How Prosecutor Elections Fail Us

I. Introduction

• Prosecutors wield significant discretionary power within the criminal justice system.

• Accountability is crucial when government officials have discretion.

• In the United States, electing prosecutors is a primary method of ensuring accountability.

• Civil law systems rely on training, experience, and bureaucratic processes to hold prosecutors accountable.

• Civil law prosecutors perform a ministerial function, assembling and evaluating evidence to determine if prosecution is warranted.

• The American system embraces open-ended prosecutorial power, allowing prosecutors to decline prosecution even with sufficient evidence.

• The effectiveness of democratic checks on prosecutors is questionable.

• Incumbents in prosecutor elections rarely lose, primarily due to a lack of challengers.

• Uncontested elections limit voters' ability to assess an incumbent's performance and make informed judgments.

• Campaign rhetoric in prosecutor elections often focuses on high-profile cases rather than overall patterns and values.

• Elections fail because they rarely require incumbents to explain their priorities and practices and because campaigns focus on specific cases rather than broader patterns.

• Potential reforms include improving the quality of information available to voters and exploring alternatives to election campaigns.

• These reforms, combined with external controls, could encourage prosecutions that align with public values.

II. Democratic Accountability of Prosecutors

• Multiple actors are involved in criminal law enforcement, and various methods are used to control them.

• Police accountability has evolved, with legal doctrines and institutions playing a more significant role.

• Limits on police power derive from various legal sources, including constitutions, statutes, and internal regulations.

• Electoral accountability still matters for the police, as sheriffs are typically elected and police chiefs are appointed by elected officials.

• Legal and electoral controls also apply to judges, who face constitutional and statutory limits on their rulings.

• Judges are elected in many jurisdictions or appointed by elected officials.

• Positive law has become central to controlling the work of police and judges.

• Legal controls over prosecutors are relatively weak, making electoral accountability more critical.

A. Limited Legal Sources of Accountability

• Prosecutors have tremendous power to punish for crimes.

• A parsimonious criminal code could limit prosecutorial power, but this approach is not prevalent in the American political climate.

• Legislatures tend to expand the legal tools available to prosecutors, increasing their power.

• Criminal codes cover more behavior and increase the range of punishments.

• Legislatures sometimes repeal criminal statutes in business contexts or restrict punishments and investigative tools.

• Criminal codes in the United States do not effectively limit prosecutorial power.

• State budgets could include line items that fund extra prosecutors for specific crimes, but this is exceptional.

• Legislation might create sub-units within the Department of Justice for particular law enforcement activities.

• Mandatory sentencing laws and “no drop” laws attempt to compel prosecutors to file more charges.

• Legislative directives are limited in impact, as most funding arriving in the prosecutor’s office does not have strings attached.

• Prosecutors retain discretion to determine the factual basis for charges.

• Legislatures in the United States do not effectively control the exercise of power by prosecutors.

• Judges largely defer to prosecutor choices due to separation of powers concerns.

• Judges have statutory authority to approve the dismissal of charges and accept guilty pleas, but they rarely override the recommendations of the parties.

• High-volume criminal courts and separation of powers concerns limit judges' ability to control prosecutorial discretion.

• Judges primarily catch extreme outliers.

• Rules of professional responsibility, enforced by state licensing authorities, provide limited accountability for prosecutors.

• There is little evidence of regular disciplinary action against prosecutors.

• Internal regulation within the prosecutor’s office is crucial, relying on the chief prosecutor to promote consistent choices.

• The source and motives of the chief prosecutor’s choices are still mysterious.

• Reliance on the chief prosecutor's professional conscience is important, but institutional constraints are lacking.

• Limited forces from the legislature, judges, or state licensing authorities exist.

• Elections are relied upon to keep the chief prosecutor within acceptable bounds.

B. Localized Accountability

• American people directly elect their prosecutors to maintain consistency with public values.

• Chief prosecutors in the federal system are appointed, but state prosecutors are typically elected.

• Most states elect prosecutors at the local level, fostering a close connection between prosecutors and the community.

• Local prosecutor elections create a decentralized criminal justice system with numerous separate prosecutor's offices.

• Local District Attorneys do not report to any statewide hierarchy, maintaining local control over priorities and practices.

• Despite the importance placed on elections, there is limited empirical study of prosecutor elections.

C. The Promise of Local Control

• Voter accountability is crucial due to the poor prospects for legal controls on prosecutors.

• Prosecutors deal with a limited range of salient public policy questions related to crime.

• Prosecutors answer to small, localized constituencies, fostering accountability to voters.

• This combination of concentrated issues, salience to voters, and local-level engagement creates a promising environment for real accountability.

III. Prosecutor Election Outcomes and Campaigns

• Prosecutor elections do not ensure public knowledge and approval of office policies and priorities.

• Incumbents face challenges less often than in legislative races, reducing the need to explain their choices.

• Elections produce low turnover and few challenges.

• Campaigns focus on individual qualifications rather than overall office performance.

• Rhetoric emphasizes quantity of cases processed over quality of results, with misguided attempts to measure non-ideological competence.

• Campaigns do not link incumbent choices to public values or ideological differences.

• Candidates ask voters to choose based on character rather than criminal justice-specific skills or values.

• Campaign rhetoric offers poor measures of competence and few measures of values or priorities.

A. Low Turnover, Few Challengers

• Nationwide surveys indicate little turnover in prosecutor offices.

• A national survey shows that the chief prosecutors have served for 12 or more years.

• Detailed databases reveal that chief prosecutors hold secure jobs.

• Incumbents win 71% of general elections and 95% of elections when seeking re-election.

• This pattern resembles outcomes for state legislators, but prosecutor elections produce fewer challengers.

• Incumbent prosecutors run unopposed in 85% of the races they enter.

• The scarcity of challengers may be due to the high cost of a loss.

• Relatively high rates of success for incumbents who choose to run, alongside relatively low numbers of challengers, holds true in primary and general elections.

• In larger jurisdictions, incumbents face more challenges but win a larger percentage of opposed elections.

• A rational prosecutor could plan to run unopposed in most races.

• The shadow effect of elections may exist, but high success rates for incumbents suggest it is limited.

• Voters rarely have the opportunity to approve or disapprove of the District Attorney's priorities.

• As a result, the press has less reason to monitor office performance.

B. Poor Measures of Competence, Few Measures of Ideology

• The content of election campaigns is a discouraging tour.

• Campaign debates focus more on competence than ideology.

• Candidates do not help voters characterize the overall pattern of results produced by the prosecutor’s office.

• Attention centers on a few infamous recent cases, offering voters no real guidance to evaluate the work of the prosecutor.

• Candidates concentrate on more technocratic claims about lawyerly skills or personal rectitude.

1. In Search of Campaign Content

• The localized nature of prosecutor elections poses a challenge to studying them empirically.

• News coverage of campaigns in print journalism provides a valuable source of information.

• Articles describe candidates’ speeches, statements at rallies, comments about criminal cases, editorials, letters to the editor, and other conversational settings.

• News coverage may not capture everything that influences a voter, but it provides a reasonably accurate picture of the content available to voters.

2. Individual Qualities and Cases

• Candidates talk about character and individual experiences more than office performance.

• Claims about individual qualities of the incumbent and the challenger top the list of claims made during campaigns.

• Assertions that a candidate was an “experienced, hard-nosed prosecutor” are common but offer little value.

• Individual experiences and qualifications of the candidates are the most common campaign theme discussed.

• Candidates frequently raise issues of personal integrity and misconduct, which are not good measures of accountability for performance.

• Claims about individual characteristics do not help voters evaluate the work of a prosecutor’s office.

• Focus on individual characteristics mirrors the emphasis on individual cases during campaign discussions.

• Candidates talk a great deal about last year’s notorious case, offering no real guidance to evaluate the work of the prosecutor.

• Outcomes in one big case do not reflect the quality of prosecution work more generally.

3. Office Performance and Ideology

• Voters should assess overall performance of the prosecutor’s office rather than outcomes for individual cases.

• Relationships that the chief prosecutor maintains with other prosecutors, law enforcement officials, and other groups can affect the quality of work.

• The ability of a chief prosecutor to work effectively with various stakeholders can affect the quality of work, but relationships offer an indirect measure of prosecutor quality.

• Claims about office performance often relate to the backlog of criminal cases and slow processing times.

• Candidates discuss the percentage of cases filed that result in convictions (conviction rate) less often than expected.

• The candidates believe that voters care more about the speed and quantity of work than the nature of the outcomes.

• More frequent discussions of aggregate office outcomes would offer voters a better starting point for evaluating the work of the office.

• A single measure is only a starting point, and must be tested through meaningful analysis and debate.

• Campaigns lack ideological clarity, with candidates often promising more resources without specifying which cases should receive less emphasis.

• Only a few elections involve a claim that any type of case should receive less resources or a lower priority.

• Effects on crime rates and leadership on crime policy could be important but appear less frequently in campaign rhetoric.

• The rhetoric of election campaigns places too much weight on the wrong criteria and completely ignores some criteria that could help voters make meaningful judgments.

• Voters need office-wide measures of competence based on past performance and the track record of applying the criminal sanction.

• Voters also need ideological markers or clues about the values that guide the priorities of a prosecutor.

• Current campaign rhetoric does not deliver adequate information about competence and values.

IV. Some Possible Responses

• Responses could proceed in two directions: improve the content of elections by providing better information or question the accountability technique of elections and search for ways to supplement them.

A. Improve the Metrics

• Typical campaign themes are not meaningful measures of prosecutor performance.

• They offer trial-based measures in a plea-based world and follow developments in single cases.

• Voters need detailed measures of quality in the work of prosecutor offices, focusing on plea negotiations.

• A possible measure of quality could be the “convicted as charged rate,” encouraging transparent charging and plea practices.

• Another possible improved metric might be changes in acquittal rates.

• Other measures include consistency within the prosecutor's office and efficient use of office resources based on caseload measurement

• Punishment levels obtained could be gauged by the estimate of prison years, with a dollar figure attached and a population-adjusted estimate of that county’s “share” of the statewide system.

• It will also prove necessary to change the incentives of voters to obtain and use improved information.

B. Change the Forum

• Fundamental doubts remain about whether the ballot box can create meaningful accountability for prosecutors.

• Measurement of prosecutor quality construct by special interests in mind can be another option when the group has more intense and sustained interest.

• An administrative law strategy can encourage the work of monitoring agents for measurements of prosecutor quality.

• Criminal law operates with a weakened form of administrative accountability.

• Changes to the administrative law background of criminal prosecution could go a long way toward supplementing the accountability that is possible outside the election cycle.

• It is enough to make hopeful inspiration if some of the people, some of the time, will make the most of performance measures for prosecutors.

• Prosecutor election campaigns fail us because we ask too much of them.

• If elections were to carry only part of the load and we were to rely on other devices to promote prosecutor accountability, the prospects would look brighter.

• The public must rely on many agents and many devices if the rule of law in criminal prosecution is to thrive.