The term “rogue prosecutor” was coined to refer to unethical, even criminal prosecutors who lie, cheat, and engage in every stripe of professional misconduct to secure criminal convictions.
The U.S. Supreme Court has effectively given its constitutional blessing to this prosecutorial misconduct, sending dozens of innocent people to death row and tens of thousands more to prison.
Prosecutorial misconduct got so bad in New York that in 2018 the state’s legislature created an 11-member State Commission on Prosecutorial Conduct, whose purpose is to root out “rogue” prosecutors and recommend sanctions, from warnings to termination, for those found to have engaged in misconduct.
New York took this drastic action after it found that one-third of the state’s 250 exonerations between 1989 and 2018 involved prosecutorial misconduct. The New York-based Innocence Project released a study in 2016 that identified 148 cases of prosecutorial misconduct over a previous five-year period.
In a 2013 report, the Center for Prosecutor Integrity found that “Each year, thousands of Americans are victimized by prosecutors who overcharge, withhold key evidence, and engage in a myriad of other forms of professional misconduct. When these persons seek redress, they encounter denial, resistance, and delays. More often than not, their efforts to receive even an apology end in futile exasperation.”
The Center, and the Innocence Project identified the following common characteristics of a truly “rogue” prosecutor:
- Charging a suspect with more offenses than is warranted.
- Making race-based jury selection decisions in violation of Batson v. Kentucky.
- Withholding or delaying the release of exculpatory evidence.
- Deliberately mishandling, destroying, or “losing” evidence.
- Allowing witnesses they know or should know are not truthful to testify.
- Pressuring or threatening defense witnesses not to testify.
- Pressuring or threatening witnesses to testify for the prosecution.
- Relying on fraudulent forensic experts.
- Overstating the strength of the evidence during plea negotiations.
- Making statements that arouse public anger and cause bias.
- Making improper or misleading statements to the jury or court.
- Failing to report misconduct by other prosecutors.
Those forms of professional misconduct generally defined what it meant to be a “rogue” prosecutor, i.e., unethical, dishonest, and even lawless.
Over the last decade, several high-profile prosecutors—like Larry Krasner in Philadelphia and George Gascon in Los Angeles—were elected to office on platforms geared at cleaning up prosecutorial misconduct in the legal profession.
These elections did not set well with the prison industry and corrupt police unions that work hand-and-glove with conservative political activists who view “prosecutorial reform” as a soft-on-crime liberal agenda.
Conservative legal writers like Zack Smith and Charles “Cully” Stimson, who are legal fellows with the Meese Center for Legal Studies, decided to co-opt the term “rogue prosecutor” to define reform-minded prosecutors like Krasner and Gascon.
In a February 2022 piece for the arch-conservative political activist group, the Heritage Foundation, the duo used “rogue prosecutors” to say that reform-minded prosecutors are the reason for “rising crime” in America. They opened their extremely biased attack on reform-minded prosecutors with what are now common dog whistles:
“The very nature of criminal justice—to protect the innocent and increase public safety—is today undermined by a group of district attorneys (Das) in America’s big, mostly Democratic-run cities.
“These rogue prosecutors, and those who fund them, dress up their schemes with poll-tested feel-good language like ‘re-imaging prosecution,’ and argue that ‘data and science’ back their pro-criminal, anti-victim approach.
“But that’s just nonsense when you see the actual results of their pro-criminal policies—social disorder, mass shoplifting, open prostitution, and drug markets, and, in many cases, record numbers of shootings and murders.”
Besides Krasner and Gascon, Smith and Stimson then labeled prosecutors in St. Louis, Boston, San Francisco, and Chicago as responsible for the violent crime rate in America.
But here are the facts that two conservative propagandists chose to ignore:
The murder rate in the 25 deep red Republican states that voted for Donald Trump far exceeded the murder rate in the 25 deep blue Democratic states that voted for Joe Biden every year between 2000 and 2020. In fact, the murder rate in Republican states in 2019 and 2020 rose more per capita, 44 and 43 percent, over the 9 percent per capita in 2003-04.
Twelve of these 21 years were under “law-and-order” Republican presidents in states with large cities where “law-and-order” prosecutors engaged in the most flagrant misconduct to secure criminal convictions at any cost.
The four states with the nation’s highest murder rates per capita—Mississippi, Alabama, Louisiana, and Missouri—are all “deep south” death penalty-loving, “tough on crime” states with prosecutors who have routinely failed to protect the public, particularly in economically disenfranchised areas.
That’s why it smacks of political hypocrisy that a group of Republican lawmakers this past February introduced a bill in Congress called the Prosecutors Need To Prosecute Act—a bill designed to attack the prosecutorial practices of the “rogue” prosecutors identified by Smith and Stimson.
One of the main sponsors of the bill, Sen. John Kennedy (R-La) had this to say about these rogue prosecutors:
“Criminals are victimizing innocent Americans, and woke prosecutors are letting them do it over and over again. Louisianians and all Americans deserve to know when their district attorneys refuse to stand up for victims. Our bill would require prosecutors to report what crimes they fail to prosecute so that Americans can better hold their public servants accountable.”
A co-sponsor of the bill—Texas Senator Ted Cruz, who never misses a moment to jump on the intellectually dishonest bandwagon—chimed in with these Republican talking points:
“With crime on the rise in Democrat-led cities across the nation, it is imperative that these Soros-backed prosecutors work, do their jobs and get these violent offenders off our streets, instead of allowing career criminals to run rampant in our community. Catch-and-release is enough of a disaster on the Texas-Mexico border. The last thing we need is to institute it in our courts. I’m proud to stand with Sen. Kennedy and our colleagues to demand transparency about this abdication of professional responsibility.”
Not to be outdone by their federal counterparts, Texas Republicans in this past legislative session passed a law they said would rein in “rogue” prosecutors who refuse to prosecute abortion-related or voter fraud cases. “House Bill 17 would allow the courts to remove district attorneys for misconduct if they choose not to pursue certain types of crimes. The Republican priority legislation was proposed as a way to rein in “rogue” district attorneys in Texas’ large, left-leaning counties who have little appetite to pursue alleged abortion-related or election crimes.
So, now, the nation’s criminal justice system has two kinds of “rogue” prosecutors—those who prosecute with unethical, lawless zeal and those who do not prosecute enough. Two plus two is five…