In August, New York Governor Andrew Cuomo signed into law a bill setting up a commission to handle complaints about prosecutorial misconduct in the state—the first of its kind.New York SB S2412D (2017-2018). The law gave the 11-member commission—made up of appointees from all three branches of government—broad power to conduct hearings and issue subpoenas.Jesse McKinley, “A New Panel Can Investigate Prosecutors. They Plan to Sue to Block It.,” New York Times, August 23, 2018.
Too broad, according to the District Attorney’s Association of the State of New York, which sued to block it, arguing that the commission is an unconstitutional expansion of judicial power that violates the separation of powers doctrine.Jillian Jorgensen, “Settlement Squashes NY State Panel Probing Prosecutorial Misconduct,” New York Daily News, December 10, 2018. The commission, which would have been established January 1, 2019, was intended to “address allegations of misconduct . . . including malicious prosecutions and wrongful convictions, frequently impacting people of color and marginalized communities.”Office of Governor Andrew Cuomo, “Governor Cuomo Signs Legislation to Establish Nation’s First Commission on Prosecutorial Conduct,” press release (Albany, NY: Office of Governor Andrew Cuomo, August 20, 2018). Introduced by Republican John A. DeFrancisco, the bill received support from the Legal Aid Society.Jesse McKinley, “A New Panel Can Investigate Prosecutors. They Plan to Sue to Block It.,” New York Times, August 23, 2018. But New Yorkers will have to wait: a settlement between the state and district attorneys has effectively put the law—and the lawsuit—on hold until the legislation can be amended to address constitutional concerns, as Governor Cuomo had suggested might be necessary when he signed the bill.Jorgensen, “Settlement Squashes Panel,” 2018; and McKinley, “A New Panel Can Investigate Prosecutors,” 2018.