by Rory Fleming
There is so much we don’t know about local prosecutors’ offices. Despite handling the vast majority of US criminal cases, virtually none of them collect, let alone publicize, data on charging practices, plea bargains and sentencing. And while it is commonly known that many elected prosecutors rarely face competitive elections, the extent of this lack of competition has not been comprehensively understood.
A remarkable new report from the Prosecutors and Politics Center at the University of North Carolina School of Law, headed by Professor Carissa Byrne Hessick, promises to change the way we understand prosecutors’ incumbency advantage.
Prof. Hessick and her team processed an immense amount of data, including the most recent prosecutor election results for the 2,318 districts in the 45 states that elect local prosecutors.
They found that the majority of these elections for counties with a population of less than one million have a single, unopposed candidate—while counties with over one million people generally see a contested election.
In addition, an incumbent prosecutor only gets a challenger approximately 25 percent of the time—whereas when the prior chief prosecutor opted not to run again, there were two or more candidates almost half the time.
The report does not seek to describe why this might be the case, stating “Why population and the presence of an incumbent candidate might affect the contestation rate of an election is not immediately obvious.”
Researchers are rightly cautious, but some likely reasons do present themselves. For example, the report showed a profound lack of competition in rural districts: 74 percent of DAs in districts with fewer than 100,000 residents run unopposed, but that number shrinks to 63 percent for counties with between 100,000 and 250,000 residents.
That tracks with the fact that there is a dearth of rural lawyers to begin with. A 2014 article from the American Bar Association’s magazine discusses how states like South Dakota actually started paying lawyers to move out to rural districts because lawyers tend to want to live in urban centers. This shortfall meant people in rural areas having to trek to the nearest large town or city to obtain legal services. Fewer lawyers in a district means a smaller pool of lawyers who are potentially willing to become politicians.
The reasons people do not want to run for DA are, generally speaking, a bit more opaque (although I’ve previously offered a few). Yet candidates’ own stories help to shine light on them.
Back in 2012, Mary Snyder ran for chief prosecutor in Wyandot County, Ohio—a county of about 20,000 people. In a conversation on Twitter, she agreed that retaliation is a serious issue for people willing to confront the local courthouse status quo. She recounted that, after her loss, “I was not only persona non grata in the courthouse, but large segments of the county. By 2014, I no longer worked there. By 2015, I no longer lived there.”
After setting aside all the usual reasons people do not want to become politicians—like handing over your private life on a buffet platter for opposition researchers to rummage through—it is paramount to understand that DA candidates are lawyers first.
The lawyers most unhappy with the status quo of a DA office are generally going to be those who have witnessed local prosecutors at their most unethical and cruel: area criminal defense lawyers. This is a double-edged sword, because while it might be motivation for a challenge, practicing lawyers also have to worry about potential retaliation against their legal practice and clients (assuming they want to go back into practice—and not move to a different county—if they lose).
Prosecutors’ penchant for trying to sabotage fellow members of their profession who dare stand in their way should not surprise us: Many current and former DAs have acted like the position is their birthright.
For instance, in the 2018 Berkshire, Massachusetts Democratic primary, progressive insurgent candidate Andrea Harrington defeated Paul Caccaviello, who had been handed the interim DA seat by his former boss and mentor David Capeless. Refusing to admit defeat, Caccaviello then mounted a write-in campaign to undermine the result. (He still lost.)
Back in 2012, former Suffolk County, New York, District Attorney Tom Spota was so upset about the prospect of abiding by his county term limits law that he sued the county. Shockingly, Spota won. And Manhattan DA Cy Vance, the president of the District Attorneys Association of New York, then praised the decision on alleged public safety grounds.
Just a few years later, Spota found himself facing a corruption indictment. Yet the Suffolk County DA still initially refused to resign. In December 2019, former DA Spota was convicted of four federal counts, including obstruction of justice and witness tampering.
Cases like these demonstrate how tenaciously prosecutors grip power, and how willing they are to hit back when that power is threatened. In smaller jurisdictions, where everyone knows everyone else, you can infer the intimidating level of personal conflict likely to be sparked by running against a powerful incumbent—and why few challengers are brave or foolhardy enough to put everything on the line.
If this were not politics but marketplace competition between corporations, there would probably be a law against this level of unfairness.
State bars that license attorneys should do their own studies of experiences of retaliation against failed prosecutor candidates. If there is a systemic problem, then they should draft a new ethics rule, forbidding district attorneys and their line prosecutors from mistreating or otherwise retaliating against defense lawyers who tried to run for DA or their clients.
Until something is in writing and enforceable, the problem is likely to persist. And members of the public will continue to be denied democratic scrutiny over the prosecutors who have inordinate amounts of control over their lives.