For many years, defense and wrongful conviction advocates have pushed for an independent body to investigate and discipline prosecutors. In their words, “disciplinary measures [to punish prosecutorial misconduct] are grossly inadequate,” leading them to the conclusion that, “[t]o deter further misconduct and abuse of power, prosecutors must be punished more severely than attorneys who hold less distinguished and privileged positions.” H. Mitchell Caldwell, “The Prosecutor Prince: Misconduct, Accountability, and a Modest Proposal,” 63 Cath. U. L. Rev. 51, 55-56 (2013). In 2015, the New York State Commission on Statewide Attorney Discipline (the Lippman Commission), created by then-Chief Judge Jonathan Lippman, studied the question, particularly with respect to judicial opinions purporting to find “misconduct.” The Lippman Commission heard repeated arguments in favor of “a separate disciplinary mechanism to address claims of prosecutorial misconduct” and examined a then-pending New York bill that would create such a mechanism. Ultimately, the group rejected the entire proposition:

While the aims of the bill are laudatory, this Commission favors another simpler, more efficient and less costly potential remedy: Ensure that every matter in which a court has found that a prosecutor engaged in misconduct is referred to a disciplinary committee. The Commission stresses, again, the difference between prosecutorial misconduct that results from a good-faith error and prosecutorial misconduct that evinces unethical or malicious behavior, and recognizes that the vast majority of such judicial findings involve the former.

Final Report of the New York State Commission on Statewide Attorney Discipline, Sept. 2013, at 77-78; see also Resolution, American Bar Association, Aug. 9, 2010 (urging “trial and appellate courts when reviewing the conduct of prosecutors to differentiate between 'error' and 'prosecutorial misconduct.'”). Rather than creating “a new bureaucracy to monitor the conduct of prosecutors,” the Lippman Commission called on existing grievance committees to focus more carefully on prosecutors in appropriate cases. Notably, it found “no support” for the “perception of rampant prosecutorial misconduct which is ignored by disciplinary committees.” Id. at 78

Just two years later, the New York State Justice Task Force (the JTF)—also created by former Chief Judge Jonathan Lippman and consisting of members from across the spectrum of public defense, prosecution, judging, policing, and policy—considered a similar question: whether an independent body should be “designated to consider allegations of prosecutorial or defense counsel misconduct.” (Notably, no other body appears to have looked at the idea that an independent commission might investigate defense lawyers as well.) In the end, the JTF came out much as the Lippman Commission did, finding that “a separate body is unnecessary and that it would be more efficient and achievable to make improvements within the already-established grievance process.” New York State Justice Task Force, Report on Attorney Responsibility in Criminal Cases, February 2017, at 5. To that end, the JTF made a series of detailed recommendations to ensure appropriate discipline for wayward prosecutors and defense lawyers. See id., Appendix A.

Notwithstanding the considered opinions of these dozens of judges, defense lawyers, prosecutors, and other experts, the Legislature late last year agreed with advocates and established such a commission. In a new Article 15-A of the Judiciary Law, New York has taken the unprecedented step of creating by statute an entity called The New York State Commission on Prosecutorial Conduct (the Commission). L. 2018, ch. 202; Judiciary Law Art. 15-A. Both before and after the statute's passage, the District Attorneys Association of the State of New York (DAASNY) objected to it on a number of constitutional grounds, including that it intrudes on the independence and core functions of District Attorneys and violates the separation of powers in the New York State Constitution. In an extraordinary memorandum to Gov. Andrew Cuomo shortly before he signed the bill, the Office of the New York State Attorney General wrote that, in its opinion, the bill as passed could well be unconstitutional. After agreeing with the then-leadership of the Legislature to work towards a chapter amendment in the 2019 session—ostensibly to fix the constitutional issues raised both by DAASNY and the AG's office—the Governor signed the bill. DAASNY has since filed a lawsuit, pending in Supreme Court, Albany County, which led to a stipulation staying the the formation of the Commission and delaying its Jan. 1, 2019 effective date.

In addition to the constitutional objections, DAASNY and others complained of policy consequences that would flow from such a commission. Daniel R. Alonso, “A Commission on Prosecutorial Conduct: Unnecessary, Redundant, and Dangerous,” New York Daily News (July 31, 2018); Thomas Zugibe, “The Case Against a Commission on Prosecutorial Conduct,” City & State New York (June 15, 2016). Among these are the chilling effect it will have on prosecutors; the ease with which complaints can be made and the concomitant disruption of legal proceedings; and the adequate existing avenues for addressing misconduct in the legal profession generally. Bemoaning the fact that the Legislature ignored the findings and recommendations of the Lippman Commission and the JTF, one District Attorney wrote that a commission “would surely cause delay to the progress of ongoing investigations and prosecutions, much to the detriment of all New Yorkers.” Richard A. Brown, Letter, “No Support for Rampant Prosecutorial Misconduct,” New York Law Journal (June 25, 2018). Commentators have also noted the small percentage of cases in which intentional misconduct has been established. Caldwell, supra, at 54 (“[I]nstances of prosecutorial misconduct are relatively rare”); Lippman Commission, supra, at 78 (finding “no support” for suggestions of unpunished “rampant prosecutorial misconduct”); Alonso, supra.

Because of the constitutional concerns raised both by DAASNY and the Attorney General's office, the Legislature recently passed an updated bill (the Bill), ostensibly to fix the constitutional issues raised. The purpose of this column is not to revisit the constitutional or policy arguments for or against the Commission that have been made elsewhere. Instead, the focus will be on analyzing the provisions in Article 15-A and the Bill, many of which will have unintended consequences for the effective functioning of the criminal justice system. In this first of two parts, we examine the scope of the Commission's authority

Scope of the Commission's Authority

The Commission's functions are outlined in Article 15-A of the Judiciary Law. It is charged with “review[ing] the conduct of prosecutors … to determine whether said conduct as alleged departs from the applicable statutes, case law, New York Rules of Professional Conduct, 22 NYCRR 1200, including but not limited to Rule 3.8.” Judiciary Law §499-a. (Rule 3.8 is the only attorney ethics rule that applies exclusively to public prosecutors.) The Commission is empowered either to determine that a prosecutor (defined as either a District Attorney (DA) or Assistant District Attorney (ADA)) be admonished or censured, or to recommend to the Presiding Justices of the four Appellate Divisions that they recommend to the Governor the prosecutor's removal from office. Judiciary Law §499-f(1).

The Commission is broadly authorized, either when it receives a complaint, or on its own motion, to “initiate an investigation of a prosecutor with respect to his or her qualifications, conduct, fitness to perform or the performance of his or her official duties.” Judiciary Law §499-f(2). To recommend removal, however, it appears that the Commission must find “cause,” which includes, “but [is] not limited to, misconduct in office, as evidenced by his or her departure from his or her obligations under appropriate statute, case law, and/or New York Rules of Professional Conduct … including but not limited to Rule 3.8 … , persistent failure to perform his or her duties, [or] conduct prejudicial to the administration of justice.” Judiciary Law §499-f(1). The Commission also may recommend that a prosecutor be retired due to a physical or mental disability. The statute currently includes “habitual intemperance” in its listed misconduct and permits removal for activities outside the office; the Bill removes those provisions. Nowhere does the statute or the Bill specify a burden of proof, nor does either shed any light on what “departs from” means. Judiciary Law §499-a.

It is hard to overstate the earth-shattering change these standards would effect with regard to the independence of prosecutors and the traditional discretion that has until now been granted to them in New York and the entire United States. In case there is any doubt what the Legislature intended by authorizing investigations into “qualifications,” “conduct,” “performance of … official duties,” or “conduct prejudicial to the administration of justice,” the Sponsor's Memorandum of the legislation makes that clear. It notes the “extraordinary amount of discretion regarding investigation and prosecution of charges” that prosecutors have, and declares that “[i]t is vitally important there exist in law a tribunal to oversee that discretion … .” L. 2018, ch. 202, Sponsor's Memorandum, at  3 (emphasis added). The Memorandum also says that the “Commission will allow the public to voice concerns regarding improper prosecution,” a term that is not defined, either within the Memorandum or Article 15-A. Id. (emphasis added).

In sharp contrast to the text and legislative history of Article 15-A, a bedrock principle of the American criminal justice system is that prosecutors “retain[] 'broad discretion' as to whom to prosecute.” Wayte v. United States, 470 U.S. 598, 607 (1985). Indeed, the Supreme Court has long maintained that “the decision to prosecute is particularly ill-suited to judicial review” because the myriad factors that prosecutors must consider to do their jobs “are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id. In the court's words, asking courts to inquire into the underlying basis of a prosecution “threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Id. Absent invidious discrimination, selective prosecution, or corruption, up until now parsing a prosecutor's exercise of discretion has been extremely disfavored in this country.

The New York Court of Appeals has reinforced this broad discretion no less forcefully than the Supreme Court:

[W]e and, increasingly, other nations, have come to grant the [prosecutor's] office wide latitude in the allocation of its resources. Not the least feature of this flexibility is a discretion to investigate, initiate, prosecute and discontinue broad enough, conceptually and practically, to merit the observation that, overall, more control over individuals' liberty and reputation may thus be vested than in perhaps any other public official.

People v. Zimmer, 51 NY2d 390, 394 (1980) (citations omitted). Such discretion “enable[s] a public prosecutor to carry out his heavy responsibility in a fair and impartial manner.” Id. And although Article 15-A explicitly purports to “mirror[] the existing Commission on Judicial Conduct,” Sponsor's Memorandum, supra, at 2. nothing in the constitutional amendment enabling that commission, N.Y. Const., Art. VI, §22, nor in the legislative history of the Judiciary Law provisions implmenting that amendment, suggests that it may delve into the exercise of discretion by judges. Hugh L. Carey, Memorandum Approving L. 1976, ch. 691, July 24, 1976; see also 1978 New York State Legislative Annual, at 134-35 (Memorandum of Sen. Bernard G. Gordon Regarding L. 1978, ch. 156). Indeed, that Commission's rules make plain that they “are to be construed so as not to impinge on the essential independence of judges in making judicial decisions.”

Thus, broad prosecutorial discretion is a key feature of our justice system. Indeed, New York's prosecutors take understandable pride in exercising that discretion consistent with their mandate “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935); see also DAASNY, “The Right Thing”: Ethical Guidelines for Prosecutors, at 1 (2016).  But the reality is that in today's media-soaked world, prosecutors are regularly second-guessed by outraged actors on both sides of emotionally-wrought criminal matters. It seems clear based on recent anecdotes that as many people criticize prosecutors for overcharging or being too harsh as for not going forward or offering too-lenient dispositions. Compare John Bresnahan, “Report Blasts Prosecutors in Ted Stevens Case” (March 16, 2012) with Albert Samaha, “A Doctor Admitted to Sexually Abusing Patients and then Walked Free,” BuzzFeed News (June 5, 2018). These actors will no doubt take advantage of the Commission's roving mandate to investigate prosecutorial discretion, and the Commission will have no choice but to investigate all facially-valid complaints. Judiciary Law §499-f(1). Sometimes, people will complain that the prosecutor was too harsh; others will decry a failure to prosecute a particular person. For the prosecutor involved, the ordeal is potentially career-ending.

If it survives, the Commission itself could ameliorate the effects of this sea change through its administrative rulemaking authority. Judiciary Law 499-d(5). It could, for example, clarify that “misconduct in office” must be grounded in one or more of the Rules of Professional Conduct, a statute, or a clear and uncontroverted rule articulated by either the New York Court of Appeals or the U.S. Supreme Court. That clarification could be accompanied by an unambiguous statement that, barring such a violation, the Commission will not otherwise delve into a prosecutor's discretion in investigating, charging or not charging, plea bargaining, or otherwise disposing of cases. The Commission also could bring clarity to the overly broad concepts of “persistent failure to perform his or her duties, [or] conduct prejudicial to the administration of justice.”

In Part II, we will examine the Commission and its staff, the conduct of Commission proceedings, and the Commission's investigatory powers.

Daniel R. Alonso is managing director and general counsel at Exiger. A former federal prosecutor, he also served on the New York State Commission on Public Integrity, and most recently served as the Chief Assistant District Attorney in Manhattan from 2010 until 2014.