Prosecution and the Electorate

By: Jacob Longman

Most countries do not elect their prosecutors. The United States, in fact, is the only country in the world that does. This brings a uniquely political tint to what, in other countries, is a purely administrative criminal justice system.

Originally, the United States was no different. Immediately following the Revolutionary War, governors and legislatures appointed district attorneys and prosecutors. Without getting into too much history, this began to change around the 1830’s and by the start of the Civil War, this was the case in about 75% of states. Today, only three states do not elect their district attorneys and Louisiana is not one of these.

The coupling of the checks and balances of democracy with the office of the prosecutor provides some unique advantages. First, it allows the people to directly choose their candidates. Regardless of the merits of this approach, it certainly decreases the risk that a candidate will be appointed through nepotism or cronyism. It’s worth noting that this was the original reason the states elected their prosecutors.

Second, it allows the people to “un-choose” their district attorney. This last point is arguably more significant than the first. When something isn’t working in a democracy, or the people are otherwise generally unhappy with the status quo, the assumption is that the electorate will simply vote the ineffective out of office. The people have this mechanism for change, and when used it is essential to the continued operation of a democratic system of government.

Third, and finally, it centralizes criminal policy at a local level. This allows people to directly support policies that they favor and actively campaign against policies they’re against in a way that will have an immediate impact. It also allows, when coupled with state sovereignty, for different criminal acts to be prosecuted in different ways according to the beliefs and ideals of the respective state and city. A prime example of this is Colorado, where prosecutors in both Denver and Boulder decided not to pursue convictions for marijuana possession before it was legalized.

All of the positives aside, the marriage between politics and prosecutors presents some problems. While combining democracy and the criminal justice system brought the best of both systems to the other, it also brought the worst. The biggest, and most pressing issue is that about 95% of incumbents running for the district attorney win re-election. About 85% of those are unopposed in the general election.

There are a couple of reasons for the lack of opposition but the most pragmatic is likely one of the most political. It does not behoove a practicing ADA to try to take his boss’s job. It also does not behoove a practicing defense attorney to try to take the job of a Chief Prosecutor. While the rewards are great, failure could very likely mean a de facto banishment from the legal community the attorney comes from. The risks, quite simply, outweigh the reward.

Another issue concerns policies and character. Social science tells us that the American electorate places a disproportionate amount of regard in their perception of a candidate’s character as opposed to his platform. Merits of this aside, this balancing effectively nullifies the theory that the electorate will choose an individual who best represents the criminal justice policies they would like to see implemented. It’s not that an individual with a chosen character wouldn’t apply the policies the electorate wants but simply that the electorate does not place a premium in their decision making process on those policies.

Further, voter apathy also plays a part. Criminal justice administration is a very narrow and specialized field. Concepts and theories regarding its application are complex and even an informed voter would have a hard time staying on top of the newest research and the actions of the District Attorney to integrate those findings into his office and policies. The ramifications of even the most minor changes can take a considerable amount of time and energy to process. Most voters don’t turn out for the Presidential election and very smart people spend a large amount of time to make the platforms of each presidential candidate simple to understand. None of this substantively, in actuality, occurs in the election for a district attorney.

This column began, in the research phase, as an examination of the way politics influenced the application of criminal laws. Unfortunately, it morphed into something else; an examination of democracy and criminal justice in America. The truth is as tragic as it is simple: people rarely hold their prosecutors responsible for the application of criminal laws. Therefore, politics rarely affects the application of it all.