Friday, February 27, 2009
Will the election for Morgenthau's successor fail us?
Moments ago, the NYTimes reported that famed Manhattan DA Robert Morgenthau will not be seeking re-election. How should we think of prosecutorial elections that follow? Are they good for democracy? Criminal justice?
I was pleased to get some aid on the subject just this morning via a SSRN bulletin. Ron Wright (WFU), a regular guest-prawf here, has just posted on SSRN a draft of what looks like a great article that will help us think through some of these issues with more clarity.
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As a non-expert, I've found Angela Davis' book, Arbitrary Justice: The Power of the American Prosecutor (2007), quite helpful for thinking through these issues, and I suspect others might as well. In her discussion of "prosecutorial accountability" she concluded that "the electoral system does not effectively hold federal or state and local prosecutors accountable to the constituents they serve." She has concrete suggestions for reform, including ways to strengthen the electoral process, but all her fairly modest proposals deserve serious consideration.
Posted by: Patrick S. O'Donnell | Feb 27, 2009 12:01:16 PM
I would just like to correct this statement on page 3 of the paper:
"In the civil law depiction of the public prosecutor’s job, training and experience hold criminal prosecutors accountable to public values and legal standards. Prosecutors in a civil law tradition perform a ministerial function as they progress through a career-long bureaucratic journey. He or she simply assembles and evaluates the available evidence; if that evidence meets the relevant standard of proof to support a conviction for each element of a crime, the prosecutor has the duty to initiate a prosecution. This lawyerly evaluation — nothing more and nothing less — constitutes the prosecutor’s job."
A very broad prosecutorial discretion is part of every civil law jurisdiction I am familiar with. From my own country, such discretion lay at the heart of last month's Court of Appeals decision to compel a prosecution against Geert Wilders. (In that case the Court used its limited review power over decisions to decline to prosecute.)
I suspect the confusion is caused by the rather important position in Latin countries of the Juge d'Instruction, who is - from a US point of view - part judge and part prosecutor. In countries with such a system, he would generally be the official charged with exercising prosecutorial discretion. Since he is a judge, he has a lifetime appointment, so no elections there.
Generally, the reason why virtually no country in the world elects prosecutors is that it is felt that too great an accountability to the electorate might lead them to prosecute cases even when the evidence isn't sufficient (i.e. where the defendant might very well be innocent), simply because the public demands its pound of flesh.
Posted by: Martinned | Feb 28, 2009 11:20:44 AM