Picking Prosecutors

• Author: Carissa Byrne Hessick & Michael Morse
• Position: Anne Shea Ransdell and William Garland 'Buck' Ransdell, Jr., Distinguished Professor of Law and Director of the Prosecutors and Politics Project, University of North Carolina School of Law/Ashford Fellow and Ph.D. Candidate, Department of Government, Harvard University. J.D., Yale Law School
• Pages: 1537-1590

1537

Picking Prosecutors

Carissa Byrne Hessick* & Michael Morse**

ABSTRACT: The conventional academic wisdom is that prosecutor elections

are little more than empty exercises. Using a new, national survey of local

prosecutor elections––the first of its kind––this Article offers a more complete

account of the legal and empirical landscape. It confirms that incumbents are

rarely contested and almost always win. But it moves beyond extant work to

consider the nature of local political conflict, including how often local

prosecutors face any contestation or any degree of competition. It also

demonstrates a significant difference in the degree of incumbent entrenchment

based on time in office. Most importantly, it reveals a stark divide between

rural and urban prosecution. Urban areas are more likely to hold a contested

election than rural areas. Rural areas, in which very few lawyers live, rarely

hold contested elections and sometimes are not able to field even a single

candidate for a prosecutor election. The results suggest that the nascent

movement to use prosecutor elections as a source of criminal justice reform

may have success, at least in the short term. But elections are, as of now, not

a likely source of reform in rural areas—the very areas where incarceration

rates continue to rise.

I. INTRODUCTION ........................................................................... 1538

II.METHODS OF PROSECUTORIAL SELECTION ................................ 1548

III.PROSECUTORIAL ELECTION IN THE STATES ................................ 1557

* Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr., Distinguished Professor

of Law and Director of the Prosecutors and Politics Project, University of North Carolina School

of Law.

** Ashford Fellow and Ph.D. Candidate, Department of Gov ernment, Harvard University.

J.D., Yale Law School. This manuscript greatly benefitted from the comments of Shima Baradaran

Baughman, Jack Chin, Beth Colgan, Don Dripps, Cynthia Godsoe, Russell Gold, Bruce Green,

Eve Hanan, Irene Joe, Peter Joy, Sam Kamin, Anders Kaye, Richard Leo, Ben Levin, Kate Levine,

Cortney Lollar, Justin Marceau, Marc Meredith, Janet Moore, Justin Murray, Lauren Ouiz el, Ellen

Podgor, Anna Roberts, Addie Rolnick, Rebecca Roiphe, Maybell Romero, Jessica Roth, Jocelyn

Simonson, David Schleicher, Anne Traum, and Ron Wright. This research was made possible by

a generous gift from the Vital Projects Fund, Inc. The data to reproduce this analysis is available

at: Carissa Hessick & Michael Morse, Local Prosecutor Elections, 2012–2017, DATAVERSE, https://

dataverse.unc.edu/dataset.xhtml?persistentId=doi:10.15139/S3/ILI4LC [https://perma.cc/56

ME-8SC4].

1538 IOWA LAW REVIEW [Vol. 105:1537

A.DATA .................................................................................... 1558

B.RESULTS ............................................................................... 1561

1.Electoral Results .......................................................... 1561

2.Tenure and Resignation ............................................. 1567

IV.PROSECUTORIAL ELECTIONS, POPULATION, AND THE SUPPLY

OF LAWYERS ................................................................................. 1570

A.CONTESTATION RATES AND POPULATION ............................... 1571

B.THE SUPPLY PROBLEM HYPOTHESIS ....................................... 1574

C.POSSIBLE SOLUTIONS TO THE SUPPLY PROBLEM ...................... 1578

V.CONCLUSION .............................................................................. 1587

APPENDIX .................................................................................... 1589

I. INTRODUCTION

The United States imprisons its citizens at such a remarkable rate

––unprecedented in American history and without international parallel

––that critics have characterized the country as a carceral state.1 Despite its

size, the “carceral state has been a largely invisible feature” of American

politics: Much of the rise of mass incarceration over the last five decades has

happened without significant public debate.2 This is in part because there is

no single, national criminal justice system, but rather a patchwork of local

systems. That patchwork frustrates efforts not only at coordination but also

observation.3

Within the past decade or so, though, a dedicated group of academics

has offered multiple, sometimes competing, lenses to understand why we

experienced surging incarceration rates.4 These include racial control,5 racial

1. See, e.g., MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF MASS

INCARCERATION IN AMERICA 1 (2006) (introducing the term and offering a comparative analysis

of the U.S. incarceration rate at the time of 714 per 100,000 people).

2. Id. at 19.

3. See JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION—AND HOW TO

ACHIEVE REAL REFORM 13 (2017) (“A major barrier to reform . . . is the fractured nature of our

criminal justice system.”).

4. For background on incarceration rates, particularly how growt h in the federal and state

prison populations, local jail populations, and probation and parole populations began in the

1970s but vastly accelerated in the 1980s and 1990s, see NAT’L RESEARCH COUNCIL, THE GROWTH

OF INCARCERATION IN THE UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES 39 fig.2-3, 41

fig.2-4, 43 fig.2-5 (Jeremy Travis et al. eds., 2014).

5. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE

OF COLORBLINDNESS (2010).

2020] PICKING PROSECUTORS 1539

backlash,6 racial wedges,7 racial liberalism,8 intra-class black politics,9

“pendulum justice,”10 political economic crises,11 a punitive public,12 and a

unique institutional landscape that fundamentally transformed modern social

movements.13 This work is nothing less than crucial. But nearly all prominent

work on the politics of mass incarceration has focused, at least primarily, on a

national story.14 As a result, the local prosecutor has been largely absent from

the project of explaining why we experienced surging incarceration rates and

how to unwind it.15

Our Article contributes to a small, but growing literature that

acknowledges the centrality of local prosecutors to crimi nal justice

outcomes.16 The reality has always been that the vast majority of people under

criminal supervision are arrested by the local police and charged by the

thousands of local prosecutors who dot the United States.17 William Stuntz

6. See, e.g., MICHAEL TONRY, PUNISHING RACE: A CONTINUING AMERICAN DILEMMA (2011).

7. See Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 STUD.

AM. POL. DEV. 230 (2007).

8. See, e.g., NAOMI MURAKAWA, THE FIRST CIVIL RIGHT: HOW LIBERALS BUILT PRISON

AMERICA (2014).

9. See, e.g., JAMES FORMAN JR., LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK

AMERICA (2017).

10. See WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE (2011).

11. See, e.g., RUTH WILSON GILMORE, GOLDEN GULAG : PRISONS, SURPLUS, CRISIS, AND

OPPOSITION IN GLOBALIZING CALIFORNIA (2007).

12. See, e.g., PETER K. ENNS, INCARCERATION NATION: HOW THE UNITED STATES BECAME THE

MOST PUNITIVE DEMOCRACY IN THE WORLD (2016).

13. See, e.g., GOTTSCHALK, supra note 1.

14. The lack of attention to the local dimension of mass incarceration is likely due to a lack

of available data. Most of the data presented on the criminal justice system is at the national or

state level. This is one reason why experts convened by the National Acad emy of Science have

suggested that a bold research agenda for the field requires “significant new data collection.” See

NAT’L RESEARCH COUNCIL, supra note 4, at 431.

15. For example, prosecutors play only a cursory role in the recent tome by exp erts

convened by the National Academy of Science. See id. at 336, 343, 347, 356 (mentioning

prosecutors only a handful of times in this over 400-page report) ; see also PFAFF, supra note 3, at

127–28, 127 n.3 (making this observation as well).

16. See, e.g., EMILY BAZELON, CHARGED: THE NEW MO VEMENT TO TRANSFORM AMERICAN

PROSECUTION AND END MASS INCARCERATION (2019); PFAFF, supra note 3 ; STUNTZ, supra note 10;

Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. REV. 959

(2009); Angela J. Davis, The Progressive Prosecutor: An Imperative for Criminal Justice Reform, 87

FORDHAM L. REV. ONLINE 8 (2018); Adam M. Gershowitz, Consolidating Local Criminal Justice:

Should Prosecutors Control the Jails?, 51 WAKE FOREST L. REV. 677 (2016); Erik Luna & Marianne

Wade, Prosecutors as Judges, 67 WASH. & LEE L. REV. 1413 (2010). But cf. Jeffrey Bellin, Reassessing

Prosecutorial Power Through the Lens of Mass Incarceration, 116 MICH. L. REV. 835, 845 (2018)

(“Contrary to the consensus, prosecutors are not the most powerful actors in the criminal justice

system.”).

17. See, e.g., E. ANN CARSON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,

PRISONERS IN 2016, at 3 tbl.1 (2018), available at https://www.bjs.gov/content/pub/pdf/

p16.pdf [https://perma.cc/MBW2-E2FH] (comparing the number of prisoners under the

jurisdiction of state and federal correctional authorities for the period 2006 to 2016); PATRICK