On July 13, 2017, the Fair Punishment Project issued a report highlighting systemic misconduct in several prosecutor offices across the country. Prosecutors are among the most powerful actors in the justice system: they decide how to charge cases, who to charge, and are usually the gatekeepers of both inculpatory and exculpatory information. Prosecutors are also not mere advocates; their charge is not to win at all costs, or even “win a case,” but only “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Because of high standards for review on appeal, however, it is often very difficult for courts—and the public—to thoroughly scrutinize their behavior. Moreover, prosecutors are afforded absolute immunity from suit that further shields their conduct. Given that their actions have far-reaching consequences on human lives, we believe it is important to examine their actions and share our findings with the public.

For this report, we reviewed thousands of cases from four states and attempted to quantify misconduct committed by these offices. This was not an easy task, as no government agency regularly collects or publishes this data in a concerted manner. Another challenge is that definitions of misconduct vary widely—among courts, academics, members of the bar, legal ethicists, and directly impacted communities. We recognize the difficulty of this exercise, and that the results are imperfect, but believe it is of the utmost importance to shine as much of a light on this issue as possible.  

Unsurprisingly, after releasing this report, we received considerable feedback, which we always value. We constantly strive to improve our research and recognize that any undertaking of this size and scope benefits from scrutiny by a wide variety of stakeholders, and that reasonable minds can differ about what constitutes misconduct. Out of the thousands of cases we analyzed, it came to our attention that an extremely small percentage were either incorrectly categorized, or the county was previously unknown but has now been identified, or they were “close calls” that could have gone either way. To be as accurate as possible, we have re-analyzed all California cases previously reviewed across every county. We have updated our report to reflect this new information. The misconduct and reversal rankings have been updated to reflect this new information, although they are not substantially different from before. For example, Orange County ranked 3rd out of 58 counties for total number of misconduct findings, 2nd for total number of reversals, 5th for misconduct based on a modified per capita ranking, and 1st for reversals based on a modified per capita ranking. After the adjustments, Orange County now ranks 2nd for total number of misconduct findings and 2nd for total number of reversals. It now ranks 4th for misconduct and 4th for reversals out of 58 counties based on a modified per capita ranking.   

We think it is important to explain why our definition of misconduct is accurate and useful. District Attorneys are elected officials tasked with representing their community. They wield enormous power. The nearly unbridled discretion of prosecutors directly impacts whether someone goes to jail, loses their job or home, or is taken from their family. As the late U.S. Supreme Court Justice Robert H. Jackson explained, “The prosecutor has more control over life, liberty, and reputation than any other person in America.” Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology 3, 3 (1940). Accordingly, prosecutors have an enormous responsibility—to follow the rules, to correctly interpret the law, to turn over exculpatory evidence, and to accurately describe evidence and the law when arguing before a jury. When prosecutors fail to do this, they should be held responsible, just as a defense lawyer is when he or she fails in his responsibilities, or a judge is when he or she misinterprets the law.

This report in question sought to quantify an issue—prosecutorial misconduct—that has no singular definition, and to do so in a way that fairly holds prosecutors to an ethical standard consistent with their enormous power. Misconduct takes many shapes and forms, and has varying degrees of impact on the operation of the justice system. As former U.S. Supreme Court Justice John Paul Stevens once wrote, “Like the Hydra slain by Hercules, prosecutorial misconduct has many heads.” United States v. Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting). Definitions vary across states, reported opinions, and state ethics rules. To be certain, however, while a singular definition may be elusive, it is inarguable that misconduct by prosecutors is not only real but also potentially “rampant” and “epidemic.”

Through all of our endeavors, the Fair Punishment Project seeks to educate and inform the public about issues of accountability and fairness in the criminal justice system. Since late 2015, the Project has issued numerous reports, filed dozens of amicus briefs in state and federal courts, and actively contributed to the public discourse around criminal justice and criminal justice reform. The Project’s work has been cited, lauded, and reported with regularity. We transparently issue corrections and updates when necessary, as we are doing today. We stand by our work and believe that it brings value to this important and ongoing discussion and debate.