Emory Law Journal


Black defendants are executed at a disproportionately high rate, an injustice quietly persisting in the shadow of America’s dark history of slavery and Jim Crow. While a variety of intersectional factors have perpetuated this injustice, the role of prosecutors who commit misconduct to secure a conviction is significant. Defendants are presumed innocent until proven guilty, but when the prosecutors who carry the burden of proving that guilt choose not to play by the rules, they wantonly and recklessly embrace the risk of convicting—even killing—an innocent person.

This Comment focuses on two primary forms of prosecutor misconduct: Batson violations that occur during jury selection when a prosecutor uses his or her peremptory strikes in a racially discriminatory manner, and Brady violations that occur when the prosecution suppresses materially exculpatory evidence from the defense. While the Supreme Court has established Fourteenth Amendment safeguards to protect criminal defendants from these forms of misconduct, this Comment argues that those safeguards are incomplete. Fourteenth Amendment jurisprudence fails adequately both to deter prosecutorial misconduct and to guarantee that criminal defendants receive a fair trial. These failures are only amplified for Black capital defendants, who experience disproportionally higher rates of prosecutor misconduct and capital sentencing.

Seeking to better deter incidents of prosecutor misconduct and better ensure Black capital defendants receive due process of law, this Comment proposes a four-part Model Act. Inspired by the Sentencing Reform Act of 1984 and the Federal Sentencing Guidelines, this Act (1) creates a state commission for prosecutor misconduct, (2) charges the commission with the role of drafting advisory guidelines for classifying prosecutor misconduct, (3) mandates that the commission consider the guidelines prior to imposing sanctions on prosecutors found to have committed misconduct, and (4) mandates that state judges consider the guidelines prior to imposing remedies for cases affected by misconduct.