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New York court strikes down prosecutorial conduct commission
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New York court strikes down prosecutorial conduct commission

A New York judge on Tuesday struck down a 2019 law that would have created an independent commission to investigate prosecutorial misconduct in the state. The bill, signed by Governor Andrew Cuomo last March, created the second version of the commission after the first version was challenged due to separation of powers concerns. The new commission, rather than being appointed by the legislature alone, would include members chosen by the executive and judiciary.

An association of district attorneys sued to prevent the implementation of the commission. They argued that the commission would interfere with the rights and core functions of their offices and give unconstitutional authority to the judiciary. As constituted, the commission would be able to review prosecutors’ activities, publicly censure them, and make recommendations to the governor should actions warrant a prosecutor’s removal. Supporters of the commission contend that the state needs a new way to hold prosecutors accountable given documented abuses.

The judge was unconvinced by many of the arguments by the district attorneys association, such as that the commission would interfere with their prosecutorial discretion: “It was clearly permissible for the Legislature to create a special investigatory body for prosecutors, but not for other attorneys,” the judge said. “Oversight does not on its face dictate who, when or how the DA may pursue a prosecution, but may be read only as ensuring that any prosecution that is undertaken is conducted free from misconduct—safeguards that are within the purview of the Legislature to create.”

But they prevailed in their challenge that the commission unconstitutionally altered the separation of powers by changing who has power over attorney discipline. “The role given by the statute to the presiding justices of the Appellate Division is not permitted under New York’s constitutional framework,” the judge wrote. This flaw was sufficient to prevent the implementation of the commission.