By Angel Richardson
As children, we learned that if we behaved or performed well, our behavior would be followed by a reward or positive feedback. Whereas, if we behaved in a negative manner or did something bad, we were met with punishment as a consequence. Behavioral psychologist, B.F. Skinner, codified this theory into what is known as operant conditioning.[1] His ideology placed significant weight on the “external and observable causes of human behavior” and attributed human action to the knowledge of its likely outcome.[2] Put simply, Skinner’s principle holds that “actions that are followed by desirable outcomes are more likely to be repeated while those followed by undesirable outcomes are less likely to be repeated.”[3] Ultimately, it is the consequences of our actions that influence our behavior. This fairly simple premise contributes to the recurrent issue of prosecutorial misconduct within the American criminal justice system being swept under the rug.
It is no secret that countless individuals have been failed by the justice system as a result of a prosecutor failing to ethically carry out their duties. Prosecutors arguably hold the most powerful position within the legal system, with their decisions carrying life altering consequences for the individuals on the other side. Failing to turn over exculpatory evidence, introducing false testimony, engaging in biased decision-making during jury selection, making improper arguments and distorting the truth-finding process are a few of the actions that undermine public trust in the legal system and result in numerous wrongful convictions. Going back to Skinner’s principle, the history of a lack of discipline and deterrent consequences surrounding prosecutorial misconduct has trained these officers of the court to comfortably continue violating laws and professional codes of conduct. It is a rarity that prosecutors get penalized for their actions that end up costing individuals their lives.[4] In 2016, the Innocence Project New Orleans conducted a study and found 660 cases of prosecutorial misconduct from 2004-2008 in five states.[5] Of those 660 cases, only one prosecutor was disciplined.[6] In the small percentage of cases where misconduct is found, an even smaller percentage result in the prosecutor facing penalties. Ultimately, most cases are dismissed on the grounds that the prosecutor’s conduct qualifies as “harmless error.”[7] The harmless error rule stipulates that prosecutorial action that is either violative of the defendants’ statutory or constitutional rights will not result in reversal if the conduct would not have affected the outcome of the trial.[8] Evidently, this is a difficult bar to surpass and consequently leaves most misconduct unchecked.
The prosecutorial function and justice standards are laid out by the American Bar Association, and although they emphasize a heightened responsibility to seek justice and to avoid mere convictions, absolute immunity, a lack of moral accountability and conviction rate structure strategically undermine those standards. Prosecutors are shielded from civil liability and cannot be sued for any actions that occur within their official capacity.[9] Although the purpose of this doctrine is to ensure the criminal justice system functions properly, it quite literally does the opposite by enabling prosecutors to ignore their justice-seeking function and disregard constitutional rights just to pursue convictions.[10] The pursuit of praise and career advancement often taints the motives of prosecutors and seriously calls into question the credibility of convictions within the system. Prosecutors in the United States are given incentives either directly or indirectly to increase their conviction rate.[11] At that point, they abuse their discretion by presuming guilt, rather than innocence and seek convictions with a “by any means necessary” mentality. The prosecutorial function becomes more about scorekeeping than seeking justice,[12] which not only highlights the ethical and moral disengagement, but also reinforces operant conditioning to support the idea that the ability to do wrong with no consequences allows for a justification of those actions. To that end “Inappropriate or unethical charging decisions, intimidating conversations with witnesses, selective and vindictive prosecutions, and grand jury abuse, all occur in the privacy of prosecution offices—away from the public and the parties whose cases are affected by the harmful behavior.”[13] Essentially, actions done in private typically go unchecked and are likely to be repeated as prosecutors are aware of the rarity of discipline and imposition of sanctions.
In the opinion Berger v. U.S., Justice George Sutherland explicated the truth-seeking function of the prosecutor as one who “may prosecute with earnestness and vigor…But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”[14] That said, prosecutors should not be driven by courtroom victories,[15] but by the pursuit of the truth, the protection of the public and the ethical administration of justice.
The solution begins with accountability. Prosecutorial misconduct going unchecked only serves to encourage the unethical behavior that wrongly convicts innocent individuals and forces them to spend their lives behind bars. One possible solution is a tiered system that deters repeat misconduct by prosecutors, mandating sanctions after a defined number of complaints rather subjecting them to discretionary enforcement.[16] Or there is a reality where absolute immunity is reduced to general immunity and a system where prosecutors are subject to constitutional violations rather than ethical guidelines, which are far too vague and devoid of any legal weight to impose meaningful penalties. The ABA Standards explicitly state that these guidelines are aspirational rather than mandatory, intended to “describe ‘best practices,’ and… not intended to serve as the basis for imposition of professional discipline.”[17] Further, the rules deliberately use the phrases “should” and “should not” instead of “shall” and “shall not” because the goal of the rules are again, to be suggestive and aspirational.[18] The lack of obligatory language signals to prosecutors mentally that their conduct is guided by mere suggestions, lacking any real consequences. Moreover, the wording makes these standards highly problematic as it creates a nearly insurmountable hurdle to holding prosecuting officers liable for their misconduct. Just as police officers operate under general immunity rather than absolute immunity, and are subject to liability under 42 U.S.C § 1983, prosecutors should also be held liable when their actions violate clearly established law. A shift from absolute to general immunity would provide an avenue for individuals to hold prosecutors responsible, while still preserving prosecutorial discretion and deterring frivolous litigation resulting from good faith actions. Regardless of the solution, the studies and data are clear- prosecutorial misconduct undeniably remains a crippling issue within the American criminal justice system that demands immediate reform.
[1] Kendra Cherry, Operant Conditioning in Psychology, Verywell Mind (July 10, 2024), https://www.verywellmind.com/operant-conditioning-a2-2794863.
[2] Id.
[3] Id.
[4] Death Penalty Information Center, Official Misconduct: Barriers to Accountability, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/policy/prosecutorial-accountability/barriers-to-accountability (last visited Mar. 28, 2025).
[5] Id.
[6] Id.
[7] Id.
[8] Death Penalty Information Center, supra note 4.
[9] Institute for Justice, Prosecutorial Immunity, Inst. for Just., https://ij.org/issues/project-on-immunity-and-accountability/immunity-for-prosecutorial-conduct/ (last visited Mar. 28, 2025).
[10] Id.
[11] Jason Ralston et. al, Prosecutor Plea Bargaining and Conviction Rate Structure: Evidence from an Experiment, (Apr. 16, 2020), https://lucasrentschler.com/wp-content/uploads/2020/09/Pros1_331.pdf.
[12] Catherine Ferguson-Gilbert, It is Not Whether You Win or Lose, It is How You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?, 38 Cal. Western L. Rev. 283 (2001).
[13] Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275 (2007).
[14] Berger v. United States, 295 U.S. 78 (1935).
[15] Ferguson-Gilbert, supra note 11.
[16]Interview with Craig Trocino, Director Miami Law Innocence Clinic, in Miami, FL (Mar. 25, 2025).
[17] Am. Bar Ass’n, Criminal Justice Standards for the Prosecution Function § 3-1.1
[18] Id.
