If you ask the public how prosecutors are held accountable, you’ll usually hear some version of this: elections, ethics rules, internal supervision, and the courts. It sounds reassuring, right?
Well unfortunately for us, it also collapses under even casual scrutiny.
Legal scholars have been pointing this out for decades, but the gap between what the public expects and what actually exists has only widened. Prosecutors exercise enormous discretion over charging, plea bargaining, evidence disclosure, and sentencing exposure. Yet the mechanisms meant to restrain that power rarely produce meaningful consequences, let alone intervene, when things go horribly wrong.
Elections Are Not Accountability. They’re Optics.
Elections are the most commonly cited justification for prosecutorial power. If a prosecutor abuses discretion, voters can remove them….In theory.
In practice, elections reward conviction rates, “tough on crime” rhetoric, and political branding. Voters are rarely informed about discovery violations, coercive plea practices, or internal misconduct, and even when those issues surface, they are usually reframed as “mistakes” or “isolated incidents.”
As scholars Ronald Wright and Marc Miller explain, democratic accountability mechanisms do not translate well to prosecutorial work because the public lacks access to the information necessary to actually evaluate their performance meaningfully.
So what happens? Elections end up incentivizing image management, not legal integrity. You’re getting the version of truth that prosecutors feed you so they can keep their job.
Internal Oversight Is Not Independent Oversight
Prosecutorial offices often point to internal policies, supervisory review, and training as safeguards. These mechanisms sound robust until you remember one thing: they are controlled by the same institution they are meant to regulate.
Internal review rarely results in discipline that is public, consistent, or corrective. Offices may revise policies after scandals, but individual accountability is uncommon. The system treats the existence of rules as proof of enforcement, even when violations produce no consequences.
This is not a failure of implementation. It is a structural conflict of interest.
Courts Are a Weak Backstop
Judicial review is often cited as the “final check” on prosecutorial misconduct. In reality, courts are highly deferential to prosecutors, particularly on questions of discretion and materiality. Even when misconduct is found, remedies typically fall on defendants rather than prosecutors.
Convictions are preserved. “Harmless error” is invoked. Rarely, if ever, does misconduct result in sanctions that meaningfully deter future behavior. The message is clear: prosecutorial errors are regrettable, but not disqualifying.
Transparency Has Not Closed the Gap
Some scholars argue that increased transparency and data collection could improve accountability. While transparency is necessary, it is not sufficient. Data without consequences does not restrain power; it simply documents its use.
The persistence of wrongful convictions, repeated discovery violations, and systemic plea coercion suggests that informational reforms alone cannot correct a system where discretion is insulated from enforcement.
Just as counties that drive up mass incarceration should be billed for it, unethical actors in the system will not change their ways until they actually “feel” the weight of their actions.
The Accountability Deficit Is Structural
The literature is blunt on this point: across jurisdictions, prosecutorial accountability mechanisms consistently underperform relative to public expectations. The public believes prosecutors are constrained by law and oversight. In reality, prosecutors are constrained primarily by norms, incentives, and politics, not enforceable consequences.
That gap is not theoretical; it is experienced by defendants, families, and communities every day.
Why This Matters
The justice system relies on trust that prosecutorial power will be exercised responsibly. But trust without accountability is not trust. It is simply delegation without limits.
Until prosecutors face real, external, enforceable consequences for misconduct, the promise of accountability will remain aspirational. And the public will continue to believe in safeguards that exist mostly on paper.
Sources
- Wright, Ronald F., and Marc L. Miller. The Worldwide Accountability Deficit for Prosecutors. Washington and Lee Law Review, Vol. 67, Issue 4 (2010).
https://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/9/ - Miller, Marc L., and Ronald F. Wright. Prosecutorial Accountability. Notre Dame Law Review, Vol. 102 (2016).
https://ndlawreview.org/wp-content/uploads/2016/12/NDL102.pdf - Davis, Angela J. The American Prosecutor: Independence, Power, and the Threat of Tyranny. Iowa Law Review, Vol. 86 (2001).
https://digitalcommons.wcl.american.edu/facsch_lawrev/1397/
