Public Defender Elections and Popular Control Over Criminal Justice
Ronald F. Wright
Wake Forest University - School of Law
April 16, 2010
Missouri Law Review, Symposium, 2010
Wake Forest Univ. Legal Studies Paper No. 1591008
Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal courtroom, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all the states are elected at the local level. The public defender, however, is typically not an elected official, even though the defender is a public employee with important budgetary and policymaking authority over criminal justice. Why the difference?
As it happens, we have some actual experience to draw upon in answering these questions because a few jurisdictions actually do elect their public defenders. Florida, Tennessee, and a few places in California and Nebraska elect their chief public defenders at the local level, and have done so for decades. This article reviews the existing evidence about the election of criminal justice officials and presents new empirical evidence about the campaigns and outcomes in public defender elections. Voters respond to candidates for the public defender’s office much in the same way that they react to candidates for the prosecutor’s office: they choose the incumbent, even more often than they do for legislators and chief executives.
The main difference between prosecutors and public defenders lies in the number of available controls over these two different public employees. Public defenders are bound at every turn by their professional responsibilities to their clients, the limited defenses available under criminal codes, and their limited budgets for investigations and factual development. Prosecutors, on the other hand, control many of the key outcomes in criminal justice without relying on other actors. Thus, voters directly monitor criminal justice actors when other controls over these officials are the least effective – put another way, elections are a last resort for holding criminal justice actors accountable to the public.
Voters can appropriately set the general direction and priorities of the system. Elections of the public defender, on the other hand, give the voters influence over the strategies and outcomes for particular cases, such as the techniques a defense attorney can use when cross-examining police officers at trial. This is a task that we normally do not trust voters to perform.
Number of Pages in PDF File: 25
Keywords: Public defenders, prosecutors, elections, judicial elections, adversarial system, voter behavior
Date posted: April 18, 2010