This CUNY Law Review Journal Article Explains Exactly What Is Broken and Why Prosecutors Get Away With It
Clutch Justice Analysis
January 2026
There is a habit in criminal justice reform circles of talking around the problem. We use words like “discretion”, “error”, or “isolated misconduct”. We debate training and ethics as if the issue is personal failure rather than system design.
Written by Bina Ahmad of the Civil Rights Corps, the CUNY Law Review article The Professionalized Violence of Prosecutorial Power and Misconduct does not do that.
It names the problem plainly. Prosecutorial power functions as institutionalized harm, delivered through professional norms, legal immunity, and cultural reinforcement. Not occasionally. Not accidentally. Structurally.
This matters because once you see that, a lot of familiar patterns stop looking mysterious, and start making a whole lot more sense.
Prosecutors Do Not Just Enforce the Law. They Shape Reality.
Prosecutors decide which cases exist at all. They decide how aggressively to charge, what evidence to disclose, what deals to offer, and whether a case ever sees a jury.
That power is not checked in any meaningful way. Ever.
The article makes clear that this is not an oversight. Prosecutorial authority is intentionally insulated. Absolute immunity protects courtroom conduct. Bar or Grievance Commission discipline is rare and toothless. Judicial reprimands almost never translate into professional consequences.
When harm occurs, the system treats it as unfortunate but completely acceptable collateral damage.
That is not a bug. That is the design.
Why Immunity Matters More Than Intent
A recurring distraction in misconduct discussions is intent. Did the prosecutor mean to withhold evidence? Did they know the harm they were causing?
The article cuts through that.
Intent does not matter when accountability mechanisms are structurally absent. Absolute immunity means that even proven constitutional violations often carry no civil consequence. Disciplinary systems rely on self reporting and institutional goodwill from the very actors they are supposed to oversee.
When there is no consequence, behavior stabilizes around what is rewarded. Prosecutors are rewarded for convictions, speed, and compliance with office culture. They are not rewarded for restraint or repair.
As a result, harm persists regardless of motive.
Professional Culture Is Doing the Work
One of the strongest parts of the article is its focus on professionalization. Prosecutors are not rogue operators. They are trained into a role that normalizes coercion and control as legitimate tools.
For prosecutors, framing is king. Overcharging is framed as leverage. Withholding discovery is framed as strategy. Plea pressure is framed as efficiency.
Because these behaviors are professionally sanctioned, they become invisible. They are not seen as violence, even when they destroy lives.
This is exactly how harm hides behind credentials.
Why Prosecutors Get Away With It
People often ask why misconduct rarely results in discipline. The answer is really not complicated.
Most cases will never reach trial; that’s a fact. And as a direct result, most harm never reaches appellate review. Even when courts identify misconduct, they often excuse it away as harmless error. Even when opinions are published, bar authorities rarely act.
The article demonstrates that accountability fails at every layer, not because no one knows better, but because the system will always protect itself.
Prosecutors are essential to the functioning of courts as they currently exist. That makes them politically untouchable. Oversight threatens throughput, throughput is treated as justice.
So harm is absorbed. Defendants pay the price. Communities absorb the fallout.
The institution moves on.
This Is Not About Bad Actors
The most important contribution of this article is that it refuses to individualize the problem.
You can replace one prosecutor with another and the outcomes remain the same. You can add ethics trainings and the incentives still point toward harm. You can shame misconduct cases and the culture continues uninterrupted.
The issue is structural power without structural accountability.
Until that changes, the harm continues regardless of who holds the office.
When Institutions Protect Themselves by Reframing the Critic
Another interesting intersect from the article, and one worth discussing, is the high price people pay for speaking up when they encounter prosecutorial misconduct.
If there is anything I have learned during my time in advocacy and applied scholarship, it is this: what often gets mislabeled as personal failure is actually institutional response to someone speaking up.
What happens to individuals who challenge prosecutorial power is not at all due to lack or loss of capacity. It occurs as a result of seeing the system a little too clearly. Instead it is a collision with a system that does not tolerate exposure, especially when that exposure is procedural, documented, and persistent.
The CUNY Law Review article on professionalized prosecutorial harm describes this dynamic in formal language; not emotionally, but structurally.
Systems that rely on opacity and discretion protect themselves when someone begins mapping their failure modes too clearly. When critique shifts from individual complaint to pattern recognition, institutions frequently respond by reframing the critic rather than fixing the flaw.
That response is not personal. It is reputational, procedural, and narrative-based.
This is how power stabilizes itself.
People are not punished because they are wrong. They are punished because they outpace the system’s tolerance for being seen, without the positional protection that makes truth survivable.
This pattern is well-documented across law, academia, medicine, and government. The article names it. Many people live it. The difference between then and now is not resilience or resolve. It is context and container.
Then, the work happened inside the blast radius. There was no institutional cover. The analysis moved faster than the system could metabolize, so the system, when accused of misconduct, will always redirect attention toward the person rather than the real design problem.
For those of us who learn our lesson, our work now happens at a distance. Experience is translated into structured analysis. The venues are chosen intentionally. Scrutiny is expected rather than punished.
What others may define as retreat is anything but. It is maturation of strategy.
This is also why systems-aware organizations read as safer environments. Not because they are benign, but because they already acknowledge institutional failure as a design reality rather than a reputational threat.
The moral error people often internalize is this: that being hit means being wrong.
In reality, truth without power, speaking up against prosecutorial misconduct even when clearly wrong, is treated as disruption.
The difference now is not silence or compromise. It’s changing the narrative on the topic. It’s preventing emotional reaction. It is the deliberate building of power through role, structure, and legitimacy rather than proximity to harm.
That is not selling out; it is surviving long enough to matter.
Why This Matters
If prosecutorial power is professionalized harm, then reform cannot be cosmetic.
Body cameras do not fix charging decisions. Transparency reports do not fix immunity. Elections do not fix a culture that rewards harm behind closed doors.
Real reform would mean confronting prosecutorial exceptionalism directly, and not pushing those who encounter it when they speak out. Limiting immunity. Mandating external discipline when courts find misconduct. Creating oversight bodies that are not dependent on prosecutor cooperation.
Most importantly, it would mean admitting that the system is doing exactly what it was built to do.
That is why it is essential that we assign language to what so many people experience but struggle to name. That we prevent the punishment of Because unnamed harm is harm that is allowed to continue indefinitely.
Sources
Ahmad, Bina. The Professionalized Violence of Prosecutorial Power and Misconduct. CUNY Law Review, Vol. 27, Issue 2.
Niles, J. et al. A New Balance of Evils: Prosecutorial Misconduct, Iqbal, and the End of Absolute Immunity. Stanford Law School.
