Understanding uncontested prosecutor elections

• Author: Carissa Byrne Hessick, Sarah Treul, and Alexander Love
• Position: Ransdell Distinguished Professor of Law and Director of the Prosecutors and Politics Project, University of North Carolina School of Law/Bowman and Gordon Gray Term Professor of Political Science, University of North Carolina at Chapel Hill/Ph.D. student in the department of Political Science, University of North Carolina at Chapel Hill
• Pages: 31-77

UNDERSTANDING UNCONTESTED PROSECUTOR ELECTIONS

Carissa Byrne Hessick,* Sarah Treul,** and Alexander Love***

ABSTRACT

Prosecutors are very powerful players in the criminal justice system. One of

the few checks on their power is their periodic obligation to stand for election.

But very few prosecutor elections are contested, and even fewer are competitive.

As a result, voters are not able to hold prosecutors accountable for their deci-

sions. The problem with uncontested elections has been widely recognized, but

little understood. The legal literature has lamented the lack of choice for voters,

but any suggested solutions have been based on only anecdote or simple descrip-

tive analyses of election data.

Using a logistic regression analysis, this Article estimates the individual

effects of a number of variables on prosecutor elections. It finds that several fac-

tors that have been previously identified as contributing to an uncontested elec-

tion are not, in fact, what drives uncontested elections for prosecutors. Instead,

the factors with the largest effect are whether an incumbent runs and the popula-

tion of the district. It also identifies two features of state election law that contrib-

ute to the dearth of contested elections. The Article concludes by noting that

these factors suggest specific policy changes that could help to increase the num-

ber of contested and competitive elections—thus ensuring that voters can help

guide important criminal justice decisions in their communities.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

I. PROSECUTORS AND THEIR ELECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . 36

A. The Power of Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

B. The Election of Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . 44

II. LESSONS FROM THE POLITICAL SCIENCE LITERATURE. . . . . . . . . . . . . . . 47

A. Brief Note on the Incumbency Advantage . . . . . . . . . . . . . . . . 48

B. Uncontested Elections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

C. Competitive Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

III. A STATISTICAL ANALYSIS OF PROSECUTOR ELECTIONS. . . . . . . . . . . . . . 56

A. Identifying Relevant Variables. . . . . . . . . . . . . . . . . . . . . . . . 56

1. Open Seats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

2. Partisan Mismatch and General Elections . . . . . . . . . . . . 57

* Ransdell Distinguished Professor of Law and Director of the Prosecutors and Politics Project, University of

North Carolina School of Law. © 2023, Carissa Byrne Hessick, Sarah Treul, and Alexander Love.

** Bowman and Gordon Gray Term Professor of Political Science, University of North Carolina at Chapel

Hill.

*** Ph.D. student in the department of Political Science, University of North Carolina at Chapel Hill.

31

3. Partisan Match and Primary Elections . . . . . . . . . . . . . . . 57

4. Length of Incumbent Tenure. . . . . . . . . . . . . . . . . . . . . . 58

5. “Professionalization” of the Office and Attractiveness of

Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

6. Supply of Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

7. Differences in Election Law . . . . . . . . . . . . . . . . . . . . . . 59

8. Crime and Prison Admission Trends . . . . . . . . . . . . . . . . 60

B. Description of Data and Summary Statistics . . . . . . . . . . . . . . 61

C. Lawyer Supply Hypothesis . . . . . . . . . . . . . . . . . . . . . . . . . . 69

D. Crime and Prison Admission Trends . . . . . . . . . . . . . . . . . . . 70

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

APPENDIX: SUPPLEMENTARY ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

INTRODUCTION

The United States is the only country in the world that elects its prosecutors.

1

Whether elections are an optimal method for selecting prosecutors has been a mat-

ter of some debate.

2

The reason for that debate is that we want our prosecutors to

be both accountable and independent. In other words, we want them to be answer-

able to the public for their decisions, while at the same time able to exercise their

professional judgment free from political pressure.

These two goals are in tension. Electing prosecutors ensures that they are ac-

countable, but it limits their independence. In contrast, appointing prosecutors

increases independence, but it does so at the expense of accountability.

Regardless, whether elections or appointments are the best methods for selecting

prosecutors, elections in the United States generally fail to capture the accountabil-

ity benefits of elections because so many prosecutor elections are uncontested and

uncompetitive.

3

An uncontested election does not provide citizens with the oppor-

tunity to hold their elected prosecutors accountable because there is no alternative

on the ballot. At the same time, because they continue to face elections, prosecu-

tors are still subject to political pressure. Several social science studies have found

1. DARRYL K. BROWN, FREE MARKET CRIMINAL JUSTICE: HOW DEMOCRACY AND LAISSEZ FAIRE UNDERMINE

THE RULE OF LAW 28 (2016). As Michael Ellis notes, “[t]he Swiss cantons of Geneva, Basel-City, and Tessin

elect judges who have a prosecutorial function, but they are not public prosecutors in the common-law sense of

the office.” Michael J. Ellis, The Origins of the Elected Prosecutor, 121 YALE L.J. 1528, 1530 n.1 (2012).

2. See, e.g., BROWN, supra note 1, at 59; Angela J. Davis, The American Prosecutor: Independence, Power,

and the Threat of Tyranny, 86 IOWA L. REV. 393, 438–43 (2001); Daniel C. Richman, Accounting for

Prosecutors, in PROSECUTORS AND DEMOCRACY: A CROSS-NATIONAL STUDY 40 (Ma

´ximo Langer & David Alan

Sklansky eds., 2017); David Alan Sklansky, Unpacking the Relationship between Prosecutors and Democracy in

the United States, in PROSECUTORS AND DEMOCRACY: A CROSS-NATIONAL STUDY 276 (Ma

´ximo Langer & David

Alan Sklansky eds., 2017); Michael Tonry, Prosecutors and Politics in Comparative Perspective, in

PROSECUTORS AND POLITICS: A COMPARATIVE PERSPECTIVE 27–28 (Michael Tonry ed., 2012).

3. Carissa Byrne Hessick & Michael Morse, Picking Prosecutors, 105 IOWA L. REV. 1537, 1570–71 (2020)

(comparing the costs and benefits of electing and appointing prosecutors and concluding that “elections without

contestation are the worst of both worlds”).

32 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:31

that prosecutors change their behavior in election years

4

See Siddhartha Bandyopadhyay & Bryan C. McCannon, The Effect of the Election of Prosecutors on

Criminal Trials, 161 PUB. CHOICE 141, 142 (2014); Andrew Dyke, Electoral Cycles in the Administration of

Criminal Justice, 133 PUB. CHOICE 417, 419 (2007); Bryan C. McCannon, Debundling Accountability:

Prosecutor and Public Defender Elections in Florida 2–3 (Feb. 3, 2018) (unpublished manuscript), https://papers.

ssrn.com/sol3/papers.cfm?abstract_id=3204623; Melissa R. Nadel, Samuel J. A. Scaggs & William D. Bales,

Politics in Punishment: The Effect of the State Attorney Election Cycle on Conviction and Sentencing Outcomes

in Florida, 42 AM. J. CRIM. JUST. 845, 847 (2017). There are, however, studies that do not identify an election

effect on prosecutorial behavior. See Carissa Byrne Hessick, Prosecutors and Voters, in THE OXFORD

HANDBOOK OF PROSECUTORS AND PROSECUTION 399, 404 (Ronald F. Wright, Kay L. Levine & Russell M. Gold,

eds., 2021) for an extended discussion of the literature.

—suggesting that political

pressure overcomes their professional judgment—and at least one study has found

that these election-year changes affect prosecutors irrespective of whether they are

facing a challenger in their elections.

5

In other words, uncontested elections may

be the worst of both worlds—prosecutors are neither held accountable nor are they

independent.

The prevalence of uncontested prosecutor elections has been a topic of concern

for several years.

6

But because comprehensive data about prosecutor elections is

4.

5. See Siddhartha Bandyopadhyay & Bryan C. McCannon, Re-election Concerns and the Failure of Plea

Bargaining, 3 THEORETICAL ECON. LETTERS 40, 40 (2013). But see Melissa R. Nadel et al., supra note 4, at 859

(finding a difference between prosecutor behavior in face of contested versus uncontested elections in some

cases).

6. See, e.g., JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSE OF MASS INCARCERATION AND HOW TO ACHIEVE

REAL REFORM 134 (2017) (“[B]y and large, district attorneys are reelected with unfailing regularity. It’s hard to

view elections as a way to systematically regulate prosecutorial behavior.”); id. at 139 (“Almost all prosecutors

are elected, but those elections often seem like foregone conclusions. Incumbents rarely face challengers, and

when they do they usually win.”); Shima Baradaran Baughman, Subconstitutional Checks, 92 NOTRE DAME L.

REV. 1071, 1103 (2017) (“[I]ncumbent prosecutors rarely face real accountability. . . . [N]inety-five percent of

the incumbents who want to return to prosecutorial office are reelected.” (footnotes omitted)); Stephanos Bibas,

Restoring Democratic Moral Judgment within Bureaucratic Criminal Justice, 111 NW. U. L. REV. 1677, 1690

(2017) (“Prosecutorial elections are notoriously uncompetitive . . . .”); Stephanos Bibas & William W. Burke-

White, International Idealism Meets Domestic-Criminal-Procedure Realism, 59 DUKE L.J. 637, 660 (2010)

(“[Prosecutor] races are distorted by huge incumbency advantages and driven by occasional scandals and

unrepresentative, high-profile celebrity trials.”); R. Michael Cassidy, Character and Context: What Virtue

Theory Can Teach Us about a Prosecutor’s Ethical Duty to “Seek Justice,” 82 NOTRE DAME L. REV. 635, 657

(2006) (“It is exceptionally rare in this country for an incumbent prosecutor to be voted out of office.”); Roger A.

Fairfax, Jr., Prosecutorial Nullification, 52 B.C. L. REV. 1243, 1269 (2011) (“Prosecutorial reelection rates are

high and the vast majority of incumbents go unchallenged.”); Eric S. Fish, Against Adversary Prosecution, 103

IOWA L. REV. 1419, 1478 (2018) (“Several studies suggest that prosecutorial elections are low-information

affairs in which incumbency is an overwhelming advantage (indeed, many are uncontested), and in which

conviction rates and other metrics of adversarial success bear little apparent relationship to electoral success.”);

Janet C. Hoeffel & Stephen I. Singer, Elections, Power, and Local Control: Reining in Chief Prosecutors and

Sheriffs, 15 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 319, 323 (2015) (“Unlike sitting mayors, governors,

and state and local legislators, the vast majority of incumbent prosecutors and sheriffs run unopposed.”); Bidish

Sarma, Using Deterrence Theory to Promote Prosecutorial Accountability, 21 LEWIS & CLARK L. REV. 573, 592

(2017) (“Prosecutorial elections are historically low-information, low-turnout affairs. Often times, there are no

opponents to vote for; even when other candidates materialize, incumbents win so often that ‘retention

rates . . . would make a candidate for the Supreme Soviet blush.’” (footnotes omitted) (quoting Ronald F. Wright

& Marc L. Miller, The Worldwide Accountability Deficit for Prosecutors, 67 WASH. & LEE L. REV. 1587, 1606

(2010))); Note, Restoring Legitimacy: The Grand Jury as the Prosecutor’s Administrative Agency, 130 HARV. L.

REV. 1205, 1220 (2017) (“[I]ncumbent prosecutors win reelection the vast majority of the time . . . .”).

2023] UNDERSTANDING UNCONTESTED PROSECUTOR ELECTIONS 33