This topic is monitored by Moritz Law Professor Ric Simmons
Election of Local Prosecutors
According to the most recent Department of Justice survey, there are 2,341 local prosecutors' offices in this country, 1 and together they handle over 2.3 million felony cases each year. 2 This represents approximately 95 percent of all criminal prosecutions in the country. 3 The policies and practices of each of these offices vary from state to state and even county to county, but nearly all of them share one common trait: the job of chief prosecutor, or district attorney, is almost always an elected position. 4 Thus, unlike their appointed federal counterparts, the local district attorneys who prosecute the vast majority of criminal cases in this country must respond to the populist demands of politics.
Local prosecutors are elected on a county-wide or regional basis, 5 usually serving a four-year term. 6 The rules for electing a prosecutor are generally no different from those for electing any other county-wide officer, such as county commissioner or sheriff. 7 The ethical and legal issues involved, however, are somewhat trickier for prosecutors. For many county-wide offices (coroner, sheriff, treasurer), voters will presumably care mostly about qualifications and ability. 8 Others, such as county commissioner, are overtly political, involving many potential issues — schools, zoning and growth policy, taxes — which could influence a voter's decision. The job of chief prosecutor, however, falls somewhere in the middle, raising some interesting — and unresolved — questions about the nature of prosecutorial elections. Should voters simply choose the most qualified individual for the job, or should they explicitly consider policy issues on law enforcement matters for their community? Which aspects of prosecutorial decision-making should be reviewed by the voters? In responding to voters' demands, prosecutors walk a fine line between carrying out the will of the electorate and improperly subsuming their own professional and educated judgment in their exercise of prosecutorial discretion.
Only a few decades ago, this tension did not exist as a practical matter. Up until the 1950s, there was a prevailing social consensus on criminal justice matters, and as a result, the prosecutor was for the most part viewed as merely another county technocrat, and voters would make their decision primarily on the basis of qualifications and experience. 9 Crime control and criminal justice policy were the purview of elites and experts, usually lifelong professionals in the field.
But the skyrocketing crime rates of the 1960s, along with a handful of other societal changes, combined to politicize the criminal justice system. 10 Criminal justice policy, once a non-entity in political debates, became a perennial campaign issue, with candidates on the local, state, and national level promising to be "tough on crime." Sentence lengths, police practices, and even the details of the substantive criminal code itself were submitted to the electorate for approval. Criminal justice policy — for better or worse — was frequently dictated by a majority vote.
The democratization of criminal justice policy has had a profound effect on elections for local prosecutors, and consequently on the conduct of prosecutors in office. Numerous scholars have commented on this effect, usually casting it in a negative light. The political pressures on prosecutors has been said to lead to a subtle shift away from the prosecutor's goal of "doing justice" and an increased focus on conviction rates. 11 For example, the refusal of some prosecutors to consent to DNA testing after a conviction is attributed at least in part to the political difficulty of admitting a mistake to the electorate. 12
Similarly, the need to campaign for office raises important questions about campaign tactics. Prosecutors frequently campaign on their conviction rate 13 — or in some jurisdictions, on the number of people they have sent to death. 14 Prosecutorial ethics state that decisions such as whether to dismiss a case or whether to seek the death penalty should be based solely on the evidence and free from political calculations. 15 Of course, simply because a local prosecutor uses conviction statistics during the course of his or her campaign doesn't mean that the original decision was based on a political calculation — but the temptation surely exists to take political considerations into account when making supposedly apolitical decisions on individual cases.
Other critiques of prosecutorial elections are more familiar: as with many local elections, voter interest (and thus turnout) tends to be low, and frequently voters have little reliable information upon which to make a decision. 16 Furthermore, in many counties, prosecutors run unopposed for numerous consecutive terms, 17 depriving the electorate of any real voice in the process.
Notwithstanding these critiques of the system, there is also a strong justification for conducting elections for local prosecutor. Simply put, although a prosecutor's decision in each individual case (e.g. whether to press charges, or whether to seek the death penalty) should be apolitical, in a broader sense prosecutors are public officials who make quintessentially political decisions. They decide whether to allocate scarce resources to prosecuting drug crimes or investigating organized crime. They decide how much (if at all) to crack down on "quality of life" crimes. They decide whether to create a specialized domestic violence unit and what kind of penalties to ask for when batterers are convicted. These are decisions for which a prosecutor should arguably seek input from the community, and a prosecutor will be far more likely to seek this input — and will seek it more aggressively — if he or she is dependent upon the community for his or her election. 18 The two most dramatic policy changes at prosecutors' offices over the past 20 years — the emphasis on domestic violence cases and the rise of community prosecution 19 — occurred at least in part in response to demands from the electorate. We are perhaps in the midst of a third dramatic policy change — a lowering of drug sentences and an increased consideration of alternative sentences such as treatment and probation in narcotics cases. This shift is in part a response to budgetary restraints, but it is also in part a response to an electorate that is increasingly uncomfortable with the traditional "war on drugs" approach to such crimes.
Furthermore, a locally elected prosecutor will be more responsive to the needs and desires of his or her specific community. The former district attorney of San Francisco won two terms in office after campaigning on a platform of leniency and alternative sentences for drug crimes and prostitution. 20 Meanwhile the district attorney of Harris County in Texas is responsible for 10 percent of all the executions in the country. 21
Requiring local prosecutors to respond to the electorate results in a diverse application of criminal law, with each jurisdiction reflecting the political views of the electorate. This process inevitably creates significant inconsistencies in criminal justice policy across jurisdictions, such that the same crime will receive a significantly different punishment (or might not be prosecuted at all) depending on the county in which it is committed. Whether these inconsistencies are appropriate is a matter of debate; decentralization might be desirable for tax policy and zoning laws, but for some it becomes a little more troubling in the realm of criminal justice. 22 What is beyond dispute is that by electing their local prosecutors, voters are having a significant (and growing) influence on the criminal justice policy of their community.
[Posted August 9]
1. Bureau of Justice Statistics Bulletin, Prosecutors in State Courts, 2001, U.S. Department of Justice, July 1, 2002 at 1 [hereinafter "Prosecutors in State Courts"].
2. This is the total number of cases closed by local prosecutors in 2001; the case may have been closed without an indictment, or it may have proceeded all the way to a jury verdict. Id. at 6. Local prosecutors also handle over seven million misdemeanor cases each year. Id.T
3. The most recent numbers from the Department of Justice estimate 121,000 federal prosecutions per year. Bureau of Justice Statistics, Federal Justice Statistics, U.S. Department of Justice, November 23, 2003, at 1. An exact percentage is difficult to calculate as every local prosecutor's office is free to use a different definition of "case." Prosecutors in State Courts at 6.
4. Only three out of the 50 states do not elect their local prosecutors (Alaska, Connecticut, New Jersey, and the District of Columbia.) Id. at 2.
5. Over half of the states elect prosecutors by county; a substantial minority does so by judicial district. Id. at 12.
6. 87% of local prosecutors are elected or appointed to a four-year term. Id. at 3.
7. Of course, unlike most other candidates for local elections a candidate for prosecutor is required to be licensed to practice law within the state See, e.g., Ohio Rev. Code 3.15, 309.02.
8. Although as criminal justice policy becomes more and more politicized, sheriffs will also be forced to justify their policy decisions to the electorate.
9. Occasionally integrity would be a key issue as well: like many local offices — and perhaps more often than most others — local prosecutors sometimes became corrupt and voters would choose a reformist candidate to clean up the office.
10. See generally David Garland, The Culture of Control 103-109 (2001).
11. See, e.g., Abbe Smith, Can You be a Good Person and a Good Prosecutor? 14 GEO. J. LEGAL ETHICS 355, 389 (2001).
12. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U.L. REV. 125, 156-69 (2004).
13. See Kenneth Bresler, "I Never Lost a Trial": When Prosecutors Keep Score of Criminal Convictions, 9 Geo J. Legal Ethics 537, 541 n.18 (1996).
14. Mike Tolson and Steve Brewer, "Harris County is a Pipeline to Death Row," Houston Chronicle, Feb. 21, 2001 at 1 (incoming District Attorney of Harris County (Texas) campaigned on his record of having put 14 murderers on death row "where they belong.")
15. See Standards Relating to the Administration of Criminal Justice, Standard 3-3.9(a) (1992) (charges must be based solely on the existence and quality of evidence supporting guilt).
16. See Medwed, supra note 12 at 153.
17. See Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability? 83 VA. L. REV. 959, 963-64 (1997). 20% of all local prosecutors have served 15 years or more — the equivalent of four consecutive terms in office. Prosecutors in State Court at 3.
18. Many scholars agree with this ideal, but argue that in truth most prosecutorial elections turn not on serious political questions but rather the outcome of one or two highly publicized cases, or conviction rates. See, e.g., Richman, supra note 17 at 963.
19. "Community prosecution" is a movement that encourages prosecutors' offices to integrate more closely with the community around them. Examples of community prosecution programs include: decentralizing the office to create numerous "satellite offices" in various neighborhoods; the creation of specialized courts to serve specific neighborhoods and/or specific types of crime; outreach to local interest groups, including victim's rights associations, business leaders, and minority organizations; assigning assistant district attorneys to work in police precincts and sending them to neighborhood meetings to explain prosecutorial policy and receive feedback; and increased coordination with other local government agencies (such as children's services, the parks department, and social welfare institutions) to try to create long-term solutions to chronic social problems.
20. See Patrick Hoge, "D.A. Hallinan holds fast to long-held convictions; He sets the pace for the left, even in S.F.", San Francisco Chronicle, October 23, 2003 at A19. In 1972 the District Attorney for Boulder County was elected after campaigning against prosecution of minor marijuana crimes. See Joan E. Jacoby, The American Prosecutor: A Search for Identity 261 (1980). In Kansas a local prosecutor recently lost his re-election bid because the electorate disapproved of his "tenacious prosecution of [drug] smugglers apprehended in the county." See Carl Quintanilla, "A Prosecutor Wins Battle against Drugs but Loses the War,"Wall St. J., Jan. 16, 1997, at A1.
21. Holson and Brewer, supra note 14 at 1
22. Of course if one is dissatisfied with the influence of politics on prosecutorial decisions, there is still the significant task of devising a system that removes that influence. Appointed prosecutors might still be subject to political pressures, though the influence would be less direct. And there are many different possible organizational structures for appointing officials: appointing at the local level or the state level; appointing to longer or shorter terms, requiring a showing of cause before removal, appointing and then standing for election, etc. Any of these differences would affect the degree to which prosecutors are responsive to political pressures, and the consistency of the application of criminal laws throughout a state.