In California, prosecutors that withhold or falsify evidence may now be charged with a felony. A new bill introduced by Assemblywoman Patty Lopez would ensure increased accountability for prosecutorial misconduct, which regularly goes unpunished in the state. From the OC Register:
The bill is scheduled to go before the Senate Appropriations Committee Thursday. It would boost penalties to between 16 months and three years for prosecutors who violate the law. Current statutes make it a misdemeanor for anyone to withhold or falsify evidence, while law enforcement officers can be charged with a felony.
The law also currently allows a judge to fine prosecutors and report them to the state for various types of misconduct. In some cases, judges can remove prosecutors from a case entirely.
The bill comes in the aftermath of a widespread prosecutorial misconduct scandal in Orange County, California, which has been covered here repeatedly. Under District Attorney Tony Rackauckas, prosecutors have been accused of illegally withholding and tampering with evidence. Among other misdeeds, the office has repeatedly relied on jailhouse informants as witnesses without disclosing that the informants had received benefits for their testimony.
But it's not just Orange County. The OC Register reports:
A 2010 study by Santa Clara University School of Law looked at misconduct statewide, concluding: “Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it...The problem is critical.”
The study noted that just six out of 600 prosecutors accused of misconduct in California between 1997 and 2009 were punished by the state Bar.
As expected, support for the measure is bitterly divided. Rackauckas, surprisingly, is expressing support for it—perhaps because he's disgraced his office so monumentally that he can't reasonably reject it—but "says it should apply to all attorneys as well." Many others, however, are opposed to the measure.
Opposing the measure is the 500-member union representing Orange County lawyers, including deputy district attorneys, public defenders and county counsel. The group’s board on Tuesday voted 8-3 to oppose the bill.
Deputy District Attorney Mena Guirguis, the union’s president, said the new bill is redundant and would clog the justice system.
“There are already safeguards in place to deal with the things the bill is trying to address,” Guirguis said. “There’s no evidence there’s an explosion of intentional violations.”
Many of the union members, however, disagree – especially the public defenders. “It’s completely egregious what my union is doing,” said Deputy Public Defender Tania Vallejo.
“It’s completely untrue that our public defenders are opposing AB 1909... It hits the very soul of what we do. We have been working tirelessly to hold the district attorney’s office accountable.”
All these conflicting opinions and yet no one is quite hitting the mark on why this bill is problematic.
This is a point I've made over and over again but it always bears repeating: the overarching goal of criminal justice reform is non-negotiable. Ultimately, the point of this movement is to reduce mass incarceration, reduce criminalization, and address the rampant abuse of power by systemic actors.
So while increasing accountability and implementing consequences for prosecutorial misconduct is critical, those consequences should absolutely not take the form of criminal punishment. More criminal records and more people in prison is antithetical to the ultimate goal. Accountability doesn’t always have to be locking someone up.
Prosecutorial misconduct should result in serious and swift professional consequences: loss of bar license, a ban on further employment as a prosecutor, and a public statement and apology. Monetary fines would also be an appropriate punishment, in addition to many hours of intensive community service.
Lopez and the public defenders in the union should be applauded for their continued insistence that prosecutors be held accountable. But further criminalization simply cannot be a solution in light of our greater goals of justice reform.
Another problem with the bill? The intent requirement. Requiring a person to demonstrate intent may seem innocuous enough, and is an important safeguard in many criminal charges. But other times the intent requirement is unreasonably high, making it virtually impossible to hold a person accountable for wrongdoing. This is especially true when the person is a state actor. In a prosecutorial misconduct case, a prosecutor would have had to make it explicitly clear that they knew evidence was exculpatory and were intentionally not releasing it. In most prosecutorial misconduct cases, there is significant circumstantial evidence that screams intentionality, but under this law that may not be good enough.
Regardless of whether a prosecutor intentionally or negligently fails to turn over exculpatory or material evidence, the outcome is the same. Perhaps negligent failure to disclose should be punished less harshly, but it should still be punished.
The proposed bill itself has issues, but the reasoning from both those in support and opposition is even more troublesome. Rackaukus's assertion that the new law should apply to all lawyers is patently ridiculous. While numerous legal fields have disclosure requirements—and tampering with evidence is never acceptable— the countless iterations of the legal profession means that the same standard couldn't possibly be applicable to everyone.
Nor should it be. Prosecutors are not like other lawyers—not only because evidence violations are so common within the profession, but because they are representatives of the state. The standard for their conduct is higher, their decisions are of paramount consequence, and their power is virtually immeasurable. They literally have people’s lives in their hands in a way that other lawyers do not. This law applies specifically to prosecutors because their power is only outweighed by their lack of accountability.
As for the union, the justification behind their opposition is breathtakingly disingenuous—so explicitly untrue that it’s almost laughable. The idea that there are adequate safeguards in place to punish prosecutorial transgression is simply false. Prosecutors in Orange County, throughout the state of California, and across the country constantly act with impunity, lie, hide evidence, violate defendants' constitutional protections, and somehow manage to keep their job, much less stay out of jail. There are no workable safeguards in existence today and to claim otherwise is shameful.
Lastly, if you know anything about prosecutors you should know this—everything they do is shrouded in secrecy. There's virtually no transparency at all—basically zero recorded data, no oversight mechanism, no form of institutional audit, no requirement to respond to most information requests, and absolutely no detailed record of plea deal negotiations, which is where 95 percent of cases are settled anyway.
What’s more, prosecutors depend on law enforcement to investigate and collect evidence. That means that other court actors—including judges and defense attorneys—don't actually have any idea what evidence prosecutors have obtained. A law like this one must also require some serious transparency and oversight requirements, not only from prosecutors but from police. Otherwise, in most situations, no one will even know when evidence hasn't been turned over.
It's absolutely excellent to see a state legislature take on prosecutorial accountability as a key element of criminal justice reform and systemic fairness. While this solution in particular is not ideal, the fact that this is being discussed at all is a notable improvement in the continued fight to bring attention to prosecutorial misconduct. Let’s hope we can tweak this bill and begin to truly reform this system.
