How Prosecutor Elections Fail Us

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.

Keywords: Prosecutorial Discretion, Prosecutor Elections, Criminal Procedure