Two Terms ago in Kelly v. United States, the Supreme Court vacated the convictions of the three government officials behind “Bridgegate.”
The defendants in Kelly used a series of lies (or in their words, a “cover story”) to get the Port Authority of New York and New Jersey to change the traffic-lane allocation on the world’s busiest drive-on bridge in order to mete out political punishment to a suburban mayor.
Justice Elena Kagan, writing for a unanimous Court, certainly didn’t mince words when describing the defendants’ conduct; they had engaged in “wrongdoing—deception, corruption, [and] abuse of power.”
But the Court’s opinion just as forcefully drove home another point: The defendants hadn’t committed a federal crime.
Kelly is the most recent Supreme Court decision in a decades-long line of cases pushing back on the application of federal criminal statutes to state and local government officials who abuse their office. Federal criminal law, as the Court emphasized in Kelly, can and should go only so far in this politically sensitive area:
The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify. Cf. N.J. Stat. Ann. § 2C:30-2 (2016) (prohibiting the unauthorized exercise of official functions). . . .
. . . .
To rule otherwise would undercut this Court’s oft-repeated instruction: Federal prosecutors may not . . . “set standards of disclosure and good government for local and state officials.”
While limiting federal authority, the Court (in the quote above) pointed out an interesting tool that states have in their anticorruption toolkits: official misconduct statutes. Though relatively obscure heading into the decision, these statutes boast an impressive common law pedigree, and they’ve had quite the year and a half since Kelly when it comes to headlines. A former Oregon state representative pleaded guilty to official misconduct for letting rioters into the state capitol during a special legislative session, leading to an altercation with the police that left six officers injured;
the Michigan Attorney General indicted nine former and current officials allegedly responsible for the Flint water crisis for official misconduct;
a landmark New Jersey criminal justice bill stalled after a state senator added official misconduct to the list of offenses the bill would remove mandatory minimums from;
and former aides to the Texas Attorney General wrote a public letter alleging that he—among other things—violated Texas’s version of the statute.
Official misconduct is on the books in twenty-three states and territories and recognized as a common law crime in another three.
Though there’s state-by-state variation, the statutes generally prohibit (1) a public official (2) acting with the intent to obtain a benefit (3) from committing an act relating to his or her government office (4) knowing that such act is unlawful.
As the elements and above examples suggest, these statutes are dynamic prohibitions that apply to a wide array of conduct. Importantly, they allow states to prohibit actions by officials that are both difficult to anticipate ex ante and which federal statutes (either because of judicially imposed limits or institutional caution) cannot reach. Kelly itself provides one example of culpable conduct not reached by federal criminal law but most likely cognizable as official misconduct. And others are unfortunately not too hard to come by. Think of the police chief who covers up the involvement of the mayor’s son in a string of local crimes;
the special prosecutor (not quite that kind, but the irony is still there) who gives favorable treatment to friends and the politically connected without agreeing to a clear quid pro quo;
the county commissioner who doesn’t recuse himself from a vote, knowing that a conflict of interest law requires doing so;
or the police officer who knowingly fails to file use-of-force paperwork, undercutting democratically imposed oversight measures.
But at the same time, the open-textured nature of official misconduct statutes should give us pause. Whether as a policy matter or doctrinally under the void for vagueness framework, there’s a real concern that such dynamic statutes can’t provide defendants with adequate notice or channel prosecutorial discretion in a way that avoids abuse. Moreover, some might object on democratic legitimacy grounds to the heavy role courts and agencies—not legislatures—play in fleshing out the contours of what counts as official misconduct.
Weighing these competing features, this Comment offers tentative support for state official misconduct statutes. That said, the conduct the statutes reach is indeed broad, and the determination of whether particular conduct is worthy of criminal sanction or more appropriately left to internal, administrative discipline will often be a difficult one. Therefore, states with official misconduct statutes should pay close attention to structural safeguards that can channel prosecutorial discretion and help ensure official misconduct statutes are used responsibly. Specifically, this Comment argues that states should increase the control exercised by state attorneys general (compared to county or city prosecutors) over official misconduct statutes in particular and the prosecution of government misconduct in general.
Proceeding in four Parts, this Comment overviews the official misconduct landscape, using Kelly and related Bridgegate proceedings to set the scene. Part I sketches the two broad categories of federal criminal statutes applicable to state and local officials who abuse their office. Part II turns to state official misconduct statutes and walks through their elements and sentencing consequences. Part III discusses the pros and cons of these statutes: enforcement utility on the one hand and a potentially worrisome amount of discretion on the other. Part IV concludes by weighing these competing features and proposing ways of mitigating the risk of prosecutorial abuse under official misconduct statutes.
I. Federal Criminal Law Through Bridgegate’s Lens
This Part uses the Supreme Court and Third Circuit’s Bridgegate decisions to briefly overview the two main areas of federal criminal law that apply to state and local government officials who abuse their office. Bridgegate arose out of three political actors’ mismanagement of the resources of the Port Authority of New York and New Jersey.
With the aim of winning reelection for then-Governor Chris Christie, the Kelly defendants “avidly courted Democratic mayors.”
One hoped-for endorsement was that of the Mayor of Fort Lee; as a result, the town received “an expensive shuttle-bus service” and other pork-barrel spending.
When the mayor nonetheless declined to endorse Christie, the defendants shifted from courtship to punishment.
For decades, three east-bound lanes on the George Washington Bridge had been set aside exclusively for Fort Lee commuters heading into New York City.
The defendants decided to alter this practice on “the (traffic-heavy) first day of school,” cutting Fort Lee’s lanes from three to one.
To do so, they came up with a “cover story” and described the change as part of a traffic study.
The lane-allocation change had its intended result, and traffic came to a halt. School buses arrived hours late; an ambulance sat in traffic unable to reach a 911 caller; and the police struggled to respond to a missing-person report.
Moreover, Bridgegate cost taxpayers thousands of dollars in wasted wages. The scheme’s perpetrators dedicated (and were paid for) upward of fifty hours of work; three employees spent nearly forty hours analyzing data from the “study”; and the Port Authority had to pay toll-booth workers overtime rates.
When the smoke cleared, federal prosecutors—historically the primary enforcers of anticorruption law at the local, state, and federal level
—charged the three individuals behind Bridgegate. The charges fall into two categories: official corruption and intentional civil rights deprivations. The following sections take these categories in turn.
A. Official Corruption
In Kelly v. United States, the Supreme Court vacated the defendants’ program theft and wire fraud convictions in a unanimous decision.
Viewed narrowly, the Court’s decision came down to the property-deprivation element in each statute.
In the Court’s view, neither the defendants’ alleged attempt “to commandeer part of the Bridge itself” (that is, “to take control of its physical lanes”) nor their defrauding of the Port Authority of “the costs of compensating . . . traffic engineers and back-up toll collectors” satisfied the requirement.
The first charging theory simply didn’t allege a property interest in the hands of the government.
The second theory did, but the prosecutors didn’t show the requisite mens rea in this case—that the defendants’ scheme was “directed at” effecting this property deprivation.
The deprivation was instead just an “implementation cost” of their scheme aimed at political payback.
But to fully understand Kelly, you have to place it within the larger context of the Supreme Court’s approach to official corruption.
Over the last three decades and across several different statutes, the Court has narrowed the reach of federal official corruption law (sometimes dramatically so).
Taken within this broader context, Kelly was more than a cut-and-dry statutory interpretation case. It was about whether federal prosecutors could, through clever pleading, sidestep judicially imposed limits in the official corruption area
that are the product of vagueness concerns,
First Amendment values,
and federalism principles.
As the above shows, the answer was an emphatic no. The upshot of the Court’s official corruption precedent—with Kelly being the most recent instance—is that unless an official uses their office for naked economic gain (i.e., quid pro quo corruption or a scheme “directed at” effectuating a property deprivation), federal criminal law will likely have little to say on the matter.
B. Intentional Civil Rights Deprivations
A similar story played out at the court of appeals level. Before the Bridgegate case made its way up to the Supreme Court, the Third Circuit vacated the defendants’ convictions under two statutes that make it a federal crime to willfully deprive someone of rights guaranteed by federal law.
Like the official corruption statutes discussed in the previous section, the rights-deprivation statutes look broad on their face but are more limited in practice.
Federal prosecutors charged the Bridgegate perpetrators with conspiring to deprive Fort Lee residents of their substantive due process “right to localized travel on public roadways free from restrictions unrelated to legitimate government objectives.”
One key limitation on these statutes drove the Third Circuit’s rejection of the government’s theory: A right must be defined with a high degree of clarity before it can be the basis for a civil rights prosecution.
This “made specific” requirement largely tracks qualified immunity’s “clearly established” requirement in § 1983 and Bivens litigation. “[T]he contours” of a right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates” federal law.
Whatever the ultimate scope of the right to intrastate travel under the Federal Constitution, the Third Circuit concluded that a single circuit court decision setting out the right at a high level wasn’t enough to put the defendants on notice that their conduct was unlawful.
Two other limitations on these statutes’ reach are also worth noting, though they did not come into play in the Third Circuit’s analysis. The first is intent: The government must show that the defendant “willfully” deprived an individual of a right—that is, the defendant “act[ed] in open defiance or in reckless disregard of a constitutional [or statutory] requirement.”
The second is that Main Justice exercises a significant degree of control over 18 U.S.C. §§ 241 and 242 prosecutions, and it has been cautious in deploying these statutes—perhaps out of concern with bringing their common law–like quality into too stark of relief before the Supreme Court.
The result is that, though these statutes appear broad, they are used relatively rarely and are reserved mostly for law enforcement officials who have engaged in egregious uses of force.
II. Defining Official Misconduct
Thus, federal criminal law plays an important, but ultimately limited, role in ensuring integrity in state and local government—and one that the conduct at the heart of Bridgegate falls outside of. But as Kelly highlighted, states have their own tools, including official misconduct statutes.
Putting aside concerns about whether you could expect state charges to be brought at all in this instance,
the Court was likely right as a matter of substantive criminal law that the defendants were guilty of official misconduct under New Jersey law. Recognizing that the statutes vary from state to state, this Part overviews what official misconduct generally entails, discussing its elements and sentencing consequences.
1. Public Official. — Recall the elements of an official misconduct statute.
The first element, that the defendant be a “public official” or “public servant,” is straightforward in most applications, reaching anyone who is an employee of a “governmental instrumentality within the state.”
Official misconduct statutes therefore apply to elected political officials at both the state and local level,
police officers and sheriffs,
and corrections officials
(to name a few of the recurring categories of defendants). But given the breadth of state and local regulatory authority and service delivery, the list of official misconduct defendants runs the gamut of government employment.
Moreover, official misconduct—depending on the jurisdiction—may extend beyond these core applications to individuals who are employees of quasipublic entities,
individuals who wield state authority on a temporary basis,
or individuals who are set to assume, but have not yet taken, office.
2. Intent to Obtain a Benefit. — Second, defendants must act with the intent to obtain a benefit for themselves or a third party. In most jurisdictions, cognizable motivations go beyond pecuniary ones
and permit the prosecution of individuals who abuse their office for political reasons,
to provide favors to friends,
or to engage in sexual harassment or assault.
In some states, the statutes reach the varied motivations that fall within the rubric of personal benefit.
So, this element usually is not a point of major contention in official misconduct prosecutions. It does, however, provide defendants with a valid defense if they acted in good faith for the public benefit but did so mistakenly.
3. Act Related to Office. — Third, the charged conduct must relate to the defendant’s office. This element looks quite similar to federal courts’ analyses of the under-color requirement in § 242 prosecutions.
In the lion’s share of cases, the analysis is straightforward: Was the individual’s ability to commit the charged conduct a product of their office?
But sometimes—particularly where an official is charged for off-duty conduct—the analysis gets trickier. There, the analysis becomes highly fact-intensive and depends on, for example, whether the official displayed symbols of state authority or threatened state sanctions.
4. Knowing the Act is Unlawful. — This element, in application, is really two subelements: unlawfulness and knowledge of that unlawfulness. On the first subelement, the main question is which sources of law are sufficient to establish unlawfulness. And here, there’s significant variation among jurisdictions. Some states impose a low bar, permitting employee handbooks
or even judicial determinations of what responsibilities are “inherent in [an] office” to suffice.
Others, however, require that the source of law be enacted pursuant to formal procedures or have some other indicia of seriousness that put officials on notice that violation would carry criminal penalties.
Moreover, in one state, statutory law is the only acceptable predicate.
And going even further, another state requires that the law come from a criminal statute, meaning official misconduct effectively functions as a sentencing enhancement in that jurisdiction.
The second subelement, knowledge, does a lot of work separating criminally culpable conduct from simple negligence (and figures heavily in courts’ rejection of vagueness challenges to official misconduct statutes
). It’s not enough that conduct was unlawful; the defendant must have known it was. Knowledge is proven in the mine run of cases through circumstantial evidence: Did the individual participate in department trainings, sign paperwork acknowledging their duties and responsibilities, or violate a well-established and well-publicized regulation?
And in some instances—in a move once again similar to federal civil rights prosecutions—the egregiousness of the conduct itself will provide strong evidence the official must have known their actions were unlawful.
B. Sentencing Consequences
In most states, official misconduct is a misdemeanor, meaning there’s a serious decrease in sentencing exposure from the federal felonies that Part I discusses.
The maximum authorized punishment is a year. And in many instances, unless charged alongside other offenses, an official misconduct conviction will lead to little or no jail time, resulting instead in probation- and fine-based sentences.
Additionally, forfeiture of office is either required upon conviction or in the court’s discretion in many jurisdictions, ensuring that those who have shown themselves unfit for a government office don’t have another opportunity to misuse it.
III. Evaluating State Official Misconduct Statutes
Now that the basic contours of official misconduct statutes have been laid out, this Part turns to the normative implications of the statutes. Section III.A discusses the enforcement benefits of the statutes, while section III.B considers two concerns.
A. Enforcement Utility
1. Supplementing Federal Criminal Law. — One of the upsides of official misconduct statutes is that they allow states (if they are so inclined) to supplement federal criminal law in the area of government misconduct. Federal criminal law in this area reaches two main buckets of conduct: (1) quid pro quo corruption or other schemes “directed at” naked pecuniary gain, and (2) intentional civil rights deprivations.
What form government misconduct enforcement takes beyond these categories is—as Kelly emphasized—largely a matter left to the states to decide.
And there are reasons why states could look at these categories of federal criminal law and conclude that they are underinclusive.
Taking the first category of federal law, there are schemes that don’t fit its bribery-or-embezzlement rubric but are nonetheless culpable attempts to use an office for financial gain. One example is an official with a conflict of interest refusing to step back from a government decision, knowing that state or local law requires recusal.
This was once potentially within the province of federal criminal law, but after Skilling v. United States and other decisions striking a similar tenor, it is now exclusively a matter for the states themselves to enforce.
Moreover, a state might reasonably conclude that financial gain is not the only motivation warranting sanction—that officials who abuse their office for political gain
or simply out of personal loyalties
are deserving of sanction as well.
Turning to the second category of federal law, rights-based enforcement mechanisms provide important floors, but subconstitutional rules are often needed to ensure good governance.
This is particularly true where the enforcement mechanism is the strong medicine of a federal felony. The DOJ has been cautious bringing federal civil rights prosecutions, and courts have rightfully imposed robust notice requirements.
Official misconduct statutes allow states to prohibit and deter rights-implicating but not necessarily rights-depriving conduct. For example, the ultimate reach of Brady v. Maryland to police officers (instead of prosecutors) is uncertain.
But departmental policy on disclosure is often clear: There is, for example, no question whatsoever that an NYPD officer who intentionally withholds exculpatory evidence acts unlawfully.
Or, while it’s a heavy burden to show a particular use of force violated the Fourth Amendment in a way every reasonable officer would recognize,
showing an individual knowingly attempted to evade scrutiny by omitting use-of-force paperwork is not.
2. Difficulty of Ex Ante Delineation. — Another potential benefit of state official misconduct statutes is that they relieve state legislatures of the difficult, if not impossible, task of specifying every instance of conduct by government employees at every state and local government entity that is worthy of criminal sanction.
The state legislature sets forth the general policy that public officials’ knowing violation of certain provisions for personal benefit is a misdemeanor, and entities closer to the ground and with subject-matter expertise fill in the details of which provisions count.
3. Noncriminal Enforcement. — Additionally, even where prosecutors decline to charge an individual, official misconduct statutes can still advance criminal law’s goal of specific deterrence. At the risk of oversimplifying, there are in many jurisdictions certain employees—due to tenure protections or grievance procedures that are the product of statute or collective bargaining agreement—who can be disciplined or removed only for certain enumerated categories of conduct. Often, one category is the commission of a criminal offense.
So, even where official misconduct is not charged, it can provide the predicate for a government employer to suspend or remove officials who have shown themselves undeserving of a public trust.
Moreover, in a handful of jurisdictions, private-citizen enforcement may be an option. After Bridgegate, a handful of car services negatively affected by the hours-long traffic jam brought suit against the Kelly defendants under New Jersey’s state RICO statute, listing official misconduct as one of several predicate offenses.
But litigants will often find themselves—as the Bridgegate private litigants did
—stumbling over either standing requirements or the substantive requirements of establishing a RICO claim.
B. Vagueness and Delegation Concerns
1. Vagueness. — State official misconduct statutes are, of course, not without their drawbacks. Some might object (and many defendants do) that the first two qualities framed as pluses in the previous section are, in fact, downsides—and major ones at that. It’s certainly reasonable to worry that, given the flexibility of state official misconduct statutes, they might not provide regulated parties with enough notice of what they prohibit and might lend themselves to arbitrary application by prosecutors. Doctrinally this concern sounds in vagueness. Rooted in due process, the void for vagueness doctrine requires that a criminal prohibition be clear to a “person of common intelligence.”
a. Minority View. — A small number of courts have invalidated their states’ official misconduct statutes under their state constitution, the federal constitution, or both.
Looking at the Kansas official misconduct statute on its face and without regard to any imported statutes or regulations, the Kansas Supreme Court concluded that the statute failed the notice prong of the void for vagueness inquiry:
Due to the great divergence of opinion held in our society as to what is acceptable or proper behavior, misconduct is in the eye of the beholder. For that reason, “misconduct” as a standard of conduct is “so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.”
Taking the opposite path, the Florida Supreme Court viewed the incorporation of other statutes and regulations to be the root of the Florida statute’s vagueness.
The court was concerned both that the violation of an agency rule “no matter how minor or trivial” could result in criminal liability and that the statute’s “catch-all nature” would lead to “misuse [of] the judicial process for political purposes.”
Rejecting the state’s arguments that a “corrupt intent” requirement saved the statute and that prosecutorial discretion is inherent under any criminal prohibition, the Florida Supreme Court held that the official misconduct statute was “simply too open-ended” to satisfy the arbitrary-application prong of the void for vagueness doctrine.
Moreover, even though Kelly cited New Jersey’s official misconduct statute with seeming approval, couldn’t you read Kelly—and the Supreme Court cases that preceded it—to support the minority view that official misconduct statutes raise vagueness concerns? After all, Kelly read § 666’s misapplication prong out of the U.S. Code,
and that prong of the program-theft statute looks functionally similar to state official misconduct statutes.
And more generally, the Court’s official corruption precedent seems driven by a real unease with too sweeping of official criminal liability and a concern with punishing officials for wielding power for the “wrong” reasons.
True, the Supreme Court has developed these concerns only in statutory interpretation decisions, but the decisions are the product of a muscular constitutional avoidance. Shouldn’t the Court’s constitutionally motivated concerns inform state practice?
b. Majority View. — The vast majority of courts to consider the issue, however, have upheld official misconduct statutes against either as-applied or facial vagueness challenges.
Their analyses have tended to focus on the double mens rea requirement the statutes impose: Defendants must act (1) intending to receive a benefit and (2) knowing their conduct violates the law. In their view, that double requirement helps to shield good faith mistakes and simple negligence from criminal liability.
Additionally, the impact of the Supreme Court’s official corruption cases on state court decisions has been limited.
This makes sense, given that the Court’s official corruption cases seem to be motivated in large part by federalism concerns that aren’t present when a state is the prosecuting authority.
The driving force of many of the Court’s official corruption decisions can be tough to parse, but this federalism-forward reading finds support when you compare a case like Kelly to the Supreme Court’s flat rejection of challenges to criminal statutes that protect purely federal interests (e.g., conspiracy to defraud the United States or making a material false statement to a federal officer).
2. Administrative Crimes. — Relatedly, some might object to the authority delegated to state and local administrative agencies by official misconduct statutes. Indeed, in nonmajority opinions, five members of the Supreme Court have expressed a desire to revisit the federal nondelegation doctrine and give it more teeth.
And following Gundy v. United States,
there’s been renewed academic attention to the topic of criminal delegations at the federal level.
Of course, structural principles applicable to the federal government aren’t incorporated against the states. Moreover, state separation of powers arrangements and administrative systems are incredibly diverse,
and important differences between state/local and federal administrative lawmaking should caution against reflexively importing a concept from one system into the other.
As a result, any doctrinal movement at the federal level will not necessarily impact state practice.
That said, the reasoning behind the academic critique of administrative crimes (and their defenses) is not strictly limited to the federal level. Not without counterarguments, the critique argues that administrative crimes suffer from a democratic legitimacy gap that is incompatible with expressive and liberal theories of punishment;
that the relative ease of administrative lawmaking impairs liberty interests; and that there is a mismatch between the conventional, pragmatic justifications for delegation and the unique task of criminal lawmaking.
And some state courts—though not yet in the official misconduct context—have looked to nonmajority, delegation-skeptic Supreme Court opinions as persuasive authority, incorporating the principles laid out in those opinions into their state constitutional and administrative law.
When it comes to official misconduct statutes specifically, so far only the Florida Supreme Court has expressed serious concern under this rubric—incorporating nondelegation concerns into its void for vagueness analysis when it struck down Florida’s official misconduct statute in the 1970s.
But other states have addressed concerns with official misconduct statutes at the margins by adopting approaches that constrain the scope of acceptable delegations without invalidating the statutes wholesale.
IV. Building Institutional Safeguards for Official Misconduct Statutes
When considering the constitutionality of official misconduct statutes, this Comment comes down on the side of the majority of state courts: The statutes don’t violate any requirements imposed by the Fourteenth Amendment’s Due Process Clause. As sketched above, the void for vagueness doctrine has a know-it-when-you-see-it flavor, but a recurring consideration is how robust a statute’s mens rea element is.
In the official misconduct context, the answer is quite so. As noted, defendants must have both known their conduct was unlawful and acted with the intent to benefit themselves—not the public. These requirements decrease the risk that innocent, or even distasteful but not criminal, conduct is swept into the statutes’ reach.
State courts are, of course, fully within their authority to develop parallel state due process or structural provisions in a more robust manner,
and particular defendants may have as-applied challenges available under other state and federal constitutional provisions.
This Comment is necessarily a multistate survey and doesn’t attempt to argue what results are appropriate under a given state’s constitutional tradition.
Moreover, this Comment’s conclusion that official misconduct statutes are constitutional is not meant to suggest that the concerns Part III sketches drop out of the picture entirely. The statutes do vest a significant amount of discretion, especially when combined with conspiracy and accomplice liability. And it’s not difficult to envision situations where personal animus or other wholly arbitrary considerations seep into prosecutorial decisionmaking under these open-textured provisions.
Nor is it out of the question that a particular government official finds himself or herself to have committed a criminal offense without serious notice.
These concerns are real.
Nor does the conclusion that the statutes are constitutional mean there’s no role for courts to play when it comes to official misconduct statutes; there are a number of more limited interventions that courts should take to ensure official misconduct statutes are applied in an appropriate manner and that defendants receive adequate notice. First, courts should be receptive to as-applied void for vagueness challenges concerning the specific statute or regulation an official misconduct prosecution is predicated on.
Second, courts should similarly apply the rule of lenity and other state-specific rules of strict construction to predicate laws.
Third, courts should carefully police the procedural validity of predicate regulations; if a regulation does not meet the requirements that a state or local government has set for it to become law, it cannot be the basis for an official misconduct prosecution.
Fourth, courts can consider adopting heightened pleading requirements for official misconduct indictments, so that defendants are adequately appraised of the specific laws they allegedly violated and have the ability to build a defense accordingly.
Fifth, and finally, courts can consider—either as a matter of construction
or pursuant to a clear textual command
—precluding prosecutions based on regulations that are far too minor or haphazardly promulgated to carry the risk of incarceration.
But it’s important not to think of courts as the sole institution capable of effectuating constitutional values in this context.
Where and how the responsibility for prosecuting official misconduct is placed within a state’s executive branch can go a long way toward ensuring prosecutorial regularity. This Comment argues that states should increase the role state attorneys general play in official misconduct enforcement decisions specifically and the prosecution of government misconduct more generally.
A. Concerns With Local Enforcement
A heavy dose of localism is—in most instances—desirable, and going back as far as Alexis de Tocqueville, it’s been a prominent part of our country’s political life.
But there are situations where the incentives of local actors are fundamentally misaligned.
The detection and prosecution of government misconduct is one such instance. As Professor Norman Abrams has put it, there’s a “distance imperative” when it comes to rooting out government misconduct.
Yet enforcing state criminal law remains primarily a local endeavor
(though this picture has begun to change with state-level authorities taking on slightly more active roles in some jurisdictions
). Local enforcement compounds the prosecutorial discretion concerns Part III discusses and creates problems that run in two different directions.
The first concern is under-enforcement. Local prosecutors rely on the police to investigate, build, and refer cases.
And local prosecutors, working under elected district attorneys in most jurisdictions, aren’t above the fray of local politics.
Therefore, they may be reluctant to charge police officers or local political actors out of fear of disrupting the relationships they rely on.
The second, and opposite, concern is over– or mis-enforcement. Official misconduct statutes could be used against a political opponent; out of animus; or again as the product of agent–principal dynamics (e.g., a prosecutor bringing a charge solely at the behest of another agency). Given the open-textured quality of official misconduct statutes—when compared to, for example, bribery statutes that reach only quid pro quo corruption—this latter concern with pretextual charging is particularly pronounced.
B. Three Models of State Involvement
States, however, can mitigate these problems and increase enforcement “distance” by incorporating state attorneys general into official misconduct charging decisions.
What form this should (or can) take will depend on a variety of factors, including: the statutory and common law jurisdiction of a given state attorney general;
state legislative appropriations and the availability of federal funding;
and the ability of an attorney general to place affirmative obligations or constraints on local prosecutors. Moreover, the reforms proposed here may require legislation in some states but be available through executive action in others. With these caveats in mind, three models of state involvement—and their relative benefits—can still be discussed.
First, a state could create a unit within the office of the attorney general that is vested with either exclusive or concurrent jurisdiction over official misconduct statutes. Of states with an official misconduct statute on the books, Kentucky,
follow this model to some extent.
This model introduces the largest amount of “distance,” but it likely does so at the largest cost to the state and the largest shift in state–local relations.
Second, a state could draw on federal civil rights prosecutions and leave government corruption enforcement largely decentralized but require approval by the office of the attorney general before a local prosecutor can file an indictment.
For instance, a county prosecutor could be required to persuade the attorney general that internal disciplinary mechanisms are insufficient to vindicate the state’s interest in government integrity or that the prosecution is otherwise in the public interest.
This proposal requires less state investment and is likely less politically disruptive, but it addresses only one of the two problems identified above, over-enforcement, and does nothing to solve the problem of under-enforcment. No state with an official corruption statute currently has a system on the books like this. And the closest arrangement is probably that of Louisiana, where the office of the attorney general reviews certain criminal prosecutions and reserves the right to intervene and displace local authority.
Third, and finally, states could place requirements on county prosecutors to report statistics on the number of prosecuted official misconduct cases and the number of declined referrals.
Each case is unique and requires individualized decisionmaking, but persistent trends can still be identified over time (though caution is needed).
Context can also be added by requiring local prosecutors to file internal declination statements.
This model exerts the least amount of state control over local prosecutors’ decisionmaking but would still allow states to identify enforcement problems and use more informal methods to address them.
C. Counterarguments to State Enforcement
It’s certainly true that “distance” concerns also arise at the state level if, for example, a state legislator or (as in Texas) the attorney general becomes the subject of an investigation.
Indeed, state attorneys general are increasingly political and partisan actors;
there’s a risk they might play too heavy of a hand in directing anticorruption enforcement toward partisan ends if authority is centralized. Moreover, attorneys general may too feel indebted to certain municipal employee organizations in a manner similar to local prosecutors.
Two quick responses: First, this concern is significant and likely calls for some degree of insulation. If, for instance, a state adopts the second model, ultimate certification authority could rest in a high-level career deputy instead of running all the way up the ladder to political appointees.
Second, none of the proposals here pretend whatsoever to be magic bullets. Institutional design is ultimately a risk-balancing exercise; if local abuse is a larger problem in terms of relative size, then centralization may be desirable even if it brings a risk of hold-up problems in a different context.
The Court’s message in Kelly was clear: Beyond combatting corruption aimed at naked pecuniary gain, federal prosecutors won’t have too large of a role to play in ensuring good government at the state and local level. As the federal government’s involvement in this area decreases, the onus shifts more and more to the states to pick up the slack. As this Comment suggests, states have a dynamic tool on the books in the form of official misconduct statutes. But it’s a tool that’s not without its drawbacks. So, just as important as substantive law will be whether states have the necessary institutional structure and willpower to responsibly enforce their own prohibitions on government misconduct.
For a table of state official misconduct statutes, please see the Appendix in the PDF version of this article.