The criminal justice system works best when both sides observe the rules.  But what happens when prosecutors, who wield tremendous power over accused individuals, act unethically?

Not much, concludes Mitchell Caldwell, a criminal law expert and professor at Pepperdine University School of Law, in his latest study. Most prosecutors are not elected and cannot be voted out of office, nor are they subject to civil or criminal liability for unethical acts. While the majority of prosecutors behave honorably, there are few meaningful deterrents for those who do not.

Caldwell argues that the current system is inadequate to ensure accountability. Every state has an agency to regulate attorney ethics, and some include a special rule on prosecutorial conduct.  The American Bar Association’s Model Rules of Professional Conduct includes a Rule 3.8 for prosecutors.  However, Caldwell’s home state, California, does not have a state version of Rule 3.8. Making matters worse, “both judges and defense counsel are often concerned about the possible backlash that a report of misconduct might generate,” so defense attorneys and judges often fail to report as required. A prosecutor may retaliate by challenging a judge’s ability to hear criminal cases, or by refusing to cooperate with defense counsel in future cases.

Caldwell proposes an independent panel to investigate misconduct and discipline prosecutors who break ethical rules. Caldwell has called for this type of review committee before, but has recently revised his recommendation in an effort to make the panel more financially and politically viable.  Instead of requiring a series of committees to receive and investigate claims of misconduct, Caldwell’s streamlined proposal calls for automatic referral to the panel whenever an appellate court opinion identifies prosecutorial misconduct in a given case. As Caldwell explains, “appellate courts have already undertaken the necessary investigation and analysis regarding prosecutor misconduct in their opinions.”  Following a court’s finding of misconduct, the panel would then determine sanctions. Caldwell suggests a tiered approach: reprimands for minor misconduct resulting from “inexperience or even incompetence,” and more extensive discipline for egregious or calculated misconduct.

Other scholars have proposed increasing prosecutorial accountability by expanding the disciplinary sanctions available to the state bar.  For example, criminal law expert Richard Rosen has suggested granting state bar organizations powers similar to those Caldwell proposes for his independent panel. The state bar could then review cases for Brady violations and other serious misconduct without filing a complaint. The bar grievance process would also allow criminal defendants and defense attorneys to seek redress for misconduct in cases that plead out before trial or where no appeal is filed.

While Caldwell echoes an important and increasing concern for prosecutorial misconduct, stakeholders in law and criminal justice are advised to keep working on an effective system of accountability.