New York State Commission on Prosecutorial Conduct
On August 20, 2018, New York Governor Andrew Cuomo (D) signed into law S2412--D, creating the New York State Commission on Prosecutorial Conduct. The bipartisan bill creates article 15-A which adds to the judiciary law the first regulatory authority overseeing prosecutors in the United States. The commission acts as an extension of the governor’s office to ensure ethical behavior and publically punish misconduct.
The eleven person commission has the authority to investigate and render punishments in cases of prosecutor misconduct. This encompasses failure to maintain standards of professional conduct in terms of relevant statutes, case law, and New York Bar Association rules of conduct. Prosecutor misconduct also extends to matters of the prosecutor’s qualifications and ability to faithfully conduct with integrity the essential tasks of their office. While Brady violations are not mentioned by name in the law, it appears that breach of discovery laws would be well within the commission’s jurisdiction. The commission can issue admonishments or censures and recommend for the prosecutor to be removed or retired. A recommendation to remove the prosecutor must be approved by the governor. The commission does not need approval to enforce all other punishments.
The commission’s eleven members are appointed by members of all three branches of the state government. The chief judge of the court of appeals selects three members; the governor, president of the senate, and speaker of the assembly each select two members; and the minority leader of the senate and minority leader of the assembly each select one member. The appointees will be a mixture of public defenders, prosecutors, and judges. Appointees’ terms on the commission range from two to four years in length with the commission chairman serving in that capacity for no more than two years. Appointees will receive no salary or other compensation resulting from their service to the commission.
If the commission finds credible a complaint brought to them, they will conduct their investigation through preliminary investigation, culminating in a hearing with the accused prosecutor. A transcript will be kept of all hearings and examinations of, or relating to, the accused prosecutor. However, all commission records are confidential and will not be released to the public without the written authorization of the accused prosecutor. The hearings will be private and fully confidential as well, unless stated otherwise by the accused prosecutor. Not all investigations will go to a hearing as the accused prosecutor can agree to a statement of facts--a plea deal--and the commission will render punishments based on the statement of facts. The commission will release an opinion regarding their findings and conclusions at the end of each investigation.
The commission only addresses prosecutor actions that are explicitly illegal or violate professional ethical standards. The commission does not have the authority to address any other aspects of prosecutor conduct, such as tactics involved in offering plea deals. It will render an annual report on its work to the governor, state legislature, and court of appeals by March 1st each year.
(Photo by Brandon Mowinkel on Unsplash)