by David D’Amato, published on Counterpunch, May 14, 2025
Today, it would be nearly impossible to overstate the extent to which justice for the criminal defendant in the U.S. has been compromised by prosecutorial misconduct of the most serious kinds. A growing body of evidence from journalistic investigations, scholarly studies, and reports from civil liberties groups reveals a startling pattern of serious misconduct, lack of transparency and accountability, and politicized and racialized enforcement.
At the center of this system of injustice and impunity is the Department of Justice. Prosecutors, especially in the federal government, wield immense power and exercise broad discretion. In criminal litigation, the government has a host of tools that are unavailable to others and that far overshadow the Bill of Rights in terms of their practical importance to real-world outcomes.
But the immunity shielding the misconduct of prosecutors is extremely strong, meaning that practically speaking there is almost never accountability for prosecutorial misconduct. For example, they have absolute immunity from civil claims for all actions undertaken in their role as advocates. Though they are some of the most powerful and respected people in the legal system, there is almost nothing federal prosecutors can’t get away with under the prevailing system of immunity. Americans accept this patently unjust system mostly unconsciously—that is, because they don’t know and it doesn’t affect them. Indeed, even our liberals rush to the defense of this malignant institution.
The DOJ is arguably alone among federal agencies in its degree of opacity and in its lack of accountability: it is the only federal government body whose inspector general is not permitted to investigate allegations of misconduct by its lawyers—an explicit exception mandated by federal statute. While the DOJ houses an Office of Professional Responsibility, lack of transparency is its official policy, as it “does not include names or personal identifying information in the summaries of its investigations.”
One of the most frequent and persistent themes of the literature of prosecutorial misconduct is the illegal and unethical withholding of exculpatory evidence. Under the Supreme Court’s decision in the 1963 case Brady v. Maryland, the government must share evidence tending to show the innocence of the accused. In Brady, the government intentionally withheld an extrajudicial statement given by a companion of the defendant, in which the companion admitted to the killing at issue in the case. The defendant was sentenced to death.
The Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” But today, Brady violations are practically ubiquitous in the system and almost always go unpunished. Many of these violations have cost innocent people decades of their lives, and some defendants have paid the ultimate price, executed for crimes they did not commit, while prosecutors knowingly withheld evidence and committed frauds on the court.
In the “largest-ever examination of Brady violations,” published last year (August 2024) legal scholars at Notre Dame found that such violations are indeed routine, permeating the system. While their study suggests that “a substantial minority” of these violations arise from mistakes of prosecutors acting in good faith, the truth it that the evidence about the intentionality of Brady violations is not well-developed. This is because that question addresses the subjective mental state of violating prosecutors—who, importantly, have been given no reason to comply with the Constitution or to tell the truth. Simply, the evidence discussed in the paper does not show that the pervasive Brady violations we find in criminal cases are the result of prosecutors acting in good faith.
Another of the DOJ’s favorite abuses of power is the national security letter. Using this administrative subpoena process gives the DOJ the power to obtain certain private files without the knowledge or permission of a judge, and it conveniently compels the silence of the recipient of the request. This allows the government to take private records without judicial approval, while forbidding recipients of these demands from speaking out and exposing the practice to sunlight.
But perhaps no aspect of the criminal justice system today better reveals its true character than the plea bargain. The use of coercive tactics to push vulnerable defendants into relenting and accepting unconscionable terms has effectively stripped away all of the Constitution’s prescribed protections for criminal defendants. The use of plea bargaining to escape the challenges of prosecuting and trying cases within constitutional constraints has created a crisis of injustice in our country.
While legal scholars have been inclined to accept the validity of plea bargains as a roughly fair reflection of the outcomes that could have been expected from trials, this position has become increasingly untenable and inconsistent with available evidence. As mandatory sentences and sentencing guidelines proliferated, the use of coercive plea bargaining in criminal matters became even more obviously inimical to the provision of justice.
Writing in 2004, Stephanos Bibas, today a judge of the U.S. Court of Appeals for the Third Circuit, argued that the accepted narrative about the role of plea bargaining in the criminal justice process discounted key facts. Bibas saw that our “oversimplified model ignores how structural distortions skew bargaining outcomes,” leaving defendants with virtually no choice but to waive their constitutional rights through plea deals. Bibas observed the presence of “legally irrelevant factors” that nonetheless impact the fairness of punishments doled out under plea agreements.
When you have the power to threaten almost every defendant into pleading guilty, you have the power to preempt the constitutional protections granted to criminal defendants. The trial right, for example, vanishes as a practical matter. This has been standard procedure in the federal govt for decades.
In fiscal year 2022, for example, less than half of one percent of federal criminal defendants were acquitted. According to a report from the American Bar Association, in any given year, over 98 percent of federal criminal cases conclude with a plea agreement. This figure is consistent with the U.S. Sentencing Commission’s 2023 Annual Report, which notes that “the overwhelming majority of sentenced individuals pleaded guilty (97.2%).” DOJ offices aim not only for high conviction rates, but for heavy caseloads, keeping track of the number of defendants per Assistant United States Attorney.
Defendants behave rationally with the hand they are dealt: those who choose trial, despite mounting pressure to opt for a deal, find that most who go to trial are still convicted. Even worse, they receive harsher penalties, a phenomenon that has come to be known as the trial penalty. The National Association of Criminal Defense Lawyers describes the trial penalty as “the massive difference between the sentence criminal defendants typically receives after a plea bargain and the much higher sentence defendants typically receive if they are convicted at trial.”
Given these facts, it is no exaggeration to say that the DOJ is home to some of the very worst lawyers in the country—both in terms of skill and ethics. When nearly every one of your cases ends in a coerced plea deal and you virtually never have to go to trial, it’s safe to say you’re living on easy street. In their heedless lionization of the DOJ, the mainstream “resistance” reveals that it knows very little about the way that our justice system functions—with or without Donald Trump. It is yet another disheartening example of how our politics, across both major teams, is purely vibe-driven, based on how things are coded within the popular conversation. Much of the “resistance” has apparently failed to notice that the prisons do not just fill themselves up on their own. Prosecutors have that job as much or more than cops do. It doesn’t make much sense to criticize the police for racist mass incarceration only to turn around and heap praise on the special, fancy people who have the privilege of not having to carry a weapon; they are no less deploying violence.
One way to understand these phenomena is as necessary aspects of an authoritarian system in need of a way to control those who, in Marx’s terms, have been “made relatively superfluous,” “turned into a relative surplus population.” Under our political and economic system, large segments of the population are effectively closed out of the formal economy. Prosecutors play a crucial role in managing and disciplining such populations on behalf of the state and capital, normalizing abusive relationships of power.
Society would not tolerate such degrees of ethical license, coercion, and patent unfairness in both process and result if it weren’t for the prosecutor’s role. The prosecutor makes the process legitimate, a reputation launderer for the power of the state. He is no less an agency launderer, using a complex, opaque, and expensive administrative process to obscure the crimes being committed against defendants and prisoners. The cachet of the law interposes itself cynically between the actors and their moral responsibility, as an obfuscation. The guidelines and processes that apply within the criminal justice system systematically disadvantage defendants, but they are treated as neutral aspects of the law. This process of normalization has taken the form of the criminalization of Blackness in the United States. Today, this process is evident in the Trump administration’s claims that graduate students and scholars protesting atrocities in the Gaza Strip are supporting terrorism. Or its blanket claims that Hispanic and Latin Americans are connected to gangs.
The criminal justice system constitutes a form of biopolitical management, in which practices originally regarded as exceptional become routine, and the harshest penalties are a mundane everyday matter. The role of the plea bargain is to render all of this “voluntary.” In theory, defendants don’t have to accept any offer, but because almost all cases end in a plea deal, rejecting one must be irrational. In the reframing of demonstrably coercive practices as consensual and producing agreements, the plea system was able to make the mass forfeiture of constitutional rights socially acceptable.
This is how a constitutional system of strong protections becomes an administrative process for shuffling people into long prison sentences right before our eyes. Because this process of administering pleas has become the default means of adjudication, those who perform this function have been able to convert their work into a form of symbolic capital. Prosecutors, particularly AUSAs, occupy positions of unearned status by controlling the criminal plea system. In virtual anonymity, with blanket immunity for the most serious crimes, they have been given the privilege of tending to a system whose disparate impact on Black Americans and poor people has become infamous. The plea bargain system replaces real due process, instead reproducing white supremacy by calling these deals consent.
The way we treat federal prosecutors hints at a fundamental flaw in the American government’s self-conception: from an empirical perspective, its commitment to due process, even at the best of times, is a mere facade, hiding a process of rote administrative steps that pretends to represent robust adherence to constitutional principles and protections for the most vulnerable people in society.
Prosecutors’ pervasive misconduct and subordination of traditional due process with constitutional protections to an administrative process lacking safeguards or accountability has fatally undermined the credibility of the current system. It is no exaggeration to say that the Department of Justice is terrorizing citizens of the United States, having become a tool of injustice and corruption.
*Featured Image: Photograph Source: ajay_suresh – CC BY 2.0