• Jordan Hulseberg

Uneven-Handed Justice: Local Prosecutors Adjust Behavior During Election Years

Updated: May 8


Disbarred former North Carolina prosecutor Mike Nifong who prosecuted three Duke lacrosse players during an election year for crimes they did not commit. https://www.usatoday.com/story/opinion/policing/2019/04/04/criminal-justice-prosecutors-misconduct-policing-the-usa/3336351002/


Local prosecutors bring forward the vast majority of all criminal cases in the United States. Almost all of those local prosecutors are elected at the local level. In the scope of their office, local prosecutors exercise an enormous amount of discretion. This has aptly been referred to as “prosecutorial discretion”; however, the line between prosecutorial discretion and prosecutorial misconduct is a narrow one. Three justices of the Supreme Court even went so far as to call it impossible to identify. During an election year, that discretion is exercised significantly. Prosecutors behave in a dramatically different manner than in non-election years. A study of North Carolinian local prosecutors found that district attorneys pleaded out fewer cases and prosecuted more of them. This quadrennial shift results in uneven justice. In fact, it is best to commit a crime during a non-election year to avoid prosecution. Our moral sensibilities are rightfully offended by this pattern of behavior.

A study of district attorneys’ offices in North Carolina indicated that prosecutors took more cases to trial and dismissed fewer cases during election years relative to non-election years. North Carolina law requires local prosecutors’ offices to report crime statistics for their jurisdiction. Though there are 100-counties in North Carolina, there are only 43 prosecutorial districts. Less populous counties are grouped into one prosecutorial district. Regardless, each district produces its report for the state attorney general. The report includes the number of cases charged, the number of cases brought to trial, the number of cases dismissed, and the number of convictions returned. Of those returned convictions, offices indicate one of three different types of sentences: community, intermediate, and active. “Community” punishments are those that result in community service or, in the case of drug sentences, outpatient rehabilitation. “Intermediate” punishments are those such as house arrest and, in the case of drug sentences, inpatient rehabilitation. Lastly, “active” punishments are those that result in incarceration. This data is further segregated into misdemeanor and felony charges. All told, this self-reported data offers an intimate and accurate view inside each of North Carolina’s district attorneys’ offices.

Further election data is acquired from the North Carolina State Election Board. Data is updated to identify when a particular district attorney is up for reelection. North Carolina staggers district attorneys’ elections such that they occur biennially; however, data in districts is segregated if the incumbent is not facing another candidate. In roughly 22% of general elections, the incumbent candidate faced a challenger, and in roughly 25% of primary elections, the incumbent faced a challenger from the same party. Data was segregated in non-competitive races because the incumbent district attorney may lack the motivation to behave differently. Ultimately, non-competitive races were still examined.

When an incumbent runs for reelection, the data shows a 7.2% increase in jury trial convictions and an 18.3% increase in jury trial convictions relative to total convictions. When facing a challenger, there is an additional 13% increase in jury trial convictions (or a total of 20.2%) and a further 23.7% increase in jury trial convictions relative to total convictions (or a total of 40.9%). During the year before an election, an incumbent who wishes to appear “tough on crime” to scare off a potential challenger will increase the number of jury trial convictions relative to total convictions. This represents a mean increase of 9.7% in the year prior.

Accordingly, a prosecutorial district that has not had an election contest between 1997 and 2009 experienced fewer jury trials. Correspondingly, this indicated a 10.8% decrease in the number of jury trial convictions.

Interestingly, the average sentence does not increase during election years but decreases instead. The number of convictions that are reported as “community” sentences reduces by 10.5%. Similarly, the average maximum sanction reduces by 6.2%. This data suggests that prosecutors are not working harder during election years but are strategically taking more cases that would normally be dismissed. Thus, cases with weaker evidence make their way to trial.

This pattern of behavior is troubling because it does not provide the kind of even-handed justice one may expect in the United States. Political pressure may have its place in prosecution when those pressures are founded in the community’s legitimate interests; however, political pressure originating from prosecutors’ reelection is inherently selfish. It stems from a desire to retain power, and a change in behavior stemming from that kind of motivation is not in the legitimate interest of the community.

I will propose three possible solutions to prosecutors’ altered behavior during election years. Two solutions seek to sever the prosecutor from the source of political pressure: reelection campaigns. The last solution seeks to sever the prosecutor from the source of malfeasance: prosecutorial discretion. These solutions are non-renewable terms, appointment and subsequent reappointment, and an independent charging commission.

The first proposed solution is non-renewable terms for prosecutors. This prevents an incumbent prosecutor from acting in a way that will improve his chance of reelection; however, it does not absolve the prosecutor of any motivation to alter her behavior during an election year. A prosecutor may have sufficient motivation to alter his behavior if she seeks a higher office like state attorney general, governor, or congressperson. Further, non-renewable terms deny the people the right to reelect an effective and well-liked prosecutor. It is also important to note that districts without competitive elections saw a decrease in prosecutions—though it is unclear if this is because prosecutors are becoming ineffective or are simply freed from political influence.

The second proposed solution is appointment. If prosecutors are appointed, they will not conform to the passions of their jurisdictions’ electorates; however, if prosecutors are eligible for reappointment, they may seek to conform to the passion of their appointer. Further, appointment denies the people the right to select their own prosecutor, and local communities may be best at elevating local attorneys to prosecutor.

The final proposed solution is an independent charging commission. The commission would review cases brought forward by the police and subsequently identify which cases to prosecute, plea out, or dismiss. This solution would remove almost all of the prosecutor’s discretion. Even if a prosecutor is up for a renewable term, they would not have the capacity to alter their behavior. The commissioners would be elected and either have non-renewable terms or have their reelections staggered such that a minority would only be up for reelection at any given time. For example, a commission would have six members, each serving a six-year term. Two commissioners would be up for reelection every two years. Although this method would dispel prosecutors’ discretion—the source of the problem at hand—its fault lies in its complexity. To recite the old adage, “Too many cooks spoil the broth.” This method would prevent the prosecutor from choosing how to prosecute—though, to some, this may be the greatest boon of them all. Still, this method may further clutter and delay an already overburdened criminal legal system.

Ultimately, the current system does little to prohibit local prosecutors from altering their behavior during an election year, and there is considerable evidence that prosecutors do exactly that.Though this behavior is not illegal, it is unethical and inherently selfish.It offends the moral sensibilities to think that some defendants are being dragged through a trial, paying attorneys’ fees, and are under considerable stress because their alleged crime coincided with the prosecutor’s election.Some sort of check must be put in place to sever the political influence put on prosecutors.

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