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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.

Here's the abstract.
How Prosecutor Elections Fail Us, Ohio State Journal of Criminal Law, Forthcoming
RONALD F. WRIGHT, Wake Forest University - School of Law

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.

Posted by Administrators on February 27, 2009 at 11:31 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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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

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

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