America's Prosecutors Were Supposed to Be Accountable to Voters. What Went Wrong?

By Evan Hughes, Politico

06 November 17

New York’s Cyrus Vance is just part of a much larger problem.

yrus Vance Jr. is suddenly under fire. It began in October, when the New Yorker reported that in 2012 the Manhattan district attorney declined to charge Ivanka Trump and Donald Trump Jr. with fraud—even though investigators in his office believed the Trumps had lied in marketing materials for Trump SoHo, their hotel and condo project in lower Manhattan. Within a week, the New York Times and the New Yorker revealed that in 2015, Vance chose not to prosecute another powerful and wealthy figure, Harvey Weinstein, despite an audio recording in which the Hollywood producer appeared to admit to sexual assault. Furthermore, Vance accepted campaign cash from a lawyer to the Trumps and from a Weinstein attorney not long after dropping each case.

The revelations have sparked an uproar, and Vance has returned the Trump-related money and stopped accepting donations in response to the recent scrutiny. But anyone looking to channel outrage into backing Vance’s opponent on Election Day this week has discovered a hitch: Vance is the only name on the ballot. A longtime critic, Peter Gleason, has jumped in as a write-in challenger, as has Marc Fliedner, a reform-minded figure—but with the vote fast approaching, they face a tough climb, to say the least.

Vance’s comfortable position is familiar to him. In his last bid for reelection, in 2013, he ran unopposed in the Democratic primary and, in deep-blue Manhattan, won over 84 percent of the vote in the general election. In all likelihood, he’ll win again on Tuesday.

Vance’s questionable decisions are significant in themselves, but they also highlight a much bigger issue: Lead prosecutors in the United States have an accountability problem. Operating at the local level, these officials—typically called district attorneys—exercise remarkable sway over the country’s criminal-justice agenda. There are approximately 2,500 of them nationwide, and the vast majority are elected. And yet, despite the discretion these officials have and the clout they wield, few people know anything about them, especially outside the major cities—and it is stunningly common that they run unopposed or cruise to reelection.

With this kind of job security, perhaps the question for Vance—and the hundreds of other prosecutors like him—is not so much why to accept an ethically iffy donation that you hardly need to win, but rather, why not?

Local prosecutors dominate the criminal justice system. Federal courts might get more press, but the vast majority of criminal cases, including felonies, are tried locally, under state law. Approximately 95 percent of felony convictions are the result of a guilty plea, which means that in these cases, the prosecutor, not a judge or jury, is determining the defendant’s fate, including the sentence. (Research on exonerations suggests that innocent defendants may be pleading guilty at a disturbing rate, frequently so they can go home from pre-trial detention.) And a prosecutor who pursues a charge that carries a mandatory minimum takes sentencing entirely out of a judge’s hands, even if the case goes to trial.

District attorneys also have the discretion to drop a case even with clear evidence of guilt, but more often, eager to show they’re being tough on criminals, they push for convictions and press for the highest bail and the maximum charges. The legal scholar John Pfaff, of Fordham University, has marshaled data to argue that decisions by prosecutors—especially aggressive charging that often turns potential misdemeanors into felonies—is the main driver of mass incarceration. Federal drug policy, he maintains, pales in comparison.

And yet, for all this power, do you know who your DA is? Even in New York, chock-full of media outlets and crime coverage, how many voters could name the city’s five district attorneys?

The problem is not just name recognition. “I think most citizens don’t have any idea how their prosecutors do their jobs,” says Ronald F. Wright, a professor of criminal law at Wake Forest University—even if they are informed enough about local politics to, say, name their state senator. Some people, he says, picture a trial lawyer standing up in court to grill the bad guy. They don’t grasp that district attorney is essentially a policy position. The job involves, for instance, deciding whether to go after low-level nonviolent offenses, such as drug possession; whether to target white-collar crimes; how to treat juvenile offenders; whether to seek the death penalty if the state permits it; and whether to aim to cut the inmate population or to jail as many criminals as possible. It’s an enormous portfolio—with authority so great that Rashad Robinson, the executive director of the racial-justice advocacy group Color of Change, says President Barack Obama once told him that DAs in many respects had more power than the president to effect change in the U.S. justice system.

Elected prosecutors might see a need to get out and explain their legal vision to voters if they ran in contested races, but, like Vance, they mostly do nothing of the kind. In 2016, according to research by Color of Change, 84 percent of elected prosecutors ran unopposed in the general election. That is not a typo. In the rare race where an incumbent faced a contest, the challengers won only 18 percent of the time.

Even Robert McCulloch, the St. Louis County prosecuting attorney who faced heavy criticism throughout the unrest in Ferguson, ran unopposed a few months after the Michael Brown shooting. As with Vance, by the time McCulloch was thrust into the spotlight, it was too late to mount a real run against him; up until then, apparently, nobody thought they had a chance. McCulloch has declared that he will seek an eighth term next year.

Part of what suppresses upstart candidates is the chutzpah it can require to go after the DA in a long-shot race, precisely because he is so powerful. Challengers tend to come from the local pool of lawyers with criminal experience. That means they are often defense attorneys, and should they be defeated, for years they will be constantly facing off against the DA ’s office that they attacked on the campaign trail. On other occasions, a lawyer mounts a challenge from inside the DA’s office, which is, needless to say, a bold career move. As the Vance example shows, the incumbent often enjoys a significant fundraising advantage, too; establishment figures, including opposing counsel, have an incentive to donate to the incumbent to maintain good relations or curry favor.

In major urban areas, where crime policy can have the biggest impact, the incumbent’s advantage can be more extreme, rather than less. Because big cities tend to be heavily Democratic, the true races there are the primaries, where fewer people turn out to vote than in general elections, especially if no national races are on the ballot. Vance’s predecessor, Robert Morgenthau, held office for 34 years, running unopposed for a 20-year stretch, and retired at 85 years old in 2009. (E. Michael McCann, of Milwaukee County, and Henry Wade of Dallas, both big-city Democrats, served even longer.)

Vance didn’t even dare challenge an incumbent. He announced he would run only if Morgenthau announced his retirement. When Morgenthau did so, the elderly man endorsed Vance, as did all three New York City dailies. Vance won handily.

The lack of true contests and the potentially corrupting influence of campaign money both raise a question: Why is district attorney an elected office to begin with? It wasn’t always this way, as Michael J. Ellis documents in a historical study published in the Yale Law Journal in 2012. In the mid-19th century, the U.S. began gradually moving from an appointment system toward electing prosecutors. (Today, prosecutors are elected in 45 states.) The idea, according to Ellis, was to keep politicians from installing their friends in the job. But it is worth questioning whether our current system is any better.

In every other country in the world, according to Ellis, lead prosecutors are appointed instead. That way, they have bosses who review their decisions. If a DA in the U.S. declines to charge a major case, the public can remain in the dark. We might never have learned about Weinstein’s near-indictment, and for all we know President Donald Trump or Obama might have narrowly avoided arrest at some point in their lives. If a prosecutor answered to a boss such as a governor or a state attorney general, that person would likely expect to be informed of such a thing.

The system of appointing prosecutors is less democratic, however, in the sense that the people cannot remove a prosecutor who enjoys the support of his boss. We recently saw the reverse issue in action: At the federal level, where U.S. attorneys are appointed and can undergo full turnover after an election, Trump exercised his power to fire Preet Bharara and other U.S. attorneys at a time when the president’s 2016 campaign was under federal investigation. In New Jersey, appointed prosecutors who owed their jobs in part to Governor Chris Christie became involved in the Bridgegate case, provoking controversy.

Still, elections mean that plays for popularity or money can affect a DA’s legal judgment. When prosecutors do give a thought to voters, the strategies are pretty simple. One obvious rule, Wright says, is that if a case is going to be on the front page, you want to win it. This can mean, perversely, that a DA might dismiss a big case rather than risk a stinging loss—it’s less important to succeed than it is to not fail. Some reporting has suggested that when Vance made a quiet decision not to pursue Weinstein in 2015, he was reeling from an earlier sexual assault case, against former IMF Director Dominique Strauss-Kahn, that had fallen apart in highly visible fashion.

Another guideline, historically, is that an elected prosecutor wants to be tough on crime, or at least seen that way. Skyrocketing crime can be forgiven—Morgenthau ran unchallenged during the period of his city’s all-time worst murder rates—so long as the DA is not seen as soft in his approach and does not take mercy on a criminal who later commits another major offense, à la the Willie Horton case. The people who do turn out for elections tend to be whiter and more educated than the electorate as a whole. A voter with that profile may be more likely to value safety above all, rather than, say, the rights of defendants. According to Wright, some voters want a DA to tell them, “Don’t worry, you’re safe with me. I’ll be your attack dog.”

Recently, though, we have seen signs that the prosecutor’s playbook might be changing, at least in some places. With high-profile police shootings giving rise to the Black Lives Matter movement, activists seized on anger over charging decisions and directed it to rallying voters, with some real success. A number of elected prosecutors who were perceived as too cozy with police and too draconian with civilians have been defeated, including in major districts. The winning challengers have been more reform-minded, more likely to cite Michelle Alexander’s The New Jim Crow on the campaign trail.

After the uproar over the Laquan McDonald police shooting, in which Cook County State’s Attorney Anita Alvarez failed to indict anyone for over a year, angry constituents swarmed to support Kim Foxx, who grew up in public housing. In 2016, Foxx unseated Alvarez in a landslide. And in Houston, Kim Ogg ousted Devon Anderson as DA of Harris County, the most populous in Texas, after Anderson jailed a rape victim to ensure she would testify. Next door to McCulloch’s district, the city of St. Louis elected its first black lead prosecutor, Kim Gardner. (Nationwide, approximately 95 percent of elected prosecutors are white, and about 80 percent are male.) In smaller districts, activists have discovered that the upside of poor turnout and a base-line apathy is that tapping donors and picking up a few thousand votes can swing an election.

Meanwhile, major players on the national political scene have begun coalescing around the view that the most effective way to change the criminal justice system may be from the bottom rather than the top. The ACLU has redirected significant resources from fighting on its typical battleground—the courts—to mobilizing voters in local prosecutor elections. The liberal megadonor George Soros is pursuing essentially the same strategy. But of course, more competitive races aren’t necessarily all going to swing in one direction. Big-league donors such as the Mercers might well up their game to combat Soros and try to elect officials more reminiscent of Jeff Sessions or Sheriff Joe Arpaio.

The recent wave of successful challenges hasn’t come to New York yet, but the furor over Vance may be the spark needed for a contested and competitive race next time. And just maybe, the widespread anger over the fact that nobody took him on until it was likely too late will spur more change across the country.