The United States of America is the only nation in the world which enfranchises its population in the selection of the principal authorities for law and order. Currently, forty three states in America have an elected chief law enforcement officer: The most common nomenclature is district attorney, but, depending on the particularities of the state concerned, the role is also known by other titles such as commonwealth’s attorney (Kentuck and Virginia) and state attorney (or state’s attorney in Florida). The role is akin to that of a crown prosecutor in England and Wales – falling under the aegis of the Crown Prosecution Service (CPS). For those remaining seven states, the state attorney is a gubernational appointee – meaning that he or she is appointed by that state’s governor. This means that of the total number of America’s most senior legal advisors and law enforcement officers, at State level, eighty-six per cent are publicly elected.
At first glance, this practice appears both democratic and, more insidiously, to be of negligible consequence. The common perception is that since laws are enacted by national and state legislatures, the power District Attorneys possess are largely constrained when it comes to representing a government body in the prosecution of a criminal case. Therefore, the position is viewed as more titular in nature. Put another way, it is often viewed that criminal cases will proceed in accordance with the due process and fairness which is codifided in said federal and state laws to which DAs are bound. But where DAs do wield a significant amount of power is in their decisions on which cases to bring to trial and the severity of the sentencing, and this should not be taken lightly. The factor that often gets overlooked is that elections confer a fixed term on a individual’s tenure in public office, and this reality affects the way those people behave. In essence, the office of district attorney has become an overtly political position.
As with politicians in the legislative or executive branches of government, at both national and state level, there comes the point where District Attorneys are compelled to fight for re-election. And, again, like politicians a DA will often become ruthless and bellicose in trying to achieve ‘quick wins’ which will play favourably with an electorate who will soon be going to the polls. This ultimately translates into the oft-trumpeted “tough on crime” maxim which often leads to harsher sentencing and underhanded tactics to increase clearance rates – criminal cases that result in charges being laid – and conviction rates at the expense of the balance between fairness and the conscientious prosecution of the law. For example, prosecutors will attempt to improve their clearance rates by forcing cases to trial which would, ordinarily, be dismissed due to insufficient evidence. All too often, this can ruin lives and reputations even when a conviction is not passed down. An extreme, but not unique, example of such misconduct in office was that of Michael Nifong: the Durham County District Attorney who was disbarred following his handling of the Duke University lacrosse team rape case in 2006. Nifong was found guilty of fraud, dishonesty, making false statements and lying about withholding exculpatory DNA evidence in the case of three members of the Duke lacross team who were falsely accused of rape.
Furthermore, while elections incentivise DAs to take more cases to trial, they also cause state attorneys to agitate for sterner prison sentences. A study conducted by Bandyopadhya and McCannon concluded that a District Attorney is almost ten per cent less likely to accept a plea bargain, and will instead take a case to court in the year before a reelection campaign. This figure increases by fifteen per cent if the election is contested. This trend has been cited as a contributing factor to America’s rapidly growing rates of incarceration and the overcrowding of prisons; and it is ominous another trend in the public selection of prosecutors that informs the demography of that overcrowding. A study in 2017, cited by Prison Legal News, revealed that 95% of elected prosecutors were white. More concerning was that 79% were white men. It cannot be ignored that such a composition among the elected judiciary could unfairly influence the treatment of cases relating to domestic violence (against a woman), abortion rights and sexual harrassment, for example. With such power conferred on these elected parties, it should be a matter of serious concern that the collective body of elected prosecutors is not representative of the population it administers through the nation’s law courts.
It is not just District Attorneys who are subject to voting contests; Twenty states hold elections to select trial court judges, while eight of those twenty hold elections at all levels of trial court. The term of office can be as high as 10 years in some jurisdictions (14 at state supreme court level) and like DAs, judges succumb to the machinations of the political machine when it comes to time to campaign for reelection. Under the current system it is self-evident that prosecutors are motivated seek contributions to their reelection funds and this can lead to interactions with interest groups and lobbyists whose involvement in such campaigns can blur ethical lines and compromise the fairness and decision-making of public prosecutors. Not to mention that all too often, some judicial contests descend into the mudracking and bitter quarrels which are symptomatic of the more traditional races for Congress and the Presidency.
In contrast to that of a DA, judiciary elections can be either partisan – where the candidates’ party affiliations and revealed alongside their name on the ballot – or nonpartisan (currently all District Attorney elections are fought on a partisan basis). Proponents of the partisan election method believe that affiliating candidates with a political party helps to communicate their core values and beliefs. This is ironic give that the rationale for the nineteenth-century reforms, which brought into being elected prosecutors, was that it would remove partisan politics and force those who were elected to be accountable only to the voting community. On the other hand, detractors cite the lack of obtainable information regarding a candidate’s personal and professional history as a crucial flaw which is especially acute where nonpartisan elections take place and voters cannot even attach their flag to the political party to which a candidate belongs.
There is also the convincing argument that eighty-five per cent of elections go uncontested, which challenges the ostensibly democratic values that supposedly underpin judicial elections. In Spokane County, during elections in 2016, ten of twelve superior court justices had their terms automatically renewed for a further four-year term due to lack of a challenger. In the 2008 and 2012 general elections, all twelve ran unopposed and this is an oft-repeated pattern across all the sovereign states of America – this year, Florida saw 11 incumbent county and circuit court judges win reelection unopposed. How can judges be accountable to the people, if the people have no alternative candidate to hold up against the incumbent? Supporters of judicial elections can hardly call to witness ‘democracy’ in their efforts to defend the practice when the majority of incumbents are de facto lifers in office.
There needs to be a stronger and more united advocacy of a much needed overhaul of the system of DA and judicial selection in American states: based on meritocratic principles with candidates appointed, and held to account, by nonpartisan committees. This would require significant amendments to state legislation which will be difficult to get through given that it is wealthy and powerful individals and interest groups who will ultimately lose out and see their influence curtailed. That the election format proves to be undemocratic, lacking in accountability and propagating a culture of politicking, especially when election time draws near, which compromises on fairness to the point of injustice in favour of political manoeuvering to curry favour with a population who applaud “toughness” on crime, should be evidence enough to stop the rot.