In November, people will vote for all 435 members of the House of Representative, 35 senate seats, and 39 state and territorial governorships. Most media attention will be focused on these races. Hardly any attention will be paid to one of the most important elected offices and that is the prosecutors. There are a total of 2,437 elected prosecutors in the US, going under various titles from county district attorneys to state attorney generals. In all but three states, prosecutors are elected. In many ways, prosecutors are the most important people in the legal system since they have the power to decide whether to pursue a case, whom to charge and with what crime, make plea deals, strongly influence who gets bail and how much, and they and have great power over the flow of information pertaining to the case. And yet, 85% are elected unopposed and I suspect that few can name the person who occupies that position in their area.
A recent study by the Women Donors Network found that as a result of this lack of attention, these offices do not reflect the population at large. 95% of prosecutors are white, 79% are white men (despite making up just 31% of the population), and just 17% are women. 4% are men of color and only 1% are women of color (Kimberly Foxx in Chicago is one of the few). In 14 states, every elected prosecutor is white. You can see a nice graphic of the results here. The WDN press release has more. Where I live,the title of the prosecutor is Cuyahoga County Prosecutor and he too is currently a white male. But at least from 1991 to 1999 we had a black woman Stephanie Tubbs Jones. The county demographics can be seen here.
In the wake of the many recent cases of police officers not being charged with the killing of people of color, people have woken up the importance of the elected prosecutors’ office in implementing real reforms of the legal system and they are focusing more attention on these races. I wrote recently of civil rights attorney Larry Krasner who won the office of district attorney in Philadelphia and immediately set about implementing significant reforms.
The Philadelphia race was a pilot project by the ACLU to see if nonpartisan voter education could get people to pay more attention to this important but ignored office and it worked. They are now replicating that effort in nearly 30 states, sending out volunteers to knock on doors and talk to people. They are organizing forums to ask candidates how they plan to reduce mass incarceration and racial disparities in the prison system, so that prosecutors can no longer simply slide into office without taking a stand.
Tomorrow in St. Louis county, Missouri, where the killing of Michael Brown in Ferguson four years ago sparked the Black Lives Matter movement, voters have the chance to elect Wesley Bell, a reform-minded prosecutor who happens to be black, to replace the current incumbent who has been in the office since 1991 and was the one who did not charge anyone with the Brown killing.
UPDATE: John Oliver had an excellent segment last night on the role of prosecutors.
Elected prosecutors and judges will never cease to blow my mind by how awful an idea they are. Prosecutors are incentivized to do whatever it takes to get high conviction rates so they can run for re-election on their records. Even worse, so are judges. When I saw an ad for a judicial election from the US where the incumbent stated his conviction rate, I screamed “THAT’S NOT YOUR DAMNED JOB!” (inwardly) so friggin’ loud.
@Tabby. Agreed 100%. As a Canadian who has lived in the US for almost 20 years I will never get used to this insane practice. This contributes to the incarceration rate in the US while bringing money and politics into the legal system. I don’t vote here, we refuse to become US citizens, but I follow the news as much as anyone and I have no idea who would make a good judge, prosecutor or sheriff. No average voter would. It’s just plain stupid.
@ Tabby Lavalamp
Elected prosecutors and judges will never cease to blow my mind ….
But we live in an oppressive monarchy (Hi, Liz) and do not enjoy the advantages of true democracy.
It really is mind-boggling. Elect prosecutors? Taber…!
The idea might have even worked in a small agrarian society where the biggest urban conglomeration was about 1,000 inhabitants. Once one is outside of a small community with its strong social sanctions on misbehaviour, all hell can break loose.
Setting up a system where one is rewarded for convictions, no matter what, seems a trifle rash. And one where judges are rewarded for the severity of theirs sentences might not be the best idea either.
Certainly, I don’t like the idea that a Crown’s future job prospects may depend on getting me a life sentence for littering.
Setting up incentives for judges to get more convictions is obviously wrong. However, I think it’s not inherently wrong to do the same for prosecutors. Rather, it’s wrong to set up that incentive and also expect prosecutors to be “neutral”. However, historically, prosecutors were anything but neutral, and historically, i.e. circa 1800, most prosecutors were the victims of the alleged crime (or their attorneys), e.g. biased as fuck. The big problem is when prosecutors have so much discretionary power with practically zero oversight, plus incentives to achieve high conviction rates. If you didn’t already know this, then I strongly suggest reading the following paper. Especially if you’re American, but it also has a lot of bearing on historical English practices too.
ARE COPS CONSTITUTIONAL?
Roger Roots*
Seton Hall Constitutional L.J. 2001, 685
https://constitution.org/lrev/roots/cops.htm
@ 4 EnlightenmentLiberal
Thanks, an interesting link, but Tabby and I are from the modern Commonwealth ( in our case Canadian) legal tradition. The job of the Crown is to see justice done. It has nothing to do with a “notches in the belt” number of convictions. (Mind you, based on absolutely no data, I suspect this may happen, simply due to lawyers’ ego).
A Crown attorney has the same duty to defend an unfairly accused individual as to vigorously prosecute a legitimately suspected criminal.
Incentiving the system so that a Crown is rewarded for their number of convictions is a perversion of justice.
For emphasis and clarity:
I totally agree. It also is a perversion of justice when American government prosecutors are rewarded for high conviction rates, but only because of the unequal power between prosecutors and defenders, and because prosecutors can bring additional charges in order to extort a plea bargain with practically zero oversight. There’s also the problem of the collusion between government prosecutors and cops, which is a related issue, but I’ll just defer to my link for now.
I argue that America doesn’t have an adversarial criminal justice system, and it hasn’t for at least 100 years. The criminal “justice” system today is a railroading system where everything is stacked against the accused. They took the worst parts of the adversarial system, and combined it with the worst parts of the sort of system like Canada’s.
Ultimately, I think it’s in large part a cultural problem. Too many Americans are “tough on crime”, and simultaneously blindly-trusting of government authority, specifically police and government prosecutors. And that I think is inextricably linked to our particular history of racism, because the police and government prosecutors are one way to “keep them in their place”. Based on my reading of history, I strongly suspect this is what happened: white Americans faced the prospect that the 14th amendment demanded equal treatment under the law for blacks. Rather than permit blacks to enjoy the same dignity that whites enjoyed under the law, whites decided that it was more important to permit the government security forces to “keep them in their place”, and thereby took a shit on civil liberties for everyone, to enable the police to shit on blacks. It was understood that whites would continue to enjoy the same protections while the police would shit on blacks, but this policy came back to shit on the whites too, because the official legal precedents that they were building applied equally to whites and blacks.
Fuck my country. (lol)