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January 19, 2020

The Prosecutors and Politics Project releases "National Study of Prosecutor Elections"

The Prosecutors and Politics Project at the University of North Carolina School of Law this past week released this massive new report titled simply "National Study of Prosecutor Elections." Here is the start of the 350+-page report's "Executive Summary":

American prosecutors wield significant power in the criminal justice system.  They must decide when to file charges, which crimes to prioritize, and how lenient or harsh to be in plea bargaining.  Prosecutors are entrusted with this power, in part, because they are accountable to voters.

In most states, that accountability comes in the form of direct elections.  Forty-five states elect prosecutors on the local level.  These local elections provide a powerful check on the power that prosecutors wield — at least in theory. But how does that check operate in practice?  Put differently, how much of a choice do voters have about who will make important criminal justice decisions in their communities?

This report presents the results of a nationwide study of prosecutor elections. The first of its kind, the study gathered data from every jurisdiction that elects its local prosecutors in a recent election cycle.  The study showed great variation in elections across the country.  Some elections gave voters choices in both primary and general elections to choose their local prosecutor.  But other elections were entirely uncontested. And some elections did not even have a single candidate on the ballot.

Whether an election gave voters a choice seems to depend on two different factors.  The first of those factors is the population in the district where the election was held. Communities with large populations tended to have more than one candidate in their elections, while communities with small populations tended to have uncontested elections.

Beginning in February 2018, the Prosecutors and Politics Project began collecting information about the most recent election cycle in each state that elects its local prosecutor. For most states, that meant we collected data from the 2014 or 2016 election cycle.  But in some states the most recent election had occurred as far back as 2012 and as recently as 2017.  In total, we collected election results for 2,318 districts across 45 states.

January 19, 2020 at 01:28 PM | Permalink


Some suggestions for follow-up that might be relevant to whether elections are contested: 1) number of attorneys in the jurisdiction (simply put a small county might not have enough attorneys to really have a contested race); 2) salary of prosecutor (correlated to number of attorneys in the county; if prosecutor not a well-paid position might not have enough attorneys willing to sacrifice income for the position); 3) how long has the incumbent been in office/was the incumbent appointed to fill a vacancy in the middle of the term (a "popular" incumbent might get a couple of passes during elections until voters begin to perceive that the prosecutor has been there "too" long; a mid-term appointee might get a contested race because voters want to choose their prosecutor rather than have governor/county government make the pick for them); and 4) is the county undergoing a realignment (if one party has been in control of the other county but the other party is now winning races, potential challengers in the former minority party might see a chance to win; on the other hand, if the prosecutor represents a party with a sizable majority, potential challengers from the other party might see the race as hopeless).

Since study just reports data without for now hypothesizing reasons, I would offer the following anecdotal experience. Small jurisdictions tend to be more unified in their view of what a prosecutor should be doing with a small local bar that could provide opposition. As long as the incumbent has not been rocking the boat or stepping on the bar's toes more than the job requires, there is not going to be a challenger because the majority is satisfied with the status quo. On the other hand, if there are problems at the courthouse, everybody "knows" about it and there is room for a challenger to step up and win.

A large jurisdiction, however, tends to mean more diverse viewpoints on what a prosecutor should be doing. At the same time, you have a large number of attorneys with different ties to different segments of the community. An election challenge in such a jurisdiction (particularly in the primary) is about turnout and a realistic path to victory exists for a challenger. And, of course, in an open election, nobody starts out as a sure thing.

Posted by: tmm | Jan 21, 2020 12:08:35 PM

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