Mimesis Law
15 October 2019

Making Bad Prosecutors Felons Is A Bad Idea

August 16, 2016 (Fault Lines) – Prosecutorial misconduct is always a fun subject. Who doesn’t like getting fired up about some evil government lawyer hiding evidence that sends an innocent man to jail for years? From Fault Lines to popular culture to federal courts of appeals, it’s a great story.

Orange County, California has caught a good deal of the flak from this new interest in how citizens are sent to prison. Based on recent events, they probably deserve it. The Orange County District Attorney’s Office seems like the poster child for prosecutorial misconduct. And the State of California is responding.

According to the Orange County Register, a new bill winding its way through the California legislature is aimed at fixing this problem once and for all. How? By making the withholding of evidence or falsifying evidence … a felony!

“As a member of the Assembly’s Public Safety Committee, I believe that accountability for California’s prosecutors is critical to ensuring that justice in our courts is truly served,” [San Fernando Assemblywoman Patty] Lopez said Wednesday by email.

The bill is scheduled to go before the Senate Appropriations Committee Thursday. It would boost penalties to between 16 months and three years for prosecutors who violate the law. Current statutes make it a misdemeanor for anyone to withhold or falsify evidence, while law enforcement officers can be charged with a felony.

It’s not just the Orange County DA who triggered this movement. The problem has been growing in California for a while, and it sounds like a real contributing factor is that no one seems to care.

A 2010 study by Santa Clara University School of Law looked at misconduct statewide, concluding: “Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it…The problem is critical.”

Well, if nobody gives a damn about something, the best way to make them care about it is to make it a felony. Crime fighting is all about upping the punishment. Time and time again, we have seen that increasing the severity of punishment is what solves crime. Making something a felony almost always guarantees it won’t happen anymore.

Just kidding. Read the links. This is a stupid idea. It’s not going to fix prosecutorial misconduct. In fact, it will probably have the opposite effect.

Here’s a secret. Not too many criminals engage in a risk-reward analysis before they commit their crime. If they did, they probably wouldn’t commit the crime. It’s not nearly as profitable as the movies make it out to be.

This terrible idea is another step in our country’s insistence on prosecuting every problem away. Whether it’s bad parenting, or bad kids, or bad prosecutors, we just toss the criminal justice system at it and fix the problem. Then when that doesn’t work, we increase the punishment. And when that doesn’t work? We turn a blind eye to it and keep plugging away. The solution just has to be as simple as more jail.

Prosecutorial misconduct is a complex problem. And like Mencken said:

For every complex problem there is an answer that is clear, simple, and wrong.

Exactly what will making prosecutorial misconduct a felony do? You are going to take someone who has so little respect for the criminal justice system they will cheat to get a win, and turn them over to that very same system to teach them a lesson? And make them a felon? How exactly will that work to stop anything?

This law won’t change a thing. Right now, if any lawyer were to falsify or hide evidence, they are in for big trouble. Purely based on the laws and rules we already have, they are subject to discipline up to disbarment. It also sounds like they could already get arrested in California for a crime. It’s just going to now be a more criminal crime, the dreaded “felony.”

If this was a solution, it would already have worked. Who cares about being a felon compared to losing a law license? Your whole livelihood can be taken away. That might actually have some deterrent effect, and it would definitely send a message. And that is already an existing punishment. One that would work, because the best solution to bad prosecutors is to keep them out of the courtroom.

But like the language from the 2010 Santa Clara study says, the problem is bigger than the actual misconduct. It’s the reaction to it. In California, courts have a statutory obligation to report misconduct. In every state, all lawyers, including judges, have an obligation to report misconduct. But no one does. Because no one cares.

The biggest illusion of the criminal justice system is that it exists to protect the rights of defendants. Lawyers who don’t practice there think it’s easy, because the criminal gets all the breaks. Regular people know it’s unfair, because criminals are constantly getting away on little technicalities. The whole system is set up to make sure law enforcement jumps through a bunch of stupid hoops called “constitutional rights” before an evil predator can be locked away forever. It’s shocking anybody ever gets convicted.

Except its nothing like that. The system is actually set up to shuffle people off to jail with as little societal guilt as possible. Who really needs to worry if the wrong guy got imprisoned, as long as we had a pretty trial with a real judge and a real jury and evidence and stuff?

That trial is probably not as fun as it sounds. Judges rule against defendants at every turn, lest those defendants buy into the illusion a trial is a good option for a lowly criminal.

Prosecutors commit misconduct because they can.* They believe they are doing the right thing. They believe they know better than everyone else. And when they get caught, it doesn’t matter because the defendant was probably guilty anyway.

So why are those judges that doing anything about misconduct? Do you really think they are going to start reporting their courtroom buddies to the felony squad? Let them catch a few years in the state prison system for doing God’s work? Of course not.

Until the courtroom referees start reporting bad lawyers to the state ethics authorities, and those authorities start treating a prosecutor like any other unlucky lawyer who finds themselves in the crosshairs of the lawyers’ disciplinary counsel, this problem won’t go away.

Criminal laws have yet to be the answer to any real problem in our culture. They haven’t fixed the drug problem. They haven’t stopped the fraudsters from ripping us all off. They haven’t stopped violence. And they surely aren’t going to stop bad prosecutors from doing bad things.

* Some people will be pissed I left off the disclaimer about “this applies to some prosecutors” or “not all prosecutors are bad.” See here. Or here.

20 Comments on this post.

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  • bacchys
    16 August 2016 at 12:18 pm - Reply

    Prosecutors who engage in misconduct right now aren’t in big trouble if caught. The worst punishment handed down to a prosecutor for knowingly concealing exculpatory evidence was five days in jail and disbarment- and that didn’t happen until he was already a retired judge.

    The incentives all run in the direction of encouraging trying to game the system to get convictions. That’s why it’s a problem.

    This might not be the best solution, but at the least we could hope it’s a step towards increasing the risk of engaging in misconduct. Personally, I’d even drop the mens rea requirement. At the least, it might subject some of that corrupt class to the same kind of problems they inflict on the rest of us.

    • Josh
      16 August 2016 at 12:26 pm - Reply

      So what you are saying is that right now, prosecutors do not get in trouble because the available punishments are not being used. Yet, if we add another punishment, that also won’t get used, and that will somehow fix things?

      Then you cap it off by saying we should criminally prosecute someone who did not intend to commit a crime, because that is how we get treated? If we cannot make the system fair, screw it, we will just make it unfair for everybody?

      I think you need to read through all of the archives here at Fault Lines. See if maybe you can figure out why your comment is so frustrating to me.

      • Liz W
        16 August 2016 at 2:34 pm - Reply

        We definitely need an aggressive prosecutor to go after bad prosecutors in order to make an idea like this work, but that’s no reason to reject it.

        The simple fact is that prosecutorial misconduct is one of the things that harsh penalties will curb. As it is, there is no incentive to follow the rules. You cheat, you win, you get promoted. If you get caught, it’s almost always years after the fact, and they will suffer nothing more than a bruised ego, and a tepid rebuke from an appellate court.
        Now a felony on the other hand, is basically the end of the world for a prosecutor (any lawyer really). With a law like this on the books, dicking around with Brady suddenly becomes much less tempting. It would almost certainly curb routine misconduct (if enforced).

        I have some ideas on enforcement as well, appoint cranky defense attorneys as prosecutors for these cases. I’m sure there’s no shortage of ex-public defenders that would be glad to make an ADA sit in the defendant chair.

        • Josh
          16 August 2016 at 3:45 pm - Reply

          I would completely agree with you, if not for one tiny thing. Increasing the seriousness of an offense has almost no deterrent effect on crime. Why don’t you check out the links to the studies? I swear if you would all just read those the article would become so much clearer.

          • Liz W
            16 August 2016 at 4:57 pm -

            That’s bollocks.

            Prosecutors=\= general population.
            Brady violations=\= most crimes

            Your links cite substance abuse, not believing they’ll be caught, and not knowing it’s against the law. Only “expecting to get away with it”is applicable to prosecutors (which is why this law was proposed). Also, prosecutors commit misconduct to serve a long term goal (as opposed to the short term thinking in most crimes), they commit misconduct in order to secure convictions, they rack up convictions to enhance their status. If they knew (and they most certainly would) that being caught just once would be the end of their career, the total derailment of the life they were trying to build, they aren’t likely to do it routinely.
            I suppose that last criminal motivation would a crime of passion. And I’d love to see that argument “In the heat of passion for justice, I repeatedly buried the lab results that disproved y entire case.”
            So the normal arguments against deterrence fundamentally don’t apply.

            Also found this gem in your link

             Daniel Nagin and Greg Pogarsky, leading scholars on deterrence, conclude
            that “punishment certainty is far more consistently found to deter crime than
            punishment severity, and the extra-legal consequences of crime seem at least
            as great a deterrent as the legal consequences.”7

            They aren’t facing consequences as it stands. Period.
            These are people that know the long term consequences of a felony conviction, and if that doesn’t straiten them out, nothing will.

        • Chris
          16 August 2016 at 8:05 pm - Reply

          I think that we are talking about going after someone with the apparatus of the state when you actually know they are NOT guilty, and going forward anyway, suggesting a felony.

          Not Brady violations. Brady violations can be lots of things. It can be materials that the prosecutors reasonably believe are not legally Brady, but the defense would disagree. Or things that are technically in possession of “the state” but the prosecuting agency itself really has no idea of.

  • jdgalt
    16 August 2016 at 12:43 pm - Reply

    Thank you for the info. The bill is AB 1909, and I’m going to be asking my member to support it.

    You do point out one shortcoming — victims of this kind of crime by prosecutors need the right to prosecute the cases themselves, because other prosecutors aren’t going to want to. Still, every diminution of immunity is a step in the right direction. No one must ever be above the law.

    • Josh
      16 August 2016 at 12:50 pm - Reply

      Well…looks like that one flew right over your head. Hopefully your “member” has more sense than you do.

  • Chris
    16 August 2016 at 3:17 pm - Reply

    Most of that misconduct is already arguably criminal. Fabricating or tampering with evidence, civil rights violations under color of law etc. If prosecutors or cops who intentionally railroad people go down HARD it would send a message and help improve trust and confidence in the system.

    We don’t question the need for laws covering things like “stealing,” “rape,” and “murder” just because those things still happen.

    Your bottom line is very flawed because you suggest that by having criminal laws we aren’t solving any problems. This is, I just can’t even. Are you suggesting that we would be better off in a state of anarchy than with a less than perfect justice system? Then I would suggest you are naive and short sighted and are blind to not only history but plenty of contemporary examples of places where basic law and order does not exist.

    • Josh
      16 August 2016 at 3:27 pm - Reply

      Nothing I wrote is flawed. You just don’t get it.

      I never said we should exist in a state of anarchy. I said we do not need to try to address every problem with a criminal law.

      Here is an exercise, though I will probably come to regret it. Give me an example of problems in history that were solved by overcriminalizing behavior. Tell me what has been prosecuted into oblivion.

      Keep in mind, I never argued there should be no criminal laws. So if that is part of your premise, read the article again. If its still not clear, hey, the law is not for everybody. No shame in that.

      • Chris
        16 August 2016 at 4:12 pm - Reply

        Ok I’ll accept your clarification of this statement: “Criminal laws have yet to be the answer to any real problem in our culture.”

        According to NHTSA we made a really good dent in traffic fatalities by getting tough on DUI, distracted drivers, and speeding. So in the case of DUI, the both a shift in cultural attitudes and in law enforcement, we removed traffic fatalities out of the top ten causes of death.

        http://www.nhtsa.gov/About+NHTSA/Press+Releases/2015/2014-traffic-deaths-drop-but-2015-trending-higher

        • Josh
          16 August 2016 at 4:30 pm - Reply

          No dice. The correlation between stricter DUI laws and DUI deaths is all over the board. In other words, stricter laws don’t help. The existence of a law may have some deterrent effect, but the severity does not. That is the point of the post.

          I agree you picked out one line that, in a vacuum, might make it sound like I said we should not have any laws. But I am pretty sure if you read the other 1000 words, you can see that is not the point of the post.

          • Chris
            16 August 2016 at 6:40 pm -

            Well, yeah. By strict enforcement or getting tough it doesn’t necessarily mean more days in jail and higher fines or whatever upon disposition (except that the calculus changes with repeated offenders). But the likelihood of getting caught plus the certainty of some substantial consequence when you are, across the states, has made a difference.

      • SPM
        16 August 2016 at 4:57 pm - Reply

        Kidnapping for ransom.

  • Josh
    16 August 2016 at 5:21 pm - Reply

    Oh come on. Surely you are not this dense. Where in my post do I say prosecutors should not be punished? Where in any post have I ever said that?

    We have ethics punishment for lawyers, including prosecutors, who break the rules. In the article, and in others I have written, I talk about the real cause of prosecutorial misconduct. No one cares to them.

    How exactly is a felony charge going to address this problem? Just answer that. What makes a felony criminal charge the magic solution?

    • dm
      17 August 2016 at 12:55 am - Reply

      Why the hell does the potential of a felony conviction have to be “the magic solution?” If it’s simply one more arrow in the quiver that might be used against prosecutors who engage in this variety of misconduct then it serves a legitimate state interest. You fail to muster even a single legitimate argument as to how making this type of misconduct a felony is going to make things worse.

  • Amanda Byrd
    17 August 2016 at 11:17 am - Reply

    If judges and prosecutors were held to account for their transgressions, you would get better judges and prosecutors. Judges would actually read briefs, and prosecutors would actually turn over exculpatory evidence. Oh, the humanity!!!

    The way to fix this is to restore the ancient right to private criminal prosecution. Bar and judicial discipline is in the hands of “The Club,” and is therefore feckless. Giving aggrieved the power to right wrongs will restore the rule of law.

  • Peter Gerdes
    22 August 2016 at 12:51 pm - Reply

    “Criminal laws have yet to be the answer to any real problem in our culture”

    Actually, they seem to have worked pretty well for murder, burglary etc… They never totally eliminate a problem but there are plenty of situations where the threat of punishment creates a massive deterrence effect. The fact that criminals generally don’t engage in a rational cost-benefit analysis (if true…I’m skeptical) isn’t the right question…it’s whether people who might otherwise *be* criminals engage in this analysis and decide to avoid certain behavior.

    As you admit prosecutorial misconduct is very rarely reported or pursued. Standard theories of deterrence would tell us that this means we need to make the punishment exceptionally severe to effectively deter this behavior. Let’s try to take this seriously and make the penalty for knowingly failing to turn over brady materials or the like punishable by up to 20 years in prison. Sure, it will rarely if ever happen but the mere possibility will encourage many a prosecutor to make different deciscions.

    Sure, the prospect of losing one’s law license is scary but it rarely happens and the cost of not crossing the line in a high profile case may well be practical career suicide, e.g., if you have to cross your supervisor to meet your ethical obligations. A very small chance at losing your law license can be easily balanced by an almost certain chance of currying favor with powerful important people and increasing your reputation.

    Maybe no one will actually be convicted under such a law but it can still be used as a threat to force plea deals, admissions of misconduct and other important results. At the very least it makes prosecutors more acutely aware of the kind of pressure they are placing on defendants.

    —-

    Having said all this I do think there are reasons to be cautious about such laws. As experience with child molestation should have taught us severe penalties can discourage reporting. Prosecutors, more than anyone, should be aware that the system can railroad the innocent and might be reluctant to report their colleagues if they feel a small error in judgement could lead to prison time.

    Luckily, I think we can kill two birds with one stone. Make intentional violations of the defendants rights by the prosecutor punishable by prison *only if* such violations aren’t reported to the court within a certain timely fashion. This would encourage colleagues to snitch on fellow prosecutors while being able to tell themselves it is for their colleagues benefit.

    • Josh
      22 August 2016 at 1:10 pm - Reply

      Wow. Replace “prosecutorial misconduct” in your comment with “drug trafficking” and you could be an early adopter of the War on Drugs. You even encourage snitching…

  • Brady Is About More Than Prosecutorial Misconduct
    23 August 2016 at 9:16 am - Reply

    […] August 23, 2016 (Fault Lines) — As you may have noticed, there are not a lot of prosecutors around here. To the credit of the Fault Lines, someone like me, who is from the other side, is allowed to play in the same sandbox as criminal defense attorneys. As a result it’s often lonely, but occasionally a wayward criminal defense attorney decides to stick up for prosecutors here. Josh Kendrick did just that with his piece entitled “Making Bad Prosecutors Felons Is A Bad Idea.” […]