Anyone who has followed me at all on this blog must know that, as a group, prosecutors are not my favorite people. But it’s almost, kind-of not their fault. It’s just that the position has been institutionalized with so much power, and with no accountability, and with no consequences for misdeeds; any mortal human would succumb to the seductive temptations of such power. As I’ve noted several times before on this blog, Lord Acton’s words fit exactly – “Power tends to corrupt, and absolute power corrupts absolutely.” I am sure there must be prosecutors out there who are dedicated to the mission of being a “minister of justice,” and who will work tirelessly to see true justice done, no matter the consequences or impact to their personal career. I just haven’t come across any yet (with one, single, notable, extraordinary exception). With that being said, there has been much favorable press lately about the establishment – by prosecutors – of “conviction integrity units.” CIU’s are resource (people and funds) within a prosecutor’s office who are tasked with seeking out and rectifying wrongful convictions. The CIU’s of which I am aware at this point in time are:
We can do nothing but applaud these efforts. After all, a wrongful conviction corrected is a wrongful conviction corrected. If nothing else, the CIU’s are an admission by prosecutors that the justice system does fail. But there are aspects of these units that trouble me. They are all totally contained within the prosecutor’s office. They are not subject to any kind of independent, objective oversight. The prosecutors have total control over which cases they choose to review and which they don’t. Case in point: Lake County, IL State’s Attorney Michael Nerheim’s decision not to have his conviction integrity unit review the case of Melissa Calusinski, that was recently featured on CBS “48 Hours.” If the prosecutor decides whom to indict and the prosecutor decides whose case the CIU will review, what’s the difference? The prosecutor decides in either case. There’s still no independent review, no accountability, and no consequences. Wouldn’t it be much, much better just to get justice right in the first place?
My strong suspicion is that, because of increasing publicity about wrongful convictions, prosecutors are establishing these things to politically bolster their public image. Call me cynical – and we should welcome every step toward true justice – but I tend to see a fox guarding the hen house and a wolf in sheep’s clothing. Over the past decade, people and organizations within the “innocence movement” have made noticeable and laudable progress. As of this writing, the National Registry of Exonerations has logged 1,555 exonerations of people who were wrongfully convicted – and anyone who does this work can tell you that this is just a drop in the bucket. The media have done a pretty decent job of making these exonerations known to the public. After all, it makes for a good “story.” And one of the interesting facts that often comes out in many of these stories is that 46% of those 1,555 wrongful convictions had “official misconduct” as a contributing factor. Official misconduct includes both police misconduct and prosecutorial misconduct. The data in the registry does not distinguish between the two, but clearly, prosecutorial misconduct is a significant contributing factor to wrongful convictions. The Center for Prosecutor Integrity has begun building a data base of such misconduct – the Registry of Prosecutorial Misconduct. I look forward to the day when this registry will provide the kind of hard data that can be used to drive justice system and legislative reform.
This negative publicity over the last several years has put political pressure on prosecutors; particularly in jurisdictions that have a demonstrated history of wrongful convictions. Prosecutors are political animals. They hold elected political office, and they will do just about anything to maintain their credibility with the electorate in order to be re-elected, or to be elected to higher office. Prosecutors are pointing to these things, and saying, “See. We’re being proactive about wrongful conviction.” My expectation is that they are cherry picking the easy, obvious cases, and reaping the good publicity. It remains to be seen how many wrongful convictions they will overturn that involved egregious prosecutorial misconduct, particularly if the subject prosecutor is still with the prosecutor’s office.
CIU’s have yet to stand the test of time. Can they last? Can they actually be apolitically dedicated to true justice, no matter the circumstances? Perhaps time will tell, but my current view is that CIU’s are the prosecutors’ public relations gimmick du jour, and that they are transparently political.
Just watch. When the CIU’s eventually start being dismantled, I predict we’ll hear one or both of the following justifications:
1) We’ve fixed everything there was to fix, and we promise to behave ourselves in the future, so the CIU is no longer needed.
2) Budget constraints and the requirements of ongoing prosecutions force us to apply the resource devoted to the CIU to more urgent business.
It would be nice if the CIU’s keep motoring along, overturning wrongful convictions, even if they’re very politically and self-protectively selective in which cases they review. How could anyone object to that? Again, a wrongful conviction overturned is a wrongful conviction overturned. But to achieve true objectivity, fairness, and impartiality, this function must be separated from the prosecutor’s office. To think anything else is farcical – they have a vested interest in their own convictions. I hold up as a model for how this should be done – the North Carolina Innocence Inquiry Commission. Of course, the problem here is one of throughput. A single commission in a state with many, many counties just cannot possibly deal with all the potentially wrongful convictions that the justice system produces. Maybe there’s a way to solve this throughput problem, but I don’t think anyone knows what it is right now, or should I say “yet.”
I am not advocating that the CIU’s go away, but there must be a better, more objective way to do this. I fear that many cases that deserve review will not be reviewed, because the prosecutor decides it would not be in his/her best interest. And let’s be careful about how much “credit” we give the prosecutors, because these things are clearly politically self serving. In the meantime … prosecutors will continue doing what they do – which is whatever they want, with no fear of sanction.
Let me end, however, with the note that there is a very interesting experiment unfolding in New Orleans. The New Orleans Parish District Attorney and the Innocence Project-New Orleans have agreed to jointly establish a “conviction integrity unit,” although I’m not sure what they’re going to call it yet. Details of how this will operate are yet to come clear, but it bears very careful watching.