Law Social Justice Featured Blog: Should Americans expect broad changes in prosecutorial conduct? By Kaleb Carter Posted on April 15, 2016 8 min read 2 0 705 File photo by Jacob Smith The United States is at an interesting time in its history in terms of criminal justice reform as that topic sits on the tongues of legislators, citizens and everyone in between. Prosecutorial misconduct has worked its way into more of these conversations as of late. Two high-profile election cases concerning prosecutors (also called district attorneys or prosecuting attorneys) have given critics of the justice system in the U.S. new fuel for their fire. Anita Alvarez and Timothy McGinty were ousted in prosecutorial races in Chicago and Cleveland respectively. Both were Democrats, and both had come under fire for what has been perceived by critics of prosecutors being too protective of law enforcement after incidents largely ascribed to be misconducted. I would call it that in a few of the cases. Laquan McDonald, Quintonio LeGrier and Bettie Jones come to mind. So do Timothy Russell, Malissa Williams and Michael Brelo as well as Tamir Rice and the cop who killed him: Timothy Loehmann. Hill lost her job as the Cook County prosecutor at a time when unrest concerning Chicago’s mayor is still at a high and grassroots activism is not only active but growing. McGinty lost his job as Cuyahoga prosecutor by losing the Democratic primary for his position. Prosecutorial-elect Michael O’Malley will take office with McGinty’s mistakes in mind. Slate’s Leon Neyfakh made a point that needs to be illuminated here in relation to prosecutors losing their jobs. “As extraordinary as the results in Chicago and Cleveland seem, the incumbents lost the way incumbents always lose in prosecutor races: They succumbed to scandal,” Neyfakh said. In addition to this fact, it is astonishing to consider just how often prosecutors retain their position and then compare the situations here. A study by the Moritz school of law at Ohio State University found that the success rate of prosecutorial incumbents is 95 percent in elections. In this case, the scandal was largely not coming down hard enough on cops and law enforcement and maintaining accountability and transparency in the process of justice. Just two years ago (not even that long honestly,) Bob McCulloch stood in front of a national audience and reprimanded every possible person aside from Darren Wilson for the shooting of Michael Brown. He was the prosecuting attorney for St. Louis County, Missouri. Anita Alvarez, Timothy McGinty and Bob McCulloch are all names that would not have been at the front of criminal justice matters just a few years ago. Now, massive outcry is causing people in influential prosecutorial positions to examine their respective balance in terms of relationships between prosecutors and the rest of the justice system they operate in. All of this flies in the face of a recent story by the New England Center for Investigative Reporting. Through the past 42 years, Massachusetts has never disbarred a prosecutor for professional misconduct. Only two reprimands had been made of prosecutors for professional misconduct over that time. Given the amount of influence of prosecutors, this is unfathomable. Despite there being over 1,000 cases in which the conduct or prosecutors was alleged, again, none were disbarred. This likely is partly due to the incredible leeway given to prosecutors in addressing crime. While some organizations like The Open File (prosecutorialaccountability.com) directly note prosecutors as huge drivers of the current state of over incarceration, citizens have been whipped up into enough of a fervor about crime so as to not necessarily feel an innate sense of responsibility to hold them accountable. Withholding crucial evidence to cases, misleading grand juries and being overprotective of justice system actors are just a few ways that prosecutors can go awry from justice. However, the losses by McGinty and Alvarez seem endemic of a newfound accountability for prosecutors. Where this leads might best be left to people who have covered the justice system for a long time, but accountability for prosecutors sure seems to be heading in a more democratic direction. High-profile cases are sure to lead to substantive change, and we will all be witnesses to that fact. Here’s a helpful slide show detailing some facts from the McGinty and O’Malley race. (O’Malley is the prosecutorial-elect.) Slate’s Leon Neyfakh suggests that the loss of McGinty and Alvarez was a huge victory for Black Lives Matter activists and other grassroots organizers. A study from the Ohio State Moritz College of Law provides some excellent context about the failings in prosecutorial elections.