February 17, 2009
"How Prosecutor Elections Fail Us"
The title of this post is the title of this new piece on SSRN from Professor Ron Wright. I heard Ron present this work at an early stage, and it mines so many interesting and important issues from fresh perspectives. Here is the abstract:
There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.
Does the electoral check on prosecutors work? There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.
Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections-described here for the first time-reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.
Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.
February 17, 2009 at 09:42 PM | Permalink
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Professor Wright was one of my favorite WFU professors back in the day. He was new to Wake Forest when I took his classes and quickly proved to be one of the school's best hires--in terms of both his academic scholarship and his practical experience, which he effectively and willingly shared with his students. You can tell I'm a fan. I'm looking forward to reading this article in its entirety. Thanks for posting.
Posted by: Steve Levin | Feb 17, 2009 10:10:30 PM
Not very convincing.
Elected district attorneys frequently are elected at the county level. There are 3,034 operational counties, and only 473 have populations of 100,000 or more. The median county population is a little less than 25,000 people. These less urbanized counties typically have not so many lawyers, and ever fewer with criminal law competence (especially important relative to policy preferences in smaller counties), managerial expertise, and electoral inclinations. The pay isn't bad for criminal law, and once a county finds someone who is doing their job, they stick with him or her.
Legislative seats can draw from a much larger pool of eligible candidates than DA races (since non-lawyers can run for office and most people aren't lawyers, let alone lawyers competent to prosecute serious criminal cases -- only about 5% of the bar has relevant current employment for that position), and due to the one man, one vote rule, there are far fewer tiny legislative districts than there are DA electoral jurisdictions.
But, Colorado's experience with elections of DAs has been that turnovers proceed quite quickly when there is a controversy that renders a DA unpopular. For example, the judicial district that serves Aspen, Colorado recently had a DA replaceds as a result of controversy, as did the judicial district that serves Colorado Springs, Colorado. In urban counties, open seats and unpopular DAs draw contested elections and/or primary challenges. Also notably, in Colorado, which has a criminal libel statute and other opportunities to intervene in politics frequently requested by participants in political fights, both Democratic and Republican DAs generally refuse to intervene, despite the fact that they are partisan elected officials.
Real DA fights are more often at the primary level than the general election level, simply because few counties are competitive on a partisan basis.
While a DA faces a myriad of decisions about allocating resources and making deals in individual cases, it is fair to say that in the U.S., elected DAs overwhelmingly err in the direction of overzealous prosecution, rather than neglecting to prosecute crimes.
This is important, because there are judicial remedies to vindicate the individual rights of individuals who targets of overzealous prosecution, but are few meaningful judicial remedies to vindicate the individual rights of crime victims and their neighbors who live in fear of crime. Unlike continental criminal justice system, a prosecutor has no enforceable obligation to prosecute a crime, even if all the evidence needed to make a rock solid case arrives on his desk wrapped up in a bow.
Indeed, the absence of such a judicial remedy is also one of the strongest arguments for the individual right to armed self-defense under the Second Amendment.
This kind of problem is not without precedent. It was a serious issue in the Reconstruction South for freed slaves. Lynchings were epidemic there, and in a fair share of the rural West, and those lynchings were due to a combination inaction of DAs and law enforcement in pursuing lynchers, and to a lack of popular faith in the capacity of DAs to do their jobs. Notably, this was a period where territorial government, Jim Crow laws and political disruptions caused by Reconstruction, had undermined ordinary state and local government politics.
The counter-examples, where crimes are prosecuted at the state level (generally within the office of an elected attorney general), like Florida, and the federal model, where crime prosecution is led by political appointees (a model also used in Italy, France, Spain, Mexico and Columbia), don't have a lot to recommend them by comparison.
Florida has made more than its fair share of headlines for questionable prosecutorial conduct. For example, in one case not so long ago, a prosecutor refused to drop a case against a man for possession of prescription drugs pursuant to a prescription, despite a state court of appeals ruling excoriating that decision.
The biggest non-prosecution of felonies issue in the U.S. today involves a failure to prosecute felonies committed in Indian country, where prosecutions are the responsibility of appointed U.S. Attorneys. It is also not obvious that the drug war (which while mostly a state function has a disproportionately share of questionable sentencing decisions made at the federal level) would have been such a high priority for U.S. Attorneys relative to other obligations like prosecuting violent crime, or would focus on the high sentence/low authority mules and street dealers that it often does, if U.S. Attorneys were elected.
Appointed DAs and centralized prosecution channels have been identified as one important reason why it was possible for the Mafia in Southern Europe, and drug cartels in Mexico and Columbia, to corrupt the law enforcement system. France was famous for the extent to which one had to go to Paris to put pressure on local officials like prosecutors. Elected DAs, because they are autonomous, must be "bought" individually at the local level, and can maintain power only if the public is satisfied with the results.
Appointed county or city attorneys who prosecute ordinance violations, likewise, tend to have less of a reputation for vigorously enforcing ordinances across the board so as to protect the neighborhoods that are supposed to benefit from those ordinances. Prosecutions are brought, but few jurisdictions are known for zealous ordinance enforcement.
Also, unlike many other state and local non-legislative elected officials, there are legitimate partisan issues between candidates that the public can understand. A judge that runs a "tough on crime" campaign raises ethical issues, a DA does not. The same also cannot be said for more technocratic partisan elected offices such as coroners, county surveyors, county engineers, road commissioners, county clerks, county treasurers and county assessors.
Posted by: ohwilleke | Feb 18, 2009 2:44:16 PM
ohwilleke. I'm with you. Where I live, the incumbent has lost the last three elections in a row. None of them has been doing a good job frankly.
I do agree there can be problem with low turn-over but I don't think it's always a bad thing. We have a democratic system and it actually works. People typically have to be angry to get it to work right, but the tool is there and functions.
If people are not throwing out the DA when they should, that says something about the people as much as it does the DA.
Posted by: Daniel | Feb 18, 2009 7:42:03 PM