Prosecutorial Disclosure Violations: Punishment vs. Treatment

Recent scholarship on prosecutorial disclosure violations proposes preventing violations through understanding and remedying the causes of violations, such as cognitive error. Scholars who adopt this view-what I call here the "treatment perspective"-often call for greater transparency and cooperation from prosecutors. A frequently unacknowledged tension exists between such a treatment perspective and a more traditional perspective-what I call here the "punishment perspective"-that seeks to deter disclosure violations through greater use of sanctions such as professional discipline. The tension arises because increasing the certainty and severity of sanctions, as the punishment perspective urges, creates a powerful disincentive for individual prosecutors and prosecutor offices to be transparent and cooperative, as the treatment perspective requires.

In brief, using information about disclosure violations to punish prosecutors is likely to discourage them from creating and sharing information necessary to understand and remedy such violations. In this Article, I argue those concerned about prosecutorial disclosure violations need to confront and address this tension.