How Prosecutor Elections Fail Us

Flashcards summarizing key concepts from the lecture notes on prosecutor elections.

Prosecutorial Accountability

The ideal that government officials with discretion should also be accountable.

Prosecutor Elections

A direct democratic method for holding lead prosecutors accountable for discretionary choices by asking them to stand for election.

Electing Prosecutors

In civil law systems, this idea is unusual; training and experience are believed to hold criminal prosecutors accountable to public values and legal standards.

Ministerial Function

The concept that prosecutors should simply assemble and evaluate available evidence, initiating prosecution only when the evidence meets the standard of proof.

Prosecutorial Discretion

The American Bar Association standards state that a prosecutor may decline to prosecute even with sufficient evidence for conviction if it aligns with public interest.

National Sample of Prosecutor Election Outcomes

Reveals that incumbents do not lose often, mainly because challengers rarely come forward, limiting voter opportunities to learn about the incumbent's performance.

Typical Rhetoric in Prosecutor Election Campaigns

Campaign speeches often focus on a few high-visibility cases rather than the overall pattern of outcomes or genuine ideological differences, failing to address whether criminal law is applied according to public values.

Strategies to Improve Prosecutor Accountability

Strengthening elections by improving voter information or aligning voter incentives, or promoting alternatives to election campaigns by increasing prosecutor transparency.

Accountability for Police

Primarily relies on legal doctrine and institutions to control police actions, using the federal constitution, state constitutions, statutes, and internal regulations.

Accountability for Judges

Utilizes a blend of legal and electoral controls, including constitutional limits, statutory limits, procedural rules, sentencing guidelines, and elections or appointments by elected officials.

Legal Controls over Criminal Prosecutors

Are relatively weak, leading to a greater reliance on voters for accountability.

American Political Climate on Crime

Voters expect prosecutors to take the lead in addressing crime and legislators to provide the legal tools necessary, resulting in expansive criminal codes.

Legislative Impact on Prosecutors' Power

Criminal codes tend to cover more behavior and increase the range of punishments, expanding the power of prosecutors.

Legislative Oversight

Legislatures show more interest in monitoring and limiting other executive branch agencies, such as health and safety regulators, while criminal enforcement bureaucracies receive regular funding with little ongoing accountability.

Judicial Review of Prosecutor Choices

Judges view such choices as quintessential executive choices, insisting only on minimal factual support for the charges and not evaluating the prosecutor’s broader priorities.

Regulation by the Legal Profession

State licensing authorities offer limited accountability, with few disciplinary proceedings and light punishments for prosecutors.

Professional Conscience of Prosecutors

The prosecutor must remain committed to the ideal of responsible prosecution, doing the job well without external prompting.

Democratic Legitimacy

Elections can control prosecutors’ actions, keeping them consistent with public values without detailed legal rules.

Localized Accountability

The system is radically decentralized with prosecutors elected locally, close to the community, emphasizing citizen governance.

Empirical Study of Prosecutor Elections

There is remarkably little empirical study of prosecutor elections.

Concentrated Issues

Prosecutors deal with a limited range of salient public policy questions related to crime, making it easier for voters to evaluate their work.

Prosecutor Election Outcomes

Consist of low turnover and few challenges, meaning prosecutors rarely have to explain their choices to voters.

Content of Election Campaigns

Candidates focus on individual qualifications rather than the overall performance of the office, with claims relating to quantity of cases processed rather than the quality of results. Campaigns often fail to link the incumbent’s choices to public values.

Nationwide Surveys of Chief Prosecutors

Demonstrate low turnover, with 40% of chief prosecutors serving twelve or more years.

Incumbent Success Rate

Incumbent prosecutors won 71% of general elections, and 95% of elections when they sought re-election

Scarcity of Challengers

Incumbent prosecutors ran unopposed in 85% of the races they entered.

Success Rate When Opposed

When incumbent prosecutors attract an opponent, the opponent holds surprisingly good odds of winning, with incumbents winning only 69% of opposed races.

Election Outcomes in Larger Districts

Incumbent prosecutors in larger districts face more challenges, with unopposed incumbents dropping to 55% when at least 100,000 votes were cast.

Campaign Content

Candidates talk about character and individual experiences more often than office performance, focusing on issues of personal integrity and notorious past cases.

Election Themes

Emphasize the relationships the chief prosecutor maintains with other prosecutors, law enforcement, and other groups.

Office Performance Claims

Rely primarily on the backlog of criminal cases and the slow processing of cases, with less frequent discussions of conviction rates.

Improved Metrics of Quality

Might include the 'convicted as charged rate,' changes in acquittal rates, consistency within the prosecutor’s office, efficient use of office resources, and punishment levels obtained.

An Administrative Law Strategy

Can encourage the work of monitoring agents by insisting on expertise, inviting participation from interested parties, and promoting transparency.