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District Attorney elections—unique to American jurisdictions and undoubtedly problematic—are a long-running and entrenched reality in most parts of our country. As prosecutors have come under increasing scrutiny in recent years, largely because of the unmitigated power they wield, advocates of criminal justice reform have succeeded in turning these elections into meaningful contests with major policy differences at issue. As voters recognize the salience of DA elections, and more money pours in, there is a welcome and burgeoning interest in the ethical implications of these campaigns.

In an earlier post, we described the changing nature of District Attorney elections.

Even before the November [2016] elections rolled around, several high-profile incumbent prosecutors lost their bids for re-election at the primary stage. . . . Jordan Smith at The Intercept pointed out in October that these results reflect something bigger happening around the country:

These elections are part of a small but growing trend in district attorney races across the country in which voters are eschewing the traditional tough-on-crime narrative that has dominated prosecutor elections for decades in favor of more reform-minded candidates whose platforms include holding police more accountable and taking more seriously cases of wrongful conviction.

Several national media outlets have covered the growing trend.

Alongside the trend, journalists and concerned citizens have realized that elections are not only about voting; they’re also opportunities for money to exert a corrupting influence. They have uncovered information about campaign contributions to incumbent DAs, surfacing serious questions about favoritism and prosecutorial integrity. Consider, for example, the controversy that erupted around Cy Vance and his failure to prosecute Harvey Weinstein and President Trump’s son and daughter. Lawyers for those individuals made substantial contributions to Vance’s campaign coffers. Or, more recently, The Intercept revealed that embattled Sacramento County DA Anne Schubert received over $400,000 from law enforcement groups:

All the while, Schubert’s political campaigns have benefitted from the largesse of law enforcement unions and associations. According to an analysis by The Intercept, about one-third of the contributions she received across her two campaigns to be Sacramento County’s district attorney—one of which is currently ongoing—came from law enforcement sources or those close to law enforcement.

Needless to say, stories like these raise real concerns about how campaign contributions influence prosecutorial decisionmaking. With a greater public emphasis on prosecutors, academic leaders are helping bring light to a fairly neglected area of campaign finance. At the University of North Carolina School of Law, there’s a new Prosecutors and Politics Project, led by Professor Carissa Hessick, that is compiling data about prosecutorial elections and campaigns around the country. Other institutions have been working on the issue as well. Cy Vance, the Manhattan DA, recently asked the Center for the Advancement of Public Integrity at Columbia Law School to review his campaign fundraising practices. The public document the Center produced provides some helpful initial guidelines for candidates, and could be used to gauge how prosecutors in other places are navigating ethical questions about their campaign financing. Key recommendations include imposing voluntary limits on the size of contributions and blind fundraising practices.

Campaign ethics and prosecutorial ethics are not the same thing, of course, but the test of running an ethical campaign may be a good proxy for predicting whether a candidate will lead an ethical office. And, organizations—whether they are academic institutions or media groups—that bring attention to campaign contributors do a great service to the electorate, which has a vested interest in knowing who may be trying to build or exert influence. Prosecutors now surely are on notice that they need to get their houses in order. DA elections are not the backwater they once were just a few years ago. Incumbents especially must be wary, not only because of the more nuanced understanding of prosecutors that voters will bring to the ballot box, but also because the evidence or appearance of impropriety is sure to come to light.

While electoral accountability is an important part of the wider push for enhanced prosecutorial accountability, at The Open File we still harbor doubts about the wisdom of electing prosecutors. Nonetheless, the reality is the reality, and should not be ignored. (Elections can bring unbelievably positive change.) Our central message, however, will continue to be about prosecutorial power and misconduct. We share here the wise words that Juleyka Lantigua-Williams wrote in The Atlantic two years ago:

A consensus is building around the need to seriously rethink the role of the prosecutor in the administration of justice. Power dynamics are unbalanced, sentencing guidelines are outdated, and old-fashioned human biases persist. And prosecutors—singularly independent agents in a justice system roiling in turmoil—have been facing growing criticism and public distrust for some time, and that disapproval is about to hit a tipping point. It’s time to curtail the power long held by these officers of the court as they promote justice, ensure fairness, and enhance public safety.

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