The Decline of Prosecutorial Ethics

When DNA identification became available for forensic use, the police and prosecutors loved it, while the defense bar kicked and struggled to keep it out of court as unreliable. I remember my disgust at the Luddism, or pretended Luddism in the interest of keeping guilty people on the street, of the ACLU and the National Association of Criminal Defense Lawyers.

Update and (probable) correction A reader more expert in these matters than I recalls things differently. In his version of the story, which is presumably more accurate than mine, the defense bar’s objections about validity were well-supported factually, and the result was to impose scientifically defensible standards both about how the evidence was to be gathered and analyzed and what testimony could be offered based on it. I’ve asked him for documentation, but my reader is someone I’ve known for years, and I’ve never known him to talk through his hat, so I offer a (provisional) apology to the ACLU and NACDL.

Fortunately, the prosecutors won and the defense bar lost, and the use of DNA evidence is now routine. Naturally, just as the civil-liberties types asserted at the time, some of what comes in to court as DNA forensics turns out to be garbage science offered by incompetent or unduly complaisant technicians, but on balance DNA evidence has been bad for the guilty and good for the innocent.

As a result, some of those innocents, who had previously been convicted, are now being sprung, though in almost all cases with no, or negligible, compensation for the wrong done them.

[The high rate of demonstrated innocence in some categories of cases, especially stranger rapes, ought to have led to more soul-searching than it has about the reliability of the eyewitness identifications and jailhouse-snitch testimony that almost invariably “proved” that someone was guilty whom we now know, more or less for certain, wasn’t.

[It’s my guess that about 2% of the people sent to prison actually didn’t do the act they were convicted of having done. That’s about 10,000 people a year. Now a 98% specificity rate in a process run by human beings isn’t too shabby, but that’s still a lot of ruined lives. There’s always some sort of tradeoff between crime prevention and accuracy; the only way to never punish an innocent person is never to punish anyone at all. But we could keep the prisons full if we only imprisoned those actually known beyond reasonable doubt to be guilty, and in my view the crime-control losses incident on tightening up somewhat on the standard of proof would be slight.

[One way to think about it is that we can take some of the gains from new technology in the form of reduced risks of convicting the innocent, even as we take most of them in the form of improved chances of catching the guilty. In some instances, such as photo lineups, current practices are known to produce more identifications than alternatives, with the difference consisting almost entirely of false positives. [*] Where the police won’t make the necessary changes, it’s up to the prosecutors to pressure them by announcing in advance that after some date they won’t offer evidence not gathered in the most reliable way.]

Now that the positions are reversed, it’s the defense bar yelling for the right to reopen old cases on new evidence, and the prosecutors — in most cases, prosecutors who offered inferior-quality biological forensics at trial and used them to help get convictions — screaming “finality of verdict” and fighting as hard as they can to keep innocent people locked up. [*]

What most non-participants don’t understand about the criminal law is that an appeal isn’t supposed to be a fresh review of the evidence: it’s almost exclusively about errors made at trial. As a matter of law, the fact that someone convicted in due form is factually innocent of the charge is not, in general, a reason to let him out of prison. (Justices Scalia and Thomas have argued [*] that the execution of a factually innocent person would not constitute a Constitutional violation.) So the ability of demonstrably innocent people behind bars to have their cases reopened depends on state law and state rules of criminal procedure, and the prosecutors have had considerable success in opposing such attempts both in the legislatures and in the courts. (Most horribly, some states explicitly allow police to destroy the evidence after some period; the proof of innocence in some case may be literally going down the drain as I write.)

While I thought the defense bar’s earlier position outrageous, the prosecution’s current position is incalculably worse. It should go without saying that keeping innocent people in prison is not a means of crime control. Of course, any organization hates to admit error, but this reflects something uglier: the degeneration of the traditional prosecutor’s ethic, which held that “the government wins its case whenever justice is done,” into a merely adversarial, notches-on-the-belt mentality. No doubt the rightward swing on criminal justice issues, combined with the fact that District Attorneys are elected, has something to do with it. But that doesn’t make it one whit less disgraceful. No self-respecting prosecutor should ever tell a court, “We think it’s not quite certain that this person is innocent, so we propose to keep him in prison.” (What’s really amazing is that the victims and their families as often as not want to keep the matter “closed,” as if having the wrong person punished were a pretty good substitute for having the right person punished.)

In addition to being disgusting, prosecutorial stubbornness about freeing the wrongly convicted gives the rest of us a really bad message about the ethical standards prosecutors operate on in other domains. In the post-9-11 world, there is a genuine need — not as big a need, perhaps, as John Ashcroft would have you believe, but a genuine need nonetheless — to rethink some aspects of the criminal process in terrorist-related cases. Inevitably, that means giving prosecutors more power, and thus putting more trust in them. This is, therefore, an especially bad time for them to be acting in an untrustworthy fashion.

I’d like to hear some career prosecutors — a group that includes some of the finest human beings I have ever met — speak out more loudly on this topic.

Update: More here [*] from TalkLeft.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: