Should Prosecutors still be elected?

Does politics have any place in the criminal justice system?

For several years, I've held the opinion that judges should be appointed and not elected. I recognize that politics will still a factor, since whoever is in power controls who is appointed. However, as far as I can tell in states that do that, and in the federal system, the judges that are appointed are qualified. You may not like which way they come down on certain issues, but there's no doubt that they are competent and qualified to hold the position. In contrast, there is nothing to ensure that the people elected to judicial positions are qualified, or have any business deciding the fate of another person. Too often those races are decided on a whim. Especially in criminal court races, where few people know who the judges are, or who to vote for. The end result is that they end up voting for somebody who has the best sounding name

 The problem with politics in the criminal justice system is that it can impact the decisions that are made. No one wins an election promising to be "soft on crime." Instead, everyone wants to be "tough on crime," which means locking everyone up, and imposing maximum sentences. The problem is that a maximum sentence is not always appropriate.

I have seen decisions made based on how someone believes it will look, as opposed to what the right decision is.

No judge wants to be the judge who let somebody go with a minimal sentence, or put somoneon on probation, and they go out and do something serious. The flip side of that is that every time you impose a lenient sentence it is subject to being criticized, and that is generally the first area where attacks are made when election time rolls around. The federal government figured that out long ago and decided to appoint judges to remove them from those pressures.

Over the last few years I've now come to the conclusion that the same problems - and the same issues - apply to district attorneys and prosecutors. In fact, the problems are even more pronounced. Look at the ads in any district attorney or prosecutor race anywhere in the country You quickly see that the focus is who is going to be toughest on crime. If the candidate has been in office for any length of time, everything they have done is examined. They are attacked for those cases where someone was not given the maximum, or not dealt with harshly. The focus is not on whether the right decision was made but on whether they were sufficiently tough on crime. Given the attitude of the general public it is understandable, why prosecutors feel pressure to exercise their discretion in a way that shows they are dealing harshly with criminals. That is  what most people think they want - unless it is them or a member of their family being prosecuted. There's a psychological reason for this by the way, but that's beyond the subject of this post.

This is a significant problem because the discretion prosecutors have is enormous. They not only decide which cases to prosecute, they also decide which charges to file. Then, when charges are filed, they decided what action to take. The end result is that what happens to you is often the result of where you are arrested. Death penalty cases, are perhaps the prime example. There are certain counties in Texas where every capital case is going to be prosecuted as a death penalty case, and others where it rarely happens. That variance is not limited to serious cases. Where I practice, the matter of a few miles can make a difference as to whether you can handle a DWI with something less than a full conviction.

The other issue with prosecutors is that it is often a stepping stone to a higher office, whether it be a judicial position, or a legislative. This was brought out in the recent election here. There were allegations that the handling of the Twin Peaks situation was done in a way to further the district attorney's political ambitions. I don’t know whether it’s true or not, but it was reported that he made the statement that this was going to be his springboard to a higher office. If that's true, It's more than ironic that it turned out to not be the springboard to higher office, but his path to defeat.

The criminal justice system is flawed in many respects. Most of those faults are the result of the fact that it is administered by individuals. No one is immune from the pressures that go with any office, I believe it is now past time to address those issues, and attempt to solve some of those problems by insulating prosecutors and judges from the threats that are imposed by having to face re-election.

 

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 30 years.
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