It’s bad enough only 15 percent of us will be passing through the polling station for one of the most important elections of our time. You can imagine that barely a slice of voters know or care about the local prosecutor running for office.
And yet that position commands as much control over our daily lives as does a member of Congress.
Here’s a fun, informal survey to try. Raise your head from your smartphone and ask the person next to you in the Starbucks line: “Hey, do you know who’s running for district attorney this year?” You’ll be lucky to get a few baggy-eyed, caffeine-seeking stares.
That’s dangerously unfortunate, especially for people of color. When we run afoul of the law or unintentionally bump into it, it’s not a senator, a governor or a foul-mouthed polarizing member of Congress who shows up in the courtroom. Instead, it’s a representative from the district or state’s attorney’s office ready to make any number of dramatically life-altering decisions about us or a family member.
They are the gatekeepers to what the Sentencing Project dubs (pdf) “the largest criminal-justice system in the world.” If you are black, you are six times more likely to get trapped in it. If current trends continue, then “one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males—compared to one of every seventeen white males.”
It’s also problematic when people of color are victims of alleged crimes and the perpetrators are white, as we’ve seen in recent years. Since the shooting death of Michael Brown, doubts surround the credibility of St. Louis County State’s Attorney Robert McCullouch in his prosecution of Ferguson, Mo., Police Officer Darren Wilson, and whether he can deliver any justice in what’s being viewed as a botched grand jury probe.
Yet few know that McCullouch is running for re-election this year—unopposed. “As we’ve seen in Ferguson, Mo.; Sanford, Fla.; and all across this nation, the ability of black folks to receive fair treatment from the criminal-justice system often relies heavily on these elected law-enforcement officials,” says ColorOfChange.org Executive Director Rashad Robinson.
That, among other reasons, compelled Urban Institute researchers Brian Elderbroom and Cybele Kotonias to earnestly outline “10 Reasons to Care About Your Local DA Race” in a desperately needed analysis. It’s a bigger, at-your-doorstep kind of deal than Eric Holder’s resignation: The federal attorney general might set the tone for sentencing guidelines, but “state prosecutors play a disproportionately large role in driving mass incarceration,” with “86 percent of the national prison population under the jurisdiction of the states.”
And it’s the local elected prosecutor who always kicks off the process with that first charge and conviction.
Yet we often don’t ask about or know to vote for the people overseeing that system. “In Chicago and the surrounding areas, people of color don’t pay much attention to the local races for sheriff, judges and state prosecutors,” laments Illinois community activist Martin Davis. “But what we’re finding is that these local political races impact more on our daily lives in the community than the federal and state elections.”
Philadelphia attorney Charles Gibbs agrees with that assessment, while suggesting that it’s why the positions should continue to be elective posts. “Prosecutors should operate without fear or favor. The election of a local prosecutor is how we keep Lady Justice blind and ensure that the law is equally applied to all,” Gibbs tells The Root. “Indeed, the election of local prosecutors is one of the most important rights that we have and is often one of the most overlooked. The almost absolute discretion of a local prosecutor bears itself out each day when a person is charged or not charged—or when a victim is advocated for or not advocated for.”
It’s not entirely the fault of mostly unknowing voters or apathetic citizens not bothering to participate. We don’t see the polling on it most times—so it’s out of sight, out of mind. Plus, the gradual disappearance of local newspapers and hard-edged localized political reporting keeps many of these races under the radar (as journalist Perry Bacon Jr. points out in a thoughtful New America essay). Interactive election almanac Ballotpedia might be combing through municipal races in the 100 largest U.S. cities, but it's not about to dive into the weeds of thousands of district and state’s attorney races.
But it’s fairly well known to most habitual voters that the names for prosecutor-election slots are the ones that elicit the most head scratches. During major election cycles, like this one, when candidates crowd ballots, prosecutor races are near the bottom. They are largely undetected by community radar, save the high-profile criminal case.
“The problem with DA races is the same problem that exists with so many down-ballot races,” explains Dan Siegel, president of Themis Strategies and a Philadelphia-based campaign strategist. “The farther down the ballot you are, the less attention the media pays, the less money you can raise and the less voters are inclined to inform themselves.”
Another challenge is that no one is tracking prosecutors. “There is no good way to evaluate the prosecutor the same way we evaluate lawmakers,” Elderbroom tells The Root. “Prosecutors are given a tremendous amount of power over the criminal-justice system.” Some local prosecutors might post annual performance reports on their websites, but you’d be hard-pressed to find any comprehensive, national, one-stop-shop database evaluating local and state prosecutors.
That worries the analyst. “Statistically, crime is down since the ’90s,” Elderbroom says. But he questions if that’s because of solid law-enforcement work or just attributable to “longer sentences” or the threat of “long sentences to get plea deals.”
“There’s just no way to tell without the data,” he says.
Josh Marquis, spokesman for the National District Attorneys Association and, for 20 years, the Clatsop County, Ore., district attorney, is cautious about evaluating prosecutors, describing the topic as contentious. “What exactly is ‘performance?’” asks Marquis. “One dangerous metric is the number of convictions, and we don’t want just that alone.”
Still, advocates like Tanya Clay House, director of public policy for the Lawyers Committee for Civil Rights Under Law, want something. “I would need to know how we are defining these performance reviews,” House says, agreeing with Marquis. “However, transparency is important. It is very important to understand how the discretion given prosecutors is used, and that studies have indicated that implicit bias in the courtroom exists at all levels—particularly with prosecutors.”
Quite a bit of bias roams through the system, and what’s known is not just anecdotal. A 2012 study co-authored by University of Pennsylvania, University of Chicago and Harvard researchers empirically settled the issue for any colorblind doubters. And another 2012 analysis (pdf) by the UCLA Law Review cited a number of studies in places like Los Angeles, Florida and Indiana. “[T]he conditions under which implicit biases translate most readily into discriminatory behavior are when people have wide discretion in making quick decisions with little accountability.”
Loyola Law School professor Justin Levitt thinks that’s got to change, considering the highly impactful and infinite number of serious criminal-justice issues. “Simply by volume, local DAs handle far more cases than the federal prosecutors do,” Levitt tells The Root. “Though local DAs do prosecute many crimes that are quite serious indeed, misdemeanors or cases involving less-hardened criminals are far more likely to be processed through the local prosecution system. These include more cases where the judicious exercise of discretion can be the difference between temporary and lifelong exposure to the wrong end of the criminal-justice system.”
Charles D. Ellison is a veteran political strategist and a contributing editor at The Root. He is also Washington correspondent for the Philadelphia Tribune, a frequent contributor to The Hill, the weekly Washington insider for WDAS-FM in Philadelphia and host of The Ellison Report, a weekly public-affairs magazine broadcast and podcast on WEAA 88.9 FM Baltimore. Follow him on Twitter.