NYT: How to Prosecute Abusive Prosecutors

The New York Times detailed stories of misconduct by prosecutors, some now sitting judges, but the author’s article provided something that most civil rights attorneys already know:

Federal law already provides a mechanism to prosecute judges and district attorneys as criminals when they willfully deprive people of their civil rights: Title 18, Section 242, of the federal code.

This isn’t some dusty, rarely used legal tool. The Department of Justice typically wields Section 242 against police and correctional officers accused of physical or sexual violence. But Section 242 applies with equal force to those who prosecute and sentence, the state officials whose deliberate skirting of civil rights can be most devastating.

At least, that’s how it is on paper. The federal government has not in recent memory pursued a judge under Section 242, and it has only rarely enforced this law against prosecutors.

It is absolutely essential to bring rogue law enforcement officers to justice, particularly in a post-Ferguson world in which violations of constitutional rights have come under intense scrutiny. However, the government’s focus on abuses by law enforcement officials leaves the burden of curbing abuse by judges and prosecutors to private individuals.

This is a responsibility few lawyers are willing to accept, in large part because the United States Supreme Court has made pursuing a civil case against a prosecutor or judge practically impossible.

Other news media, such as the Huffington Post, have covered similar stories. Brandon Buskey, an attorney with the ACLU and author of the New York Times article, concluded that:

There is a solution: federal criminal prosecutions of state judges and prosecutors who flout the law. The nearly insurmountable barriers to justice in civil court don’t apply in criminal prosecutions. Indeed, the Supreme Court has invoked the availability of Section 242 prosecutions to justify its sealing of federal courthouse doors against people seeking to vindicate their civil rights.

Last month, the Department of Justice provided a rare glimpse of the law’s untapped potential. A Missouri prosecutor pleaded guilty under Section 242 of concealing police officers’ brutal assault of an arrestee, then prosecuting the victim on charges the officers fabricated to cover up their crime.

Missouri marks a promising, yet incomplete mandate. Judges and prosecutors violate civil rights every day, in plain sight, and with seeming impunity. To make them answer for these crimes, the federal government must continue to extend its reach beyond the streets and into the courtroom.

Read the entire article at  the New York Times.

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