Document Type

Article

Publication Title

The Georgetown Journal of Legal Ethics

Publication Date

2017

Abstract

This essay examines the ethical regulation of prosecutors over the past three decades. The topic is important from the perspective of criminal justice, no less than legal ethics, because prosecutors are centrally responsible for administering the criminal law. Courts assume that the principal role in regulating prosecutors should be played by the states' formal attorney disciplinary processes rather than by civil liability or judicial oversight in criminal cases. However, there has been a well-justified academic and professional consensus that the disciplinary processes fail to fulfill their expected role because, when it comes to prosecutors, ethics rules are neither sufficiently restrictive nor adequately enforced. Consequently, proponents of criminal justice reform seek to hold prosecutors more accountable for conduct that undermines the fairness and reliability of the criminal justice process, in part, by advocating for stricter ethics rules governing prosecutors' work and stricter enforcement of existing rules applicable to prosecutors. Those seeking prosecutorial ethics reform face an uphill battle, however, given the significant political influence of prosecutors, who are armed with a checklist of justifications for opposing efforts to regulate their conduct more strictly through the disciplinary process. Consequently, holding prosecutors more accountable may require either developing and strengthening alternatives to formal discipline or restructuring the process by which ethics rules for prosecutors are fashioned and enforced.

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