable cause—the proof necessary to support a warrant—is a very relaxed and inherently subjective standard, requiring only a "fair probability" that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it's a prosecutorial duty to think of ways to explain how those lies are irrelevant.

Cognitive Dissonance

On the other hand, prosecutors are encouraged to think differently about lies by mere civilians. If federal agents lie about you to the court to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents and you’re not Hillary Clinton or someone else with political power or influence, the standard is far less forgiving. The materiality of a false statement to the federal government is measured by whether it is the sort of statement that could hypothetically have influenced the government's decision-making, not whether it actually did. Thus, prosecutors are trained to treat defendants' wrongdoing harshly and government wrongdoing leniently.

Nearly every type of law enforcement misconduct presents a prosecutorial opportunity—an obligation—to argue that the misconduct doesn't matter. For instance, prosecutors are obligated to turn over exculpatory evidence. But when they don't, a defendant is only entitled to post–conviction relief when the failure is prejudicial—that is, when there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Prosecutors are therefore encouraged to view exculpatory evidence not as something that should be turned over categorically, but as something that should be turned over if the prosecutor thinks it will be important to keep any resulting conviction from being successfully appealed.

Sometimes that approach is even put in writing. In 2012 the American Civil Liberties Union sued the Los Angeles County District Attorney's Office over its "Special Directive 10-06," which encouraged deputy district attorneys to make their own assessment of whether exculpatory evidence was "material" and withhold it if they thought it wasn't. The Directive even categorically excused prosecutors from turning over some evidence—for instance, by maintaining that evidence of police misconduct need not be disclosed if it was still under investigation.

This dismissive attitude towards rights continues on appeal. When prosecutors engage in misconduct, courts ask whether or not it was harmless—that is, whether "it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial." Once again, the prosecutor's job encourages them to argue that their misconduct and the misconduct of their colleagues didn't matter, that is, it didn't impact the outcome.

The same reasoning taints prosecutors' approach to defense attorneys. Criminal defense attorneys are supposed to vindicate their clients' rights. But fighting for a client's constitutional rights takes time and energy and meticulous attention. Lucky defendants can pay for attorneys who can devote that time and energy. Most defendants aren't that lucky. They have to rely on a system of overburdened and underfunded public defenders who cannot possibly exercise the level of vigilance necessary to police the police in every client's case. So, they miss things. If an appellate lawyer discovers a violation of rights that the trial lawyer missed, that person must argue that the constitutional error was plain—that is, that the error affected the "fairness, integrity, or public reputation of judicial proceedings" that a "miscarriage of justice" would result unless the conviction is overturned. Prosecutors, on the other hand, must defend their convictions by arguing that any particular violation of rights wasn't "plain," that it didn't impact the fairness or integrity of the proceedings. In other words, they're duty-bound to argue that the violation of rights, if it occurred, didn't matter.

Of course, a defendant can challenge a conviction on the grounds that his or her attorney was ineffective in failing to recognize and challenge a violation of constitutional rights. That's common in habeas corpus motions. But showing ineffective assistance of counsel doesn't just require a demonstration that a lawyer's efforts fell below professional standards. A defendant must also show that the failure caused prejudice—that it was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." So once again, a prosecutor responding to an ineffective assistance of counsel challenge to a conviction must assert that the unredressed violation of rights just didn't matter.

Lawyers shape arguments, and arguments inevitably shape lawyers. A persistent professional obligation to argue that violations of constitutional rights don't matter can't help but influence how prosecutors look at rights and treat them. So instead of serving as the rules of the game, the underlying assumptions about how a case should proceed, rights become something to be managed and minimized. They become merely rhetorical, figures of speech rather than principles.

The Lone Renegade

Culture has deep roots, but it can change. There's been a recent surge of attention paid to prosecutorial misconduct. Alex Kozinski, a maverick judge on the United States Court of Appeals for the Ninth Circuit, has sparked a judicial and academic movement to scrutinize prosecutors and impose previously rare consequences for their violations of defendants' rights. Judge Kozinksi and others like him have refused to accept the status quo of broad deference to prosecutors as the way the American criminal justice system ought to work. Some prosecutors—usually in progressive enclaves—have begun to talk openly about reforming their offices and taking methodical steps to respect defendants' rights. The America media, never before a reliable ally of defense attorneys, has begun to cover prosecutorial misconduct with the sort of tenacity it requires.

It’s great that more prosecutors are facing serious consequences for violating the rights of defendants. It’s necessary when jurists like Judge Kozinski names and shames them in the public record. It’s important to see the media view prosecutors as an institution requiring scrutiny rather than as a source for tips and quotes. These are positive developments.

But prosecutorial misconduct is a problem that won't get better because a few judges or a few reporters talk about it. It will require effort. It will require principled prosecutorial supervisors, people external to and uninfluenced by the system, to set an example and frame constitutional rights as the rules, not the obstacles. It will require American citizens to take civil rights seriously—to frame our views of them based on the Constitution and not based on a popular culture that scorns them. It may even require us to reevaluate how our legal system treats violations of rights and develop a doctrine more sophisticated than "no harm no foul." Culture permitted America to develop the notions of personal liberty and the rule of law in the first place. Culture redeemed can protect those notions again.