California has just passed, and Governor Brown has signed, a law that will increase penalties to up to three years in prison for prosecutors who either hide or intentionally tamper with evidence that could be potentially beneficial to defendants.  In explaining the rationale for the bill, the chief sponsor, California Assemblywoman Patty Lopez stated, “I hear so many stories about innocent people across California, and across the country, who have been wrongfully convicted….I just hope that when people think the rules don’t apply to them, they will think twice before they abuse their power.”

Prosecutors, some who brazenly and stridently cut corners, withhold evidence, and deliberately mislead jurors, will be held accountable for their actions.  For too long, they have been able to skate by with weak, or no, sanctions applied for serious ethical and legal violations. This bill comes at a time when public recognition of prosecutorial misconduct and overreach is desperately needed.

The National Registry of Exonerations once calculated that 43% of wrongful convictions are attributable to official misconduct.  Yet, The Arizona Republic found that there were “seldom consequences to prosecutors for misconduct.” In another study, USA Today identified 201 instances where federal judges determined that prosecutors violated laws or ethics rules since 1997, only one of which resulted in a prosecutor being temporarily barred from practicing law.   Not surprisingly, an essay published in the Yale Law Journal noted that “in reality, prosecutors have rarely been subjected to disciplinary action by state bar authorities….”

Many justice advocates are rightfully applauding this bill, but some are also asking: Is prison really the only way that prosecutors can be held accountable? What about suspending them without pay, relegating them to lowly duties, even taking away their license to practice law? What about sanctioning the entire District Attorney’s office so all of the prosecutors will have a stake in ensuring that these professionals conduct themselves according to the law?  What about mandating regular training for prosecutors on their ethical and moral responsibilities to uphold justice and serve the community?  What about providing different kinds of incentives within the field so that prosecutors who engage in misconduct experience the same shame and embarrassment from their peers as scholars who are caught engaging in plagiarism?  Accountability can take many forms, and relying on imprisonment should be the last resort. We should use every tool in our tool belt in order to deter misconduct. 

Surely, a richer, more robust, and more effective set of sanctions can be devised, which may ultimately include, but shouldn’t be limited to prison. As Josie Duffy Rice recently wrote, “Accountability doesn’t always have to be locking someone up.”

Lopez was absolutely right when she noted a “lack of oversight when it comes to these types of violations, and the individuals who are guilty of committing them are rarely disciplined. We must send a clear message that such behavior will not be tolerated.   Her impulse in pushing for this bill is a good one, but we shouldn’t let the conversation about prosecutorial accountability end here. Hopefully this measure will lead to a discussion about long-term solutions that are multi-faceted, data-driven, and don’t rely on incarceration as the only option.