On Monday, the House of Representatives passed the Due Process Protections Act (S. 1380) by unanimous consent after having received it from the Senate, which unanimously passed the bill in May. The legislation is now headed to the White House where it is expected to receive President Trump’s signature.

The bill reinforces an existing constitutional obligation of prosecutors to disclose so‐​called Brady material – material that is favorable to the defense – and facilitates the disciplining of federal prosecutors who fail to uphold their obligation to do so.

Those who regularly follow this blog or have a fair understanding of how broken America’s criminal justice system truly is won’t find it surprising that such a legislative fix is needed. Despite the Supreme Court’s recognition of the so‐​called Brady obligation in 1963, prosecutors neglect to meet their ethical and constitutional obligation to disclose materially favorable evidence to the defense far too often. A recent study by the National Registry of Exonerations reports that, among state and federal false convictions that eventually resulted in exonerations, illegally concealing exculpatory evidence occurred in at least 44% of all exonerations in the Registry. According to the authors, it is “the most common type of official misconduct that we report.”

The tragic event that focused Congress’s attention on this issue was the 2008 prosecution of the late Senator Ted Stevens (R-AK) in which federal prosecutors destroyed the career and reputation of a longtime sitting senator by systematically cheating their way through his trial, including deliberately withholding evidence of the senator’s innocence. Though the egregious actions of the prosecutors was thoroughly documented, the presiding judge ultimately concluded that he could not pursue contempt charges under the relevant statute because he had not issued a “clear and unequivocal” order to the prosecutors requiring them to honor their ethical and constitutional obligations by producing Brady material to the defense team.

It would be wrong to assume that Senator Stevens’ experience was a once‐​in‐​a‐​lifetime occurrence of gross misconduct within the Department of Justice. Just days ago, federal prosecutors in the Southern District of New York aroused the fury of District Court Judge Alison Nathan for hiding Brady material during the trial of an Iranian businessman whom the government accused of enriching his family by violating U.S. sanctions laws. After the misconduct was revealed, Judge Nathan criticized the prosecutors’ supervisors for failing to appropriately discipline their subordinates: “The manifold problems that have arisen throughout this prosecution – and that may well have gone undetected in countless others – cry out for a coordinated, systemic response…”. [emphasis added]

Unfortunately, there is little doubt that similar misconduct has gone undetected in countless other prosecutions. Given the flagrant abuses of power exhibited in the two cases discussed above that involved high‐​profile and well‐​resourced defendants, it seems inevitable that similar abuses have been, and continue to be, perpetrated against ordinary citizens in lower‐​profile cases.

The Due Process Protections Act, authored by Senators Dan Sullivan (R-AK) and Dick Durbin (D-IL), is an attempt to ensure that federal prosecutors are no longer so easily let off the hook the way they were following the botched Stevens prosecution. Under the provisions of the bill, all federal prosecutors will be ordered by the presiding judge to comply with their Brady obligations and will also be made aware of the consequences for failing to do so.

But while the Due Process Protections Act is significant and necessary, it only applies to federal criminal cases that go to trial. This is highly problematic because only 2% of federal criminal convictions are obtained through trials while the rest – nearly 98% – are obtained through the much more expedient and often coercive process of plea negotiations.

One of the many reasons that plea negotiations are coercive in nature is the fact that there is currently no federally‐​recognized obligation – constitutional or otherwise – of prosecutors to provide exculpatory evidence to the defendant during plea negotiations. Defendants are therefore routinely pressured to plead guilty in their case without knowing what evidence the prosecution has that might prove their innocence (or at least weaken the prosecution’s case against them).

Why should a prosecutor’s possession of evidence suggesting the defendant’s innocence be available to the defense only in the highly unlikely event that he or she takes her case to trial? If the principle is good at trial – an adversarial process that’s meant to protect the innocent from wrongful conviction – it should also apply during plea negotiations. Cato’s vice president for criminal justice, Clark Neily, has been making just this case.

Unfortunately, the Supreme Court has not yet embraced the proposition that the obligation to disclose favorable evidence should extend to plea‐​bargaining, and the Department of Justice has vigorously resisted such efforts in the past. That fact, however, does not prevent Congress from establishing a statutory right to pretrial Brady disclosures. Having now put teeth in prosecutors’ obligation to disclose favorable evidence to the defense at trial, Congress should take the next logical step and require them to do so during plea negotiations, which is the mechanism by which nearly all criminal convictions are obtained in America today.