The origins of the elected prosecutor.

• Author: Ellis, Michael J.

NOTE CONTENTS INTRODUCTION I. THE APPOINTED PROSECUTOR AND THE FIRST STEPS TOWARD ELECTED STATUS A. Appointed Prosecutors B. Mississippi, 1832 C. Ohio, 1833 II. DISSATISFACTION WITH POLITICAL PATRONAGE III. POLITICAL PATRONAGE AND THE ELECTED PROSECUTOR A. Election as a Means of Removing Prosecutors from Patronage B. Prosecutors' Responsibility to Local Constituencies C. Opposition to Elected Prosecutors and Retention of Appointed Prosecutors in the South D. Prosecutorial Vacancies IV. POLITICAL INFLUENCES ON ELECTED PROSECUTORS CONCLUSION APPENDIX: CHRONOLOGY OF THE ELECTED DISTRICT ATTORNEY INTRODUCTION

The United States is the only country in the world where citizens elect prosecutors. (1) Local public prosecutors--whether called district attorneys, state's attorneys, prosecuting attorneys, or county attorneys--originated in colonial America without counterpart in eighteenth-century England. (2) American prosecutors began as appointed government officers, and they have remained so in the federal government. Between 1832 and 1860, however, nearly three-quarters of the states in the Union decided to give voters the right to elect public prosecutors. (3)

The change in the method of selecting prosecutors occurred during the same era--and in many instances, at the same state constitutional conventions--in which American government became more democratic. (4) Between 1820 and 1860, states across the country adopted new constitutions to enlarge voting franchises, reapportion legislatures, and make many more government offices, including governors and judges, elected. (5) This Note examines the transition from appointing to electing local public prosecutors and the reasons for that change. (6) Supporters of elected prosecutors argued that popular election would give citizens greater control over government, eliminate patronage appointments, and increase the responsiveness of prosecutors to the communities they served. (7) These goals were not limited to prosecutors--reformers hoped that popular elections for as many public offices as possible would place government in the hands of the electorate and out of the control of political professionals. (8) The Mississippi constitutional convention of 1832, for instance, decided to elect not only judges and district attorneys, (9) but, at the statewide level, the treasurer, attorney general, secretary of state, and auditor of public accounts; in counties, sheriffs, coroners, surveyors, treasurers, boards of police, and rangers; and, in the judicial branch, clerks of inferior courts, justices of the peace, and constables. (10) One disgruntled delegate at the 1850 Kentucky constitutional convention mused, "[W]e have provided for the popular election of every public officer save the dog catcher, and if the dogs could vote, we should have that as well." (11)

Amid the era's democratic impulses, supporters of elected prosecutors gave little consideration to the effect that elections would have on the criminal justice system. (12) Later commentators have observed that elections subject prosecutors to "untoward political influences," (13) lead prosecutors to concentrate on high-profile investigations to win favorable media coverage, (14) and have the potential to corrupt prosecutors with campaign contributions. (15) Some have even suggested that elections cause prosecutors to seek higher conviction rates. (16)

These concerns were not salient to nineteenth-century supporters of popularly elected prosecutors. Debates about popular control of government, the protection of individual rights, expansion of the voting franchise, and, in some states, issues related to slavery dominated the state constitutional conventions of the mid-nineteenth century. (17) But delegates at these conventions spent little time debating the merits of transforming prosecutors into elected politicians. (18) When delegates did discuss the question of which officers to make elective, they tended to concentrate on statewide executive offices and judgeships, not prosecutors. For instance, when a group of Massachusetts legislators called for a new constitutional convention in 1852, they engaged in "careful consideration" of whether "more important judicial offices" like judges should be elected, but mentioned prosecuting attorneys as one of many local offices that, in order to be "more conformable to the spirit of the age ... [s]hould be elected by the people." (19) On the rare occasions when prosecutors did come up in debate, both supporters and opponents of elections discussed prosecutors in terms similar to other government positions. (20) Yet the decision to elect prosecutors was all the more important because of the increased discretion that prosecutors gained over the charging and prosecution of crime during the middle of the nineteenth century,. (21)

Previous scholarship has traced the transition of American state court judges, but not prosecutors, from appointed to elected status in the late 1840s and early 1850s. (22) Some writers have described the move to elect judges as an attempt to weaken judicial power by making judges, like other elected officials, responsive to the popular will. (23) An elected judiciary was, according to this account, "part of a coherent program ... to hobble the power of the executive, the legislature, [and] the courts." (24) Under another view, the move to elect judges was motivated by a desire to strip the opposing political party of influence over government and patronage opportunities. (25) Recently, Jed Shugerman has linked the shift to an elected judiciary to the economic panics of the 1830s, which arose from debts incurred in building transportation infrastructure. (26) According to Shugerman, the movement to elect judges was intended to strengthen the ability of the judiciary to review--and strike down--the fiscally reckless actions of state legislatures. Conventions in the 1840s and 1850s produced state constitutions that severely limited the ability of state governments to incur debt and charter corporations to build infrastructure, and elected judges were necessary to enforce the new limits on government power. (27)

The change of prosecutors from appointed to elected status occurred at many of the same constitutional conventions that adopted elections for judges, so delegates to those conventions may have shared similar motivations for making both offices elected. (28) Nevertheless, efforts to explain the rise of judicial elections do not give a fully satisfactory account of why the same regime was applied to the office of district attorney. Although many state constitutions classified district attorneys as functionaries of the judicial branch, (29) prosecutors had no role in the review of statutes. Even if prosecutors were capable of checking legislative overreaches by declining to enforce criminal statutes, they could not affect state spending. It is therefore difficult for Shugerman's theory of elected judges reining in legislative overspending to explain elected prosecutors.

The idea that electing district attorneys was a means of gaining partisan advantage is also unpersuasive. If the motivation for electing prosecutors was to assure control of government for one party, Democratic and Whig leaders would have sought to make prosecutors elected when their party was politically dominant. Instead, many states began electing district attorneys when neither party would be assured of winning the next election. (30) Contrary to explanations in terms of partisan advantage, supporters of elected district attorneys intended to reduce the ability of legislatures and governors to appoint political allies as prosecutors. (31) Reformers hoped popular election of district attorneys would deprive governors of a patronage opportunity. Moreover, they hoped that district attorneys elected by the voters of each county would be more responsive to the criminal justice priorities of local communities than prosecutors selected by a governor or legislature located in the state capital.

Part I of this Note details the mechanisms for selecting public prosecutors in the early Republic, and the role prosecutors played in their local communities. Part I also discusses the decisions of two states, Mississippi in 1832 and Ohio in 1833, to adopt elected prosecutors more than a decade before any other jurisdiction. Part II discusses government patronage during this time period and popular dissatisfaction with abuses of the appointment power. Part III examines similarities and differences between the decisions to elect prosecutors and judges, as well as how popular election was a mechanism to keep district attorneys accountable to their local communities. Part IV discusses how, after becoming elected, prosecutors quickly became involved in, and later co-opted by, partisan politics.

1. THE APPOINTED PROSECUTOR AND THE FIRST STEPS TOWARD ELECTED STATUS

   Prosecutors, like many other American state- and county-government officials, were appointed officers in the early nineteenth century. But in the 1820s and 1830s, two structural trends set the stage for elected prosecutors. First, voters became dissatisfied with the appointment process. Governors gained new powers, giving one man unchecked appointment authority in many states, while in states where the legislature selected prosecutors, political parties commandeered the appointment process to reward their allies and punish their enemies. At the same time, prosecutors began to assume a larger role in the criminal justice system and gained discretionary powers over prosecutions. Voters did not trust a broken appointments process to select an increasingly important office, so popular election was a natural alternative. In Mississippi and Ohio, the first states to elect prosecutors, both of these trends were reflected in the political debates of the 1830s.

   1. Appointed Prosecutors

      District attorneys were appointed officials under state...