America’s Prosecutors Were Supposed to Be Accountable to Voters. What Went Wrong?
Cyrus 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.
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Vance’s comfortable position is familiar to him. In his last bid for re-election, 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 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 re-election.
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 D.A. is? Even in New York, chockfull 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 D.A.s 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 D.A. 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 D.A.’s office that they attacked on the campaign trail. On other occasions, a lawyer mounts a challenge from inside the D.A.’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.)