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Creation of Prosecutorial Watchdog in New York Spotlights Distinction Between Misconduct and Unfair Conduct

by Michael Berk

Thanks in no small part to the dedicated lobbying of people such as Jeffrey Deskovic — who spent 16 years locked up for a rape and murder he did not commit — the New York State Legislature created the country’s first independent commission to oversee state prosecutors.

The State Commission on Prosecutorial Conduct, composed of 11 members appointed by all three branches of the state government, was enacted over the objections of the district attorneys’ lobby. The body is empowered to initiate investigations, subpoena evidence from prosecutors and witnesses, and recommend sanctions (subject to the governor’s approval) up to and including termination. Substantiated allegations of misconduct are made public, sending a strong message to prosecutors to stick to the rules. 

The effectiveness of the commission depends now on the appointees themselves. The law requires that the panel include prosecutors, defense attorneys, and judges. Some critics argue that there should be a wrongfully convicted person in the mix, too, to ensure fair handling of complaints. Others point out that it’s not always “misconduct” that’s the problem. 

John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, argues that run-of-the-mill prosecutorial conduct — “prosecutors making decisions that are publically legal, but unnecessary,” for example — often results in grossly unfair treatment. 

While the commission is a crucial first step, unjust charging decisions take place on a far more regular basis. And despite the disproportionate impact of “rogue prosecutors,” what really drives mass incarceration is the pervasive poisoning of the well by cynical prosecutorial conduct. 

Everyone can agree that wrongful convictions resulting from prosecutorial misconduct are preventable tragedies, and New York’s commission looks poised to take a big bite out of that bad business. But the decision to enact this legislation only asks the “negative question” of who is breaking procedural regulations and ethics rules. The corresponding “positive question” yet to be asked is: Who is contributing to the just application of the law? 

Pfaff advocates for improved transparency of prosecutorial discretion. By exposing everyday practices to public scrutiny, corner-cutting and rubber-stamping should find fewer places to hide. 

The creation of New York’s Commission on Prosecutorial Conduct promises to serve as a powerful flashlight to search dark corners for exceptions to the ideal. The people will be watching for the day when the light is switched on to illuminate the whole room for the benefit of all. 



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