“The people agree that defendant will not be prosecuted for any similar crimes which are known to the District Attorney’s Office as of on or before February 22, 2016.” That single sentence in a Manhattan District Attorney’s plea agreement ensured that dozens of reports of sexual assault by a New York City doctor from me and others would never be investigated.
I’ve learned first-hand about the finality of prosecutorial discretion, the prevalence of plea bargains and the influence of campaign contributions on criminal justice. Carissa Byrne Hessick, the University of North Carolina School of Law’s Ransdell Distinguished Professor of Law and Director of their Prosecutors and Politics Project, helped me learn more—and talked to Ms. about why District Attorneys (DAs) are widely considered the most powerful people in the criminal justice system and how we can best fight for justice.
How did you first become interested in the relationship between prosecutors and politics?
As a law professor studying criminal sentencing, it became clear that what happens at sentencing is really limited by decisions prosecutors make about charging and bargaining earlier on. Prosecutors’ decisions—which crimes to prioritize, what charges to bring, whether to offer plea bargains—are essentially unreviewable. The argument is that elections hold District Attorneys accountable, but that’s a political solution to a legal question. We have almost no information about what prosecutors do, or how voters learn about those elections, and almost no research on the politics of criminal justice.
We’re stuck, though, if the only way to hold prosecutors accountable is to vote them out of office—they often run unopposed and stay in office for years, or even decades. Do you think we’re seeing more candidates coming forward to challenge incumbents as awareness of the power of prosecutorial discretion rises?
It is hard to say if we are seeing more contestation because we actually don’t have much information about prosecutor elections. It is extremely difficult to find that information; you have to go county by county and often have limited response from local officials.
A 2010 study looking at data from 15 states over several election cycles found that incumbents rarely face challengers. In a study of mine, which will soon be published, we looked at 45 states and found that incumbents rarely face challengers.
While the trend is steady, in terms of number of contested races, we found that races in areas with more people saw more contestation. These races appear to be getting more media coverage: People who live in urban areas are more likely to see their DA on the news. I would like to study media coverage of district attorneys next.
Just recently, there was extensive media coverage of the Democratic primary race for Queens DA. The New York Times and even major politicians like Elizabeth Warren and Alexandria Ocasio-Cortez endorsed Tiffany Cabán’s candidacy. The term “progressive prosecutor” was everywhere. But what exactly does it mean?
This is essentially a question of self-identification that I’m hesitant to define. Some might call Melissa Nelson, a Republican who ran on a platform of transforming prosecutorial culture in Florida, a progressive—because she is doing things like meeting regularly with local media, and pledging not to take campaign contributions from people in her office. Conversely, someone like Cy Vance, the Manhattan DA, calls himself progressive, but many claim that his actions defy that designation.
The term could describe prosecutors who are using their office to do anything other than just prosecuting whatever charges are brought to them. If they are speaking about broader issues or taking on initiatives that don’t traditionally fall into “law and order,” they are progressive. Being open about the fact that they are not using all of the power given to them in the most punitive way they could is essentially progressive.
How have local prosecutors been central to national outcomes like mass incarceration? How are progressive candidates positioning themselves to change that?
There is no doubt that public conversation about the criminal justice system has shifted dramatically in the last decade. Conventional wisdom is that prosecutors are largely responsible for mass incarceration.
There is no denying that prosecutors have a lot of power since they decide what to charge or not to charge. Our new research found that urban prosecutors tend to file charges less often, and require more aggravating circumstances to be present, than do rural prosecutors. The criminal justice system is actually much harsher in rural communities. Even if we couldn’t say that prosecutors led to mass incarceration, we do know that they could do some things differently which could help address the issue. A good question to ask is what they are doing to alleviate it.
One benefit of contested elections is that candidates go on record about their positions. Andrea Harrington, a Massachusetts DA elected in 2018, pledged in her campaign to investigate all past unindicted cases of sexual assault. One city in her district had a rate of rape by population at almost four times the state average. Are you seeing DA candidates pledge to undertake other unique initiatives?
You could read Harrington’s position another way which is that she’ll be tough on sex crimes. “Crack down” promises aren’t particularly unique—we see plenty of examples of pledges to be tough on drugs or petty street crimes. Many people labeled as progressive prosecutors have made promises to crack down on things, but on different things than their predecessors.
Recent election debates in Chicago and St. Louis, for example, reflected the fact that prosecutors had not been nearly proactive enough in response to police use of violence. New prosecutors were elected there who promised to be tough on police violence. Cabán is promising to prosecute wage threat and abusive landlords.
We’ve set up a system where we elect prosecutors and sheriffs. Those are the people we associate with needing to reduce crime, but their tools are really limited. It’s not surprising, then, that we end up having a conversation about how to punish people, as opposed to how to stop the problems from happening in the first place. The left is appealing to our law and order inclinations—it’s just that they’re targeting different crimes.
As elected officials, DAs fundraise for their campaigns, and can accept contributions that cast doubt on their ability to act impartially. Cyrus Vance, Jr., the Manhattan DA, accepted campaign contributions from my perpetrator’s defense attorney, including on the very day his plea was accepted.
You’ve asked if we can trust DAs to assess cases fairly if the defense attorney is a past or potential future donor. One legislative idea to combat this would be to restrict the amount of donations lawyers representing defendants in criminal proceedings can make to these campaigns. Have you seen other campaign finance reform efforts?
People haven’t paid a lot of attention to this issue outside of a few concerning stories that appear to show conflicts of interest.
For example, Los Angeles DA Jackie Lacey received contributions from a murder suspect’s parents and Alameda County DA Nancy O’Malley accepted a contribution from a police officer’s union while her office was investigating a fatal shooting of a pregnant unarmed teen by an officer.
Some DAs have pledged publicly not to take campaign contributions from bail bondsmen or from their own staff. But, as far as I know, there are no rules governing campaign contributions for DAs. States take a disclosure approach for these races since campaign contributions are public. Yet, we’ve adopted different financing schemes for judges such as recusal rules, donation caps, and banning personal solicitations in recognition of their power and need to remain neutral.
Lawmakers wield most of their power in the open. Their most consequential decisions, their votes, are made public. It is the opposite for prosecutors. Their most consequential decisions are only public if they bring charges. Declining to charge and details of plea bargains are often private. The transparency regime isn’t going to be as effective for prosecutors as it is for legislators.
As advocates undertake public awareness campaigns to educate the public about the role of prosecutors and encourage voter participation, what else should the public know or do to get involved?
Learn more about your district attorney. Too often when we find out something they’ve done, we don’t have enough context to evaluate the full picture. If your DA is promising to go after cold cases, ask what issues will then get less priority. It is just as important for DAs to explain what they’re not prioritizing as what they are.
The American people are smart and understand trade-offs, because they have to do it in their own lives all the time. It would be helpful to be reminded that when it comes to law enforcement, there are trade-offs there, too. If we’re going to elect the people who make these decisions, we shouldn’t let them just give us slogans. They should give us detailed policies so we can have informed conversations.