New York’s Governor Signs Bill Creating Nation’s First Commission to Investigate Prosecutorial Misconduct

August 23, 2018

By Jill K. Sanders, Esq.

On August 21, 2018, New York’s Governor Andrew Cuomo signed legislation establishing the State Commission on Prosecutorial Conduct. The Commission will be the first of its kind in the nation, and it is scheduled to be formed in January of 2019.

“Our criminal justice system must fairly convict the guilty and exonerate the innocent,” Governor Cuomo said. “When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice. This first-in-the-nation Commission will serve to give New Yorkers comfort that there is a system of checks and balances in the criminal justice system, and to root out any potential abuses of power to ensure that our justice system is just for all New Yorkers.”


Why Create a Commission?

Prosecutors are ministers of justice, and they are bound by rules which outline fair and dispassionate conduct in performing their jobs. While the vast majority of prosecutors are fair and ethical and intend to do right by victims and defendants alike, a few “bad apples” can have a dramatic impact on the integrity of the criminal justice system. Many times, prosecutors face little if any repercussions through the grievance systems which are already in place – even when there is egregious conduct on the part of the prosecutor.

According to The National Registry of Exonerations, New York has a record 250 people who have been exonerated after being wrongfully convicted. Of those 250 cases, 158 of them involved “official misconduct,” including misconduct by prosecutors. Such misconduct may include failing to disclose exculpatory evidence, using intimidation, offering testimony which is known to be false, and selective prosecution.


What Will the New Commission Do?

The bill amends the state’s Judiciary Law by adding a new Article 15-A, entitled “State Commission on Prosecutorial Conduct.” The new law creates a Commission and sets forth its organization and functions.

According to the bill, “The purpose of this legislation is to create the commission on prosecutorial conduct, to serve as a disciplinary entity designated to review complaints of prosecutorial misconduct in New York State, to enforce the obligation of prosecutors to observe acceptable standards of conduct, and to establish reasonable accountability for the conduct of prosecutors during the performance of their functions, powers and duties as prosecutors. The commission on prosecutorial conduct is modeled after legislation that established the state commission on judicial conduct.”

The new Commission will consist of 11 people, appointed by the Governor and other legislative and judicial leaders. The panel will receive and investigate complaints of misconduct by district attorneys, and its findings from such investigations will be made available to the public. The Commission will also refer cases to the Governor, who will have the power to remove prosecutors from office.


Issues With the New Law

Concern was expressed by the state’s Attorney General’s Office, which issued a memo indicating that the new law was not likely to survive judicial review as written. While the Attorney General’s Office supports the goal of the newly-created commission, the memo expressed concern over separation of powers, as six of the 11 members of the Commission would be appointed by legislative members. The memo further pointed out that the Commission would give the judiciary more power than granted under state law; three of the members of the Commission would be appointed by the state’s Chief Judge Janet DiFiore, and the Court of Appeals would review of the Commission’s decisions. The bill would also give the Commission broad authority to seek information on a complaint without limits, which could impair the work of district attorneys.

Similar concerns were voiced by the District Attorneys Association of New York (“DAASNY”). Notably, the Commission may give legislators undue power over prosecutors, which could result in selective prosecutions and failure to investigate public corruption.