The Department of Injustice |
Photograph Source: ajay_suresh – CC BY 2.0
Today, it would be nearly impossible to overstate the extent to which justice for the criminal defendant in the U.S. has been compromised by prosecutorial misconduct of the most serious kinds. A growing body of evidence from journalistic investigations, scholarly studies, and reports from civil liberties groups reveals a startling pattern of serious misconduct, lack of transparency and accountability, and politicized and racialized enforcement.
At the center of this system of injustice and impunity is the Department of Justice. Prosecutors, especially in the federal government, wield immense power and exercise broad discretion. In criminal litigation, the government has a host of tools that are unavailable to others and that far overshadow the Bill of Rights in terms of their practical importance to real-world outcomes.
But the immunity shielding the misconduct of prosecutors is extremely strong, meaning that practically speaking there is almost never accountability for prosecutorial misconduct. For example, they have absolute immunity from civil claims for all actions undertaken in their role as advocates. Though they are some of the most powerful and respected people in the legal system, there is almost nothing federal prosecutors can’t get away with under the prevailing system of immunity. Americans accept this patently unjust system mostly unconsciously—that is, because they don’t know and it doesn’t affect them. Indeed, even our liberals rush to the defense of this malignant institution.
The DOJ is arguably alone among federal agencies in its degree of opacity and in its lack of accountability: it is the only federal government body whose inspector general is not permitted to investigate allegations of misconduct by its lawyers—an explicit exception mandated by federal statute. While the DOJ houses an Office of Professional Responsibility, lack of transparency is its official policy, as it “does not include names or personal identifying information in the summaries of its investigations.”
One of the most frequent and persistent themes of the literature of prosecutorial misconduct is the illegal and unethical withholding of exculpatory evidence. Under the Supreme Court’s decision in the 1963 case Brady v. Maryland, the government must share evidence tending to show the innocence of the accused. In Brady, the government intentionally withheld an extrajudicial statement given by a companion of the defendant, in which the companion admitted to the killing at issue in the case. The defendant was sentenced to death.
The Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” But today, Brady violations are practically ubiquitous in the system and almost always go unpunished. Many of these violations have cost innocent people decades of their lives, and some defendants have paid the........