Recently, in the wake of one of its most controversial recent decisions, Connick v. Thompson, the U.S. Supreme Court heard oral arguments in another case involving alleged prosecutorial misconduct stemming from the Orleans Parish District Attorney’s Office in Smith v. Cain. Last term, the Supreme Court famously limited municipal civil liability for prosecutors in Connick. In justifying this holding in part by stating that prosecutors are “personally subject to an ethics regime designed to reinforce the profession’s standards,” the Court pointed to the existence of the American Bar Association (ABA) and state grievance mechanisms that set ethical standards for prosecutors and discipline them when they break the rules.
New research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs. While the Supreme Court’s Connick decision severely limits the liability prosecutors face for misconduct, and closes one of the few remaining possible channels of civil prosecutorial liability, the existing “ethics regime” the Court entrusts does not currently protect against or regularly sanction instances of prosecutorial misconduct.
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