A colleague from Berkley School of Law recently shared his research paper, “Using Deterrence Theory to Promote Prosecutorial Accountability.” This has been a hot topic recently as media reports and entertainment both highlight unethical conduct by prosecutors.
The judicial review process reveals instances of prosecutorial misconduct. But then what happens? Wrongful convictions, harsher sentencing, and certainly a loss of trust in the judicial system result when prosecutors get away with violating defendants’ constitutional rights.
Currently, there is no universal, effective response to unethical prosecution. The appeals process may be applied in specific cases, but the problem remains that prosecutors committed a violation in the first place. Professional discipline, civil and criminal liability, and the threat of losing elections hold prosecutors accountable inconsistently. These measures are not powerful enough to protect defendants’ rights to due process. Most prosecutors who break or bend the rules face few, if any, consequences.
Sarma proposes using deterrence theory to increase accountability for prosecutors. Deterrence theory underlies our criminal justice system. Put simply, it’s the idea that people who fear punishment are less likely to break the rules. You don’t want to get a speeding ticket, so you watch your speed. You don’t want to get fired, so you show up to work on time.
Deterrence warrants some criticism, of course. Some contend it isn’t working, because it hasn’t prevented us from having an enormous rate of incarceration. Unfortunately, we use deterrence theory to justify ineffective approaches such as placing inmates in solitary confinement.
Sarma makes the point that prosecutors make their livelihoods applying deterrence theory; as such, it would only be fair to apply it strategically to prosecutors as well. What if prosecutors knew they would lose their jobs for withholding evidence from the defense, for example? Would they be more likely to make ethical decisions in order to avoid swift, severe and certain sanctions?
Deterrence theory explains, in part, why our current accountability systems for prosecutors (or lack thereof) fail. If sanctions for breaking the rules produce a, “So what? Who cares?” then they offer little incentive to behave ethically. Other problems creating an accountability gap include the difficulty in identifying breaches of conduct in time to apply meaningful sanctions. Critics of applying deterrence to prosecutors argue that such policies might make those intent on breaking the rules more unethical; that is, they will more thoroughly cover their tracks to avoid punishment.
For now, Sarma concludes deterrence is one useful framework we can use to come up with reforms. No doubt, we need those reforms.