Governmental Accountability

The United States Constitution guarantees a fair trial to anyone accused of a crime through the Sixth Amendment and the Due Process clause. The Constitution also prohibits the government from imposing excessive bail, excessive fines and cruel and unusual punishment.

But these constitutional guarantees only have meaning if we hold governmental actors accountable when they violate these rights. All too often, that accountability is more of a dream than a reality.

Interrogating Justice’s vision for ensuring governmental accountability breaks down into three categories: prosecutors, judges and prisons.

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Prosecutors

The American Bar Association describes a prosecutor as “an administrator of justice, a zealous advocate, and an officer of the court.” According to the ABA, “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely convict.” In fulfilling that duty, the ABA says, “[t]he prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

What is Prosecutorial Misconduct?

Not all prosecutors aim to fulfill their duty. This abdication of their duty has resulted in decades of legal decisions addressing “prosecutorial misconduct.” Nearly 100 years ago, the late Supreme Court Justice George Sutherland explained in Berger v. United States, 295 U.S. 78 (1935), that a prosecutor engages in misconduct when they “overstep the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record.”

Prosecutorial misconduct shows its face in many ways. Some of the more common examples that have worked their way into the United States Supreme Court include the following:

• prosecutors suppressing exculpatory evidence from the defense (also known as Brady violations),
• prosecutors knowingly using perjured testimony during trials,
• prosecutors misstating the law in front of the jury,
• prosecutors making inflammatory and racist remarks in front of the jury, and
• prosecutors surreptitiously gaining access to the defense attorney’s preparatory work before or during trial.

Why does Prosecutorial Misconduct Matter?

No one should dispute that prosecutor wrongdoing is a problem. If prosecutors are going to be administrators of justice, zealous advocates and officers of the court, instances of prosecutorial misconduct must be rare if not completely nonexistent. On a theoretical level, this is essential for preserving the public’s belief in their justice system.

But prosecutorial misconduct matters for reasons that are for more tangible than the public’s belief in the justice system. Researchers have found that prosecutorial misconduct has played a role in between 36% and 42% of wrongful convictions. That statistic, frankly, is alarming.

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Judges

The American Bar Association compares judges to referees and umpires:

Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call ‘em as they see ‘em, according to the facts and law—without regard to which side is popular (no home field advantage), without regard to who is “favored,” without regard for what the spectators want, and without regarding to whether the judge agrees with the law.

The analogy is a good one. But, like referees and umpires, judges aren’t perfect.

What is Judicial Misconduct?

Every year, we hear something new about a judge’s unethical—and sometimes illegal—actions. Maybe it’s something as eye-catching. A recent example includes a judge being accused of trying to kiss a cop, propositioning court reporters and making sexually suggestive comments to prosecutors. Or maybe it’s something less attention-grabbing but equally problematic, like judges refusing to follow binding appellate-court decisions.

Judicial misconduct is surprisingly prevalent. The consequences for it, however, are surprisingly rare. In 2018, the ABA reported on a CNN analysis of nearly 5,000 judicial-misconduct orders. “Since 2006,” the ABA summarized, “fewer than 10 cases a year were referred to a special committee for a closer investigation, and in six of the past 11 years no judges were sanctioned for misconduct.”

Why Does Judicial Misconduct Matter?

This enormous disparity reflects a larger truth. Judges hold ordinary folks accountable for their actions every day while virtually never having to answer for their own. It’s the void between the two that results in Americans across the country losing faith in our justice system to achieve what it was designed to achieve: justice.

Just read “The Criminal Justice System is Broken and Can’t Be Fixed,” a headline on Psychology Today. Or maybe “American’s criminal justice system is broken,” the title for a bipartisan opinion piece—written by one Democratic and one Republican senator—on CNN. Or even a link to the CATO Institute’s piece entitled “America’s Criminal Justice System Is Rotten to the Core.”

Sally Yates, who served as the United States Deputy Attorney General under President Barack Obama and very briefly under President Donald Trump, got it right when it came to have confidence in the justice system: “It’s really important to me that the public have confidence in their criminal justice system. We don’t operate very well if the public doesn’t trust us.”

Every day that goes by with things as-is, that trust is broken even more.

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Prisons

The United States has 25% of the world’s prison population, yet it only has 5% of the world’s population. This means that, as we speak, more than 2 million people are sitting behind bars in the U.S. Even more alarming than the quantity of prisoners in this country is the fact that the vast majority—around three-quarters—have not even been convicted of a crime.

Mass Incarceration is a Problem

The unfortunate reality is that the number of incarcerated individuals in the U.S. is the product of the political will of politicians and lobbyists, not you and your neighbors. Things like mandatory minimums and “three strikes” legislation have caused prison numbers—and prisons costs to taxpayers—to skyrocket. Yet neither increase public safety.

And, as the U.S. continues to imprison more people than ever before, prison conditions continue to deteriorate. Almost all prisons experience overcrowding. And some present dangers, provide inadequate healthcare and do virtually nothing to prepare prisoners for life after release.

The injustice that results from prisons inadequately addressing mental-health issues continues to get worse as time goes on. Approximately 10% of adult inmates and 20% of juvenile inmates suffer from mental illness. The majority of folks suffering from mental illnesses go to prison for nonviolent offenses. Yet untrained staff, limited medical care and a frequent lack of access to medications stand in the way of these individuals getting the mental healthcare they need.

Yet No One Holds Prison Officials Accountable

Despite the U.S.’s mass-incarceration problem, there are very few ways for us to hold prison officials accountable for wrongdoing. Whether through inmates dying, sexual assaults by prison staff, the refusal of medically necessary treatment, or more stories, prison officials are regularly in the news for misconduct. But stories about them being held accountable aren’t quite as regular.

A discussion about prison accountability can’t be complete without addressing private prisons, too. The U.S. has the world’s largest private prison operation, which involves almost 10% of prisoners—more than 120,000. The corporations that run these prisons profit handsomely, reporting annual revenues around $4 billion. Despite growing evidence that private prisons are less safe, ineffective at rehabilitation and more expensive, the private prison population remains on the rise.

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