Cardozo Law Review, Forthcoming
The modern era of corporate criminal law enforcement is dominated by an entity-based approach of compliance. There is broad agreement among prosecutors that this is the right way to deter misconduct within a company. Indeed, it is the official policy of the Department of Justice, and one of the key principles behind the United States Sentencing Commission’s Organizational Guidelines.
Prosecutors should be equally enthusiastic for using this framework to address wrongs that place within a similar organization: the prosecutor’s office itself. Prosecutorial misconduct, whether intentional or negligent, is not an infrequent occurrence. Although most prosecutors follow the law and behave ethically - just as most corporate employees do - that is not true of all prosecutors. A host of studies have documented prosecutorial misconduct, and one of - if not the - most common type of prosecutorial misconduct in these cases involved the suppression of exculpatory evidence in violation of Brady v. Maryland. The existing framework for addressing prosecutorial misconduct is entirely backward-looking - and ineffective. Judges and state bars are supposed to police violations when they occur. But just as a model that focuses solely on individual liability and addressing particular violations after-the-fact proved inadequate in deterring corporate crime, so, too has it failed in addressing misconduct within the larger entity of the prosecutor’s office. Most violations never come to light, and when they do, individual actors responsible for the misconduct rarely face any consequences.
Prosecutors recognized these failings when the entity at issue was a corporation. They have aggressively targeted the entity itself to address these shortcomings and to encourage forward-looking reforms. Specifically, they have used the entity as a partner in stopping wrongdoing before it happens by insisting on strong compliance programs that rely on training, supervision, transparency, and monitoring. This Article argues that it is time for prosecutors to recognize that their own offices should be held to the same standards.
Date of Authorship for this Version
Barkow, Rachel E., "Organizational Guidelines for the Prosecutor's Office" (2010). New York University Law and Economics Working Papers. 204.