Prosecutorial Accountability 2.0

By Green, Bruce; Yaroshefsky, Ellen | Notre Dame Law Review, November 2016 | Go to article overview

Prosecutorial Accountability 2.0


Green, Bruce, Yaroshefsky, Ellen, Notre Dame Law Review


4. Prosecutorial Self-Regulation

In recent years, the U.S. Department of Justice has responded to regulatory reform efforts through the exercise of self-restraint in various areas. To blunt reform efforts following the Ted Stevens case, the Department revised internal policy on discovery and appointed an official responsible for training and self-regulation specifically with respect to this subject. (184) Additionally, when bar associations and allied organizations challenged federal prosecutors' practice of pressuring corporations to disclose attorney-client privileged information to obtain prosecutorial leniency in cases of corporate wrongdoing and legislators contemplated curtailing prosecutorial authority, the Department responded by revising its policy to restrict the practice. (185) Most recently, as noted, the Department responded to an adverse state court opinion by resolving not to seek ineffective assistance of counsel waivers anywhere in the country. (186)

State and local prosecutors similarly have responded to regulatory pressures by adopting self-restraint, (187) or even by accepting or supporting external restraint. (188) Some state prosecutors' offices have adopted best practices manuals and enhanced discovery training. (189) It appears that some are acknowledging the need to strengthen internal discipline. (190)

Perhaps the most significant internal prosecutorial reform at the state level, responding in part to the shifting attitudes toward prosecutorial accountability, is the advent of conviction integrity units (CIUs) and the direction of their efforts at preventing, not merely correcting, wrongful convictions. (191) The first unit, established in Dallas, Texas, by District Attorney Craig Watkins, was a highly publicized success story. (192) As of March 2015, eighteen jurisdictions had followed suit. (193) At least in Manhattan, the CIU is not limited to reviewing past convictions but also examines causes of, and remedies for, wrongful convictions. (194) Others have the similar potential to develop robust practices and procedures to prevent wrongful convictions. (195) The effectiveness of CIUs is still an open question, but in establishing them, and particularly in assigning them to develop internal procedures to make prosecutions more reliable, prosecutors implicitly acknowledge the need to address aspects of prosecutorial conduct systemically.

III. FIVE SOCIAL CONDITIONS, AND ONE CATALYTIC MEDIUM, FOR THE NEW PROSECUTORIAL ACCOUNTABILITY

There is probably no single reason why public and judicial attitudes toward prosecutors' conduct are evolving. But we suggest that five interrelated social conditions help account for the changes, sparked by a catalyst: information technology. The first Section in this Part discusses the relevant social conditions and their relative importance, while the following Section describes the significance of information technology as the medium that broadened public understanding and facilitated a reform movement directed at prosecutorial accountability.

A. Five Conditions for the Evolution of Prosecutorial Accountability

The persistence of prosecutorial misconduct is a sine qua non for the new prosecutorial accountability, but we do not agree with those who posit that there is greater public and judicial concern because there is more prosecutorial wrongdoing. We identify four additional sets of conditions that help explain the rhetorical and regulatory shifts: the broader public awakening to injustices in the criminal justice system; understandings, in particular, regarding wrongful convictions, including the responsibility of prosecutors' conduct; expanded academic attention to prosecutors' conduct, drawing particularly on social science insights into systemic deficiencies; and, most importantly, a burgeoning criminal justice reform movement that has included prosecutorial misconduct on its agenda.

1. …

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