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The Proper Response to Prosecutorial Misconduct


I suppose proposing this is like asking for a unicorn farm, but John Paul Stevens is right about what an appropriate response to Connick. v. Thompson would look like:

Stevens said Monday that the nature of the American criminal justice system—where most local prosecutors are elected—“creates a problem of imbalanced incentives that ought to be addressed at the state and national level.”

Because district attorneys often run on tough-on-crime platforms, the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused, Stevens said.

That could be fixed, he said, by making district attorneys liable when their subordinates commit outrageous violations of constitutional rights. Private-sector employees already are liable for their employees’ misconduct, under a legal doctrine called respondeat superior.

The doctrine “provides a powerful continuing incentive for employers to make sure that their employees are adequately trained,” Stevens said, something “especially important where electoral incentives encourage abuse.” More important, he said, “it would produce a just result in cases like Thompson’s in which there is no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”

What’s most remarkable of about the work of the conservatives on the Supreme Court and the 5th Circuit is their utter indifference to the effects not providing serious disincentives for prosecutorial misconduct.

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