Prosecutorial Misconduct: Mass Gang Indictments and Inflammatory Statements

This Article examines inflammatory statements by prosecutors in the context of mass gang indictments. I contend that inflammatory remarks not only harm the justice system and defendants, particularly minorities, but also that, when prosecutors craft and repeat hyperbolic narratives about vicious gang wars, prosecutors may come to believe the narratives and become effectively blinded to the fact that these narratives are improper, unfair, and untrue. First, I review the professional rules, standards, and case law that prohibit. Then, drawing on press releases and trial transcripts from two mass gang indictments in New York City, I demonstrate how prosecution statements exaggerate and misrepresent the violence attributed to the targets of gang sweeps.

This Article then discusses several societal harms that inflammatory narratives may exacerbate. Inflammatory narratives which improperly attribute carnage and enormous amounts of violence to large groups of young men of color play into three pressing problems of society—racism, wrongful convictions, and mass incarceration. Concluding, I call on all prosecutors, and particularly those who would make claims to a progressive agenda, to eschew inflammatory narratives and the over-prosecution of youth of color based on theories of vicarious liability.