Retooling and coordinating the approach to prosecutorial misconduct

Prosecutorial misconduct has stubbornly remained a troubling feature of the American criminal justice system. Judges and scholars have bemoaned its persistence, and some have warned that it threatens to reach epidemic proportions. The problem is that the current approaches we deploy to surface, investigate, and stop such misconduct are inadequate to the task. Too often, the courts, scholars, and the public misread the scope of the problem. They want to treat responses to prosecutorial misconduct as a product of individual bad actors. These individual "bad apples" are viewed as outliers and disconnected from office leadership. But the misconduct is rarely just an individual failure and more often encompasses an array of key players throughout the prosecutor's office. Prosecutorial misconduct flows from an environment that tolerates it, oversees it, and encourages it. So, rooting out the problem of misconduct necessarily involves more than weeding out a few bad individuals; it requires new ways of defining the conduct and coordination of the responses to capture the scope of this misconduct. This Article explores the dimensions of prosecutorial misconduct and challenges the prevailing notion that misconduct is a singular act by a corrupt individual. It contends, instead, that the chronic increase in instances of prosecutorial misbehavior stems from our failure to understand the scope and frequency of misconduct coupled with our tendency to minimize or cover up the behavior of prosecutors. This article proposes treating misconduct as obstruction of justice as a preliminary step toward recognizing and signaling the gravity of the stakes involved. It then calls for better coordination, more thorough data-gathering, and more focused state and federal intervention to investigate and deter misconduct.