The title is a little simplified because this post is not just about prosecutors who lie. It’s also about those who hide exculpatory evidence and get witnesses to lie.
The proposal is this: Any prosecutor who does this should be charged with a crime and the penalty should be equal to the penalty that the judge has imposed on the defendant. The one exception is when the judge has imposed capital punishment. In that case, the penalty for the prosecutor should be life in prison without the possibility of parole.
This should be so even if it can be shown that the defendant was guilty.
Prosecutors today have little fear of going to prison for a long time for lying, withholding exculpatory evidence, or getting witnesses to lie. If they knew that they had some reasonable probability of getting caught and severely penalized, they would clean up their acts.
Will there be downsides? Sure. What if, for example, the jury finds that the prosecutor accidentally withheld evidence? But there’s a solution for that. Go back to the old mens rea criterion. The prosecutor has to be shown to have had criminal intent.
Will there nevertheless be cases where a jury finds criminal intent where there wasn’t? Yes. It will probably be rare and one thing that will make it rare is that prosecutors will be on the ball to make sure any exculpatory evidence, for example, is revealed and to make sure that they don’t coach witnesses to lie.
If you’re tempted to argue that this is a bad idea–and I’m sure some people will–before you write your argument, see if it would apply also to the problems with our current system where innocent people often face harsh punishment.
HT2 Thomas Nagle for previous discussions.
READER COMMENTS
Colin
Feb 22 2019 at 8:42pm
who prosecutes the prosecutors?
BW
Feb 22 2019 at 8:43pm
David, how would you judge which evidence would have been exculpatory, had it been revealed?
David Henderson
Feb 22 2019 at 8:55pm
Good question. I think a jury would have to decide.
Phil
Feb 25 2019 at 6:10pm
The current legal standard is whether the evidence would have a material effect on the outcome. In other words, if that withheld evidence would be enough (in the context of all other evidence) to create a reasonable doubt.
john hare
Feb 23 2019 at 5:49am
I like it. Just need to make sure that the agency investigating the prosecutors is not part of the same organization as the ones investigated. IMO a lot of the people that should be checked out aren’t due to conflict of interest. “We look out for our own” is fairly normal in many professions. Doctors, lawyers, and police being the most obvious at having to be way over the line before action is taken.
Mike Davis
Feb 23 2019 at 8:47am
I like it, but there’s a big problem. If you use criminal law to deter misconduct, you’re depending on the same culture and institutions that gave rise to the bad behavior to enforce the sanctions intended to deter. Foxes do not make good henhouse guards.
Why not instead beef up civil sanctions? I could see, for example, allowing some variant of treble damages and/or making it clear that an egregiously bad actor risks all of his or her assets. This creates strong incentives for plaintiff’s lawyers to specialize in searching for prosecutorial misconduct and bringing these kinds of cases. Of course you’d have to do this carefully since you don’t want to create incentives to bring false evidence into a civil proceeding—maybe an English rule where the loser pays all attorney fees could be a good idea for such cases. (Actually, I think it’s a good idea in a lot cases but that’s a different topic.)
(Note: John Hare and I are pointing out the same problem.I like my solution better only because I think it would be really hard to embed a truly impartial enforcement agency within the prosecutor/police culture.)
Ray
Feb 23 2019 at 10:23am
I’ll take a shot at making the contrary case.
First, some preliminary assumptions:. You have to accept as a given that the public benefits from having high-quality, skilled prosecutors working for the government. Proof “beyond a reasonable doubt” is a (justifiably) high standard. If only low-quality attorneys can be found to fill those positions then criminal activity will increase (including “real” crimes that even libertarians dislike, such as robbery, assault, etc). I think this is an obvious outcome given that low-quality prosecution means that more criminals who did commit the crime will not be successfully prosecuted, and at least some other criminals will be aware of, and influenced to commit more crimes, by this fact. Plus, it seems plausible that high-quality prosecutors will be less likely to rely on unethical crutches like lying or concealing evidence.
Ok, so assuming that you accept that high-quality prosecutors are a good thing, the logical conclusion is that we need to balance the need to have prosecutors act ethically with the need to retain good people in those jobs. Thus, skewing that balance too far in the direction of “prosecutors who act badly should go to jail for a long time” should be avoided. That isn’t to say that there shouldn’t be a penalty (and likely higher than it is now). My point is merely that care should be taken as there is a contrary public interest that should be considered.
But here is my main point: Putting prosecutors at risk for going to jail for the rest of their life would discourage almost any high-quality attorney from taking that job. High-quality lawyers have many other employment options (most of which pay more) and none of which involve any significant possibility of jail time without overt criminal activity (embezzlement, etc). David’s proposal would put prosecutors in that risk area based on routine, day-to-day prosecutor activities. Unfortunately, I think the line you are trying to draw goes through a very gray area. Attorneys can’t always know when their witnesses are lying. Attorneys sometimes make mistakes, and all it would take is one mistake, plus one jury believing that it wasn’t a mistake to put you in jail. (I get that all defendants are in that situation, but they aren’t being asked to choose a job that puts them there.)
As a long-time (but now former) prosecutor there is no chance I’d take the job under those circumstances. There is just too much that is outside of my control on a regular basis that a jury could misinterpret as a culpable mental state. If I’m risking going to jail on a regular basis, you better believe I’d want a hell of a lot more than an assistant prosecuting attorney salary.
Richard Wallace
Feb 23 2019 at 3:06pm
Is it the case that high quality prosecutors would be deterred from entering the profession, or is the deterrent effect greater in keeping low quality prosecutors out of it? I assume that low quality prosecutors are the ones who would cheat and withhold exculpatory evidence. I think it is obvious that currently the disincentives are inadequate. In the most extreme cases like the North Carolina prosecutor of the Duke lacrosse players, they lose their job and get disbarred, while monetary damages are borne by the government (or insurance). This compared to charges that could have ruined the lives of a number of young men.
I assume that the same due process that good prosecutors claim results in justice would be adequate to protect prosecutors themselves in the fact-finding of a trial. The question is what consequences are appropriate when a jury has concluded that a prosecutor has deliberately withheld exculpatory evidence.
Ray
Feb 23 2019 at 8:43pm
Like I said, I’m not disputing that more severe penalties should be available in the most egregious cases.
What I have a bigger issue with is your second-to-last sentence where you talk about assuming that good prosecutors should be comfortable subjecting themselves to the same justice system they put defendants through. It’s a good rhetorical point, and appealing on its face, I concede. But I don’t think it holds up.
Think about it: how often do you, as a presumptively law abiding citizen, put yourself one wild-card jury away from going to jail for 15 years? I’d bet it doesn’t happen often. That isn’t to say that juries never get it wrong, but law abiding citizens only find themselves in that situation under extremely unusual or coincidental circumstances (say, using a gun in legitimate self-defense, but the jury not believing you). More relevantly, they generally didn’t choose to risk that situation.
David is asking lawyers to voluntarily choose to be employed under circumstances where that kind of risk would be routine. I think you would have to be crazy to prosecute serious offenses in a police-hostile jurisdiction (as many high-crime cities are).
john hare
Feb 24 2019 at 6:15am
This is a pretty solid argument against. I wouldn’t contract jobs with a prison risk without wildly disproportionate compensation. I would really like to see some mitigation strategy against dishonest prosecutors, cops, doctors, etc.
I believe there is an integrity problem in much of society that falls short of actionable illegality. Filing false insurance claims and injury lawsuits is at the top of my personal list. (If there were no dishonest people, what would dishonest lawyers do for a living?) Construction, auto mechanics, and educators that charge expert prices for non-skilled performance and protected by barriers to entry and ignorance. I could rant on. I would like to see a good and popular strategy to start holding people accountable that doesn’t run into the problem that Ray points out.
Henry
Feb 23 2019 at 11:43am
How common are prosecutorial misdeeds? Are they becoming more common? Our system has been around for nearly a quarter of a millennium and is based on the common law that goes back a lot longer. Like every human endeavor there are failings and room for improvement and tweaking the system, but I think we should be careful. Lots of theoretical improvements turn out to have their own downsides in practice.
Full disclosure: one of my close relatives is a prosecutor who is quite proud of a 100% conviction rate and putting lots of bad people away.
Billy Kaubashine
Feb 23 2019 at 5:45pm
Good idea. But I don’t think the penalty has to be as severe as you suggest in order to accomplish your goal. I’d never accept a job as a prosecutor if I thought that there was ANY risk that a misconstrued error of judgement might put me in prison for life.
The threat of a single year in prison and disbarment would help the bad actors resist temptation in my opinion.
Mark Barbieri
Feb 24 2019 at 6:14am
I’d be happy with far less. I’d be happy starting with any meaningful punishment.
Matthias Goergens
Feb 24 2019 at 9:20am
In addition to coming up with proposals from scratch, you can also look at how other countries work and what laws they have. That’s not foolproof in avoiding unexpected consequences either, of course.
Eg Germany has very different incentives for prosecutors, and hence different prosecutor behavior.
David Henderson
Feb 24 2019 at 2:52pm
Thanks to all above for your thoughtful comments. I admit that I don’t have the slam-dunk proposal or the slam-dunk arguments for my proposal. I do think that some kind of real liability for misbehavior would help, but, as john hare says above, there needs to be some independence and it’s hard to see how you get that.
National Jester
Feb 25 2019 at 4:13pm
Some crimes, such as Worker’s Compensation Fraud here in California, are automatic felonies. Make convictions for prosecutorial misconduct of this nature automatic felonies, with the subsequent loss of the ability to practice Law, or work as a Judge or Prosecutor…for life. You can add fines or jail time. But the loss of the ability to practice your given profession is a fairly good deterrent.
Yaakov
Feb 25 2019 at 5:18pm
this seems to be in accordance with the biblical command that false witnesses should be punished with the same punishment they intended to bring in their false witness.
In patent prosecution there is a requirement to disclose information that an Examiner would consider as relevant. The result is that Examiners are swamped with irrelevant information. I do not know if your rule would have the same effect.
Now all we need to do is find a mouse who can put the bell on the cat’s neck. If the government wanted to stop police violence, they could. They do not need additional laws. The problem is that the government does not care. The chances that a person like me, or my family will suffer severely from police violence is slim, so politicians and government personnel really do not care.
Phil
Feb 25 2019 at 6:57pm
David, while on the subject of prosecutorial misconduct, I would appreciate your perspective on the practice of excluding evidence that was improperly obtained. The so-called fruit of the poisonous tree. Perhaps you have written on this in the past and could just link to it.
While the policy has a deterrent effect on law enforcement officials’ misbehavior, the side effect is detrimental to hearing the truth in court. For policy reasons, a prophylactic deterrent was chosen over a remedy, conceding at the time that the remedy (a lawsuit against the police or prosecutor for a constitutional violation) rarely succeeds, particularly during the Jim Crow era when such rules of evidence were refined.
David Henderson
Feb 25 2019 at 11:13pm
Phil,
It’s a good question and I haven’t written on it. I don’t have a good answer. “Fruit of the poisonous tree” seems too strong but it’s hard to come up with something else that could be enforced.
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