Public defender elections and popular control over criminal justice.

• Author: Wright, Ronald F.
• Position: Broke and Broken: Can We Fix Our State Indigent Defense System?

Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal courtroom, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all states are elected at the local level. Judicial elections offer more of a mixed bag, but a strong majority of jurisdictions elect their judges in some form or other. Unlike prosecutors and most judges, however, the public defender is typically not an elected official, even though the defender is a public employee with important budgetary and policymaking authority over criminal justice. Why the difference? Do we believe that voters would behave markedly differently when electing public defenders? Or do we believe that public defenders themselves would respond to voter input in less desirable ways than other criminal justice officials? As it happens, we have some actual experience to draw upon in answering these questions because a few jurisdictions actually do elect their public defenders. Florida, Tennessee, and a few places in California and Nebraska elect their chief public defenders at the local level, and have done so for decades. (1)

Part I of this Article reviews the existing evidence about the election of criminal justice officials and presents new evidence about the campaigns and outcomes in public defender elections. Voters respond to candidates for the public defender's office much in the same way that they react to candidates for the prosecutor's office: they choose the incumbent, even more often than they do for legislators and chief executives. (2) The candidates themselves also behave fairly similarly in public defender and prosecutor election campaigns. Both the prosecutor and the defender candidates spend a disappointing amount of time in their campaign speeches discussing the actions of attorneys in particular cases.

Part II explores why appointment remains the dominant method for selecting the public defender in the United States, despite the appeal of elections in terms of democratic theory. It is possible that the dominant pattern in the states--the election of prosecutors but not public defenders--simply reveals confusion or an incomplete evolution toward a more consistent approach to the selection of all criminal justice officials. Perhaps we should not elect any criminal justice actors--neither the prosecutor, judge, sheriff, police chief, nor the defense attorney. On the other hand, perhaps we should elect all of them, since all of these officials make decisions about spending taxpayer dollars and applying public morality.

I believe, however, that we will continue to elect some criminal justice officials and not others and that our inconsistent use of elections is attractive as a normative matter. Even though the elections of prosecutors and public defenders share many features, public defender elections present more reason for concern despite their similarities on the surface. Elections are easier to misuse when we select public defenders, because candidates who hope to appeal to voters often make promises that undermine the basic functions of the adversarial process.

The main difference between prosecutors and public defenders lies in the number of available controls over these two different public employees. Public defenders are bound at every turn by their professional responsibilities to their clients, the limited defenses available under criminal codes, and their limited budgets for investigations and factual development. Prosecutors, on the other hand, control many of the key outcomes in criminal justice without relying on other actors. Thus, voters directly monitor criminal justice actors when other controls over these officials are the least effective. Put another way, elections are a last resort for holding criminal justice actors accountable to the public. We need that last resort for prosecutors, but not for public defenders, because of the rich set of controls that already apply to public defender work.

Public defender elections also differ from prosecutor elections because they tempt voters to override the normal operation of the adversarial system of fact-finding in particular cases. In those states where voters choose the prosecutors but not the public defenders, elections allow voters to speak at a high level of generality about criminal justice policy. (3) Voters can appropriately set the general direction and priorities of the system. Election of the public defender, on the other hand, tends to give the voters influence over the strategies and outcomes for particular cases, such as the techniques a defense attorney can use when cross-examining police officers at trial. This is a task that we normally do not trust voters to perform. Fortunately, we have created a system that recognizes some of our own limitations as voters.

1. THE VOTERS AND THEIR CRIMINAL JUSTICE OFFICIALS

   Elections play some role in selecting the public employees who work in most leadership positions in criminal justice. That role is different, however, for the various actors in the system. The role of elections is pervasive for prosecutors. It takes a more attenuated form in the selection of law enforcement leadership (police chiefs and sheriffs) and judges. Finally, when it comes to public defenders, elections are the exception rather than the rule.

   This section reviews the empirical evidence about the election campaigns of these criminal justice officials and the behavior of voters. In many respects, the elections of prosecutors, judges, and public defenders operate similarly. Voters behave in reasonably similar ways when prosecutors, judges, law enforcement agents, and public defenders ask for their votes. (4) In each case, the quality of guidance that the official receives from the public is diffuse and ineffective.

   1. The Voters and Their Prosecutors

      Virtually all prosecutors in state systems in the United States are elected. (5) The highly visible federal system, which produces only a tiny portion of the country's criminal convictions each year, is one of the few exceptions. The President appoints a U.S. Attorney as the chief prosecutor in each federal district. (6) Exceptions also appear in Alaska, Connecticut, Delaware, New Jersey, Rhode Island, and the District of Columbia, where local prosecutors are appointed rather than elected. (7) In all the other states, however, the voters at the local level (typically at the county level) select the area's chief prosecutor. (8)

      Local chief prosecutors are responsible for applying the broad provisions of the state criminal code to fit the contours of local morality and deciding where to direct the limited state and local budget for criminal prosecutions. Given the extent of the prosecutor's power, it is not surprising that American voters have treated the prosecutor position as an elected office since the first expansions of the democratic franchise in the early nineteenth century. (9)

      Furthermore, the election of prosecutors occurs in the context of weak controls from other sources. The tools available to promote consistent behavior by prosecutors, guided by legal values, are extremely limited. (10) In a constitutional order that celebrates both separation of powers and checks and balances, the separation matters far more than the balances in the daily reality of the local prosecutor. American state legislatures do not write criminal codes that constrain prosecutors to the same extent one finds in other industrialized democracies, and legislators do not actively monitor the work of criminal prosecutors to prevent them from misapplying their legal tools. (11) Constitutional doctrines, such as the bar on bills of attainder or ex post facto laws, prevent the legislature from becoming involved in particular prosecutions. (12)

      The judicial and executive branches also do not control prosecutors in a systematic way. Judges give prosecutors wide berth when they decide which charges to file. (13) While the judge has nominal power to dismiss filed charges, as a practical matter, judges defer to prosecutorial decisions about the dismissal or other resolution of charges because the prosecutor holds more information about the case at hand and about the relative importance of other cases that the prosecutor plans to file. (14) Even within the executive branch, the local prosecutor is not a part of a tight statewide hierarchy of prosecutors. While he or she is technically the chief prosecutor in the state, the state's attorney general usually only has statutory power to step into cases at the invitation of the elected local prosecutor and only offers resources to assist in specialized cases. (15)

      Given the extremely limited checks on prosecutors from the legislative and judicial branches or from higher up within the executive branch, there are limited methods available to hold prosecutors accountable to the public. Thus, state governments have placed lots of eggs in the election basket. (16) Yet, there are reasons to be optimistic that local elections will keep prosecutors closely tethered to local priorities in the enforcement of criminal law. (17) one would expect, for example, that prosecutors in urban areas hear different messages from voters in their jurisdiction than rural prosecutors would hear in theirs.

      It is difficult, however, to find evidence that prosecutors respond to any messages that the voters deliver during the campaign or on election day. If voters were sending valuable information to prosecutors, observers would find that incumbents periodically misjudge the public mood and lose their reelection campaigns. It appears, however, that incumbent prosecutors win reelection at an extremely high rate (95% of the races they enter, and 71% of all races),18 even higher than the incumbency success rates for state legislators. (19) Because incumbent prosecutors have...