What to Know: Prosecutorial Misconduct and the Death Penalty Disproportionately Harms Black People

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DPI’s ​“What to Know” series exam­ines cap­i­tal pun­ish­ment from mul­ti­ple angles, one top­ic at a time. Each install­ment pro­vides essen­tial facts and data on spe­cif­ic aspects of the death penalty.

Why it mat­ters: More than 600 cap­i­tal con­vic­tions or death sen­tences have been over­turned or led to exon­er­a­tions because of pros­e­cu­to­r­i­al mis­con­duct, and researchers say the true scope of the prob­lem is like­ly far greater.

  • DPI has iden­ti­fied more than 600 instances in which a cap­i­tal con­vic­tion or death sen­tence has been over­turned or a death-sen­tenced pris­on­er was wrong­ful­ly con­vict­ed as a result of prosecutorial misconduct.

  • More than 6.3% of all death sen­tences imposed since 1972 were reversed because of pros­e­cu­to­r­i­al mis­con­duct or result­ed in an exoneration.

  • Of the 202 total death row exon­er­a­tions, at least 144, or rough­ly 70%, involved pros­e­cu­to­r­i­al mis­con­duct specif­i­cal­ly (a sub­set of the broad­er ​“offi­cial mis­con­duct” cat­e­go­ry, which also includes police and oth­er government misconduct).

  • The most com­mon types of mis­con­duct were with­hold­ing favor­able evi­dence, impli­cat­ed in 35% of reversed con­vic­tions or sen­tences, and improp­er argu­ment, present in 33% of reversed sentences.

  • A report by Harvard Law School’s Fair Punishment Project found that just five pros­e­cu­tors with high rates of mis­con­duct are respon­si­ble for more than 440 death sentences.

Key Facts

  • Prosecutorial mis­con­duct is rarely pun­ished. Many instances of mis­con­duct go unad­dressed, and most pros­e­cu­tors who com­mit mis­con­duct are not held accountable.

  • Courts fre­quent­ly deny relief even when mis­con­duct is proven, dis­miss­ing it as ​“harm­less error.” DPI’s doc­u­ment­ed mis­con­duct dataset reflects only cas­es where courts con­clud­ed that vio­la­tions were seri­ous enough to warrant reversal.

  • Evidence sup­pres­sion is the most com­mon form of mis­con­duct. Under the 1963 U.S. Supreme Court rul­ing in Brady v. Maryland, pros­e­cu­tors have a con­sti­tu­tion­al duty to turn over all evi­dence favor­able to the defense. DPI’s Prosecutorial Accountability project lists more than 200 cap­i­tal con­vic­tions or death sen­tences that have been reversed based on pros­e­cu­tors’ fail­ure to dis­close excul­pa­to­ry evi­dence. A study in the Journal of Criminal Law and Criminology found that courts found Brady vio­la­tions in 10% of cas­es reviewed, and pros­e­cu­tors ​“were almost nev­er referred to the Bar for discipline.”

  • Racial dis­par­i­ties com­pound the prob­lem. Prosecutorial mis­con­duct can include the ille­gal exclu­sion of peo­ple of col­or from juries, in vio­la­tion of Batson v. Kentucky. All-white and near­ly all-white juries have been found to be more con­vic­tion-prone and more like­ly to impose death sen­tences. A 2020 report by the National Registry of Exonerations found that police or pros­e­cu­to­r­i­al mis­con­duct occurs more fre­quent­ly when the defen­dant is a Black person.

  • Misconduct pro­longs wrong­ful impris­on­ment. Exonerations take longer in cas­es involv­ing offi­cial mis­con­duct because of ongo­ing efforts by gov­ern­ment offi­cials to hide mis­con­duct and false tes­ti­mo­ny or accu­sa­tions. Prosecutorial offices also tend to more aggres­sive­ly defend cas­es and legal claims in which offi­cial mis­con­duct is charged. Official mis­con­duct was present in all eight of the cas­es in which an exon­er­a­tion occurred 31or more years after conviction.

  • The prob­lem isn’t lim­it­ed to cap­i­tal cas­es. Official mis­con­duct was the lead­ing cause of wrong­ful con­vic­tions in 2024, present in at least 104 exon­er­a­tions, or rough­ly 71% of all exon­er­a­tions dur­ing the year. Misconduct con­tributed to wrong­ful con­vic­tions in about 79% of homicide exonerations. [MORE]