Tagged: Bennett L. Gershman

Does Prosecutorial Misconduct Need to Be Punished to Make a Difference?

In his newest op-ed New Commission to Regulate Prosecutorial Misconduct, Prof. Bennett Gershman of Pace Law School introduces the nation’s first public commission, proposed in New York State, that is designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules.

Prof. Gershman recaps some of the most egregious recent instances of prosecutorial misconduct and points out that prosecutors are rarely disciplined for their misconduct.   He points out that misconduct by prosecutors is costly because it leads to wasting money on re-litigating the same case over and over, it diminishes public confidence in the criminal justice system when prosecutors are not held accountable for their misconduct, and it imposes unimaginable pain and suffering on the innocent and their families. Prof. Gershman then concludes that

a commission that is independent from the legal profession, and independent from the prosecutor’s office, will be able to conduct investigations in a nonpartisian, non-political, and objective manner.

Read the full Bennett L. Gershman, New Commission to Regulate Prosecutorial Misconduct, HuffPost Crime (May 20, 2014).

Many Wrongful Convictions: Not So Many Answers

Recent studies have estimated that between 2.3% and 5% of all prisoners in the United States are factually innocent. According to the Innocence Project, if just 1% of all prisoners were innocent, that would mean that more than 20,000 innocent people are currently in prison. Of course, one would assume that such staggering numbers would prompt some type of national examination to determine why the criminal justice system is continually breaking down.  At the very least, the continued unveiling of wrongful convictions nationwide must lead to some type of reform that would prevent future injustices from occurring. Unfortunately, the Criminal Justice system has failed miserably in its attempts to deal with these issues, despite its realization that wrongful convictions continue to occur. As Professor Bennett L. Gershman of Pace Law School recently noted

there is hardly ever a postmortem of a derailment in the criminal justice system, as there typically is when a train derails, or a plane crashes.

Professor Gershman’s editorial, Don’t Let the Prosecutor Off the Hook, discusses how the justice system has simply forgotten to undertake its duty to determine the causes behind this tragic epidemic that has continually plagued our justice system. Citing the recent exoneration of Jonathan Fleming, who had spent 24 years in prison for a murder that he did not commit, Professor Gershman explained

Nobody, certainly nobody in the media, has attempted to examine this case more closely and to ask probing questions about how this human tragedy could have happened? We don’t investigate how criminal cases miscarried. We don’t investigate how the system malfunctioned. And we don’t investigate those officials who caused the malfunction.

Evidently, there are probably thousands of cases in which an innocent person has been convicted. Yet, the process of finding answers or solutions to the systemic flaws causing wrongful convictions has been a snail’s race.  As Professor Gershman implicitly points out, however, the prospect of finding a solution is undermined by society’s passive approach to the problem. Moreover, the likelihood of successfully confronting this important issue can never be truly realized until the wrongdoers are actually held accountable for their actions and no longer allowed “off the hook.” Of course, as Prof. Gershman notes, the first step will be to simply “ask probing questions about how this human tragedy could have happened?”

Related Readings

Prosecutorial Discretion: Key Factor in Civil Rights Challenges

An inspiring editorial, Refusing to Defend Unjust Laws: Prosecutorial Discretion or Prosecutorial Nullification?, by Professor Bennett L. Gershman of Pace Law School has shed light on the national importance of Attorney General Eric Holder’s recent attempt to address state laws that may be unjust or unconstitutional. In past weeks, Holder has led the charge to denounce such laws by directing state attorneys general that it is within their discretion to refuse to defend such laws.

Professor Gershman, who is a nationally recognized authority in the field of constitutional law and well renowned expert on prosecutorial misconduct, highlights this development in both national politics and law, explaining that Holder’s directive is both an important and well principled exercise of a prosecutor’s discretion.  He points out that Holder’s position may play a pivotal role in the nation’s ability to address the defining civil rights challenges of our time, including state laws that ban gay marriages. Some critics, including a number of Republican state attorneys general, have criticized Holder’s position as an impermissible exercise of “prosecutorial nullification,” and violative of their duty to enforce all laws, including those that may be unconstitutional. However, Professor Gershman explains that Holder’s directive is a well-settled exercise of prosecutorial authority, as “discretion is at the heart of the prosecutor’s function, it is virtually unlimited, and virtually unreviewable.”

Professor Gershman further explains that “[p]rosectors decide every day – -as a matter of policy and justice– whether and to what extent to use their limited resources to enforce the law. And the kinds of determinations that prosecutors make every day is whether it would be unjust to enforce or defend certain laws, especially if the prosecutor believes in good faith that the law is invalid, unworkable, or unconstitutional.” He points out that “defending [] [unjust] laws, as the Republican attorneys general claim they must do, may be a principled exercise of discretion, but a foolish and irrational one.”  

Related Reading

Denial of Cert by Supreme Court: Racial Comments by Prosecutors

The U.S. Supreme Court recently denied certiorari in a case involving racial comments by a prosecutor in summation.   Defense counsel had not objected to the comments.  Justice Sotomayor, joined by Justice Breyer,  wrote to make clear that such comments are intolerable.

Pace Professor Bennett Gershman discusses the issue.