The Growing Red State Attack on Local Prosecutorial Independence

This is an unconservative and undemocratic movement that assaults a uniquely American tradition

(Credit: Alexander Supertramp, Shutterstock)

We live in a time when increasing pressure is being brought to bear on local prosecutorial independence—i.e., the idea that local prosecutors should be free to individually determine which cases to bring to court, independent of outside political influence. Across America, elected prosecutors are being ousted by governors and investigated by newly created commissions.

Two years ago in Florida, for instance, Gov. Ron DeSantis suspended local prosecutor Andrew Warren for allegedly saying he would not prosecute criminal violations of the state’s abortion ban. DeSantis’ rationale for the firing was rejected by the federal courts, though a final decision was never rendered. Then, last year, DeSantis acted a second time, suspending the only Black female elected prosecutor in Florida, alleging she was weak on gun and drug charges and too forgiving of juvenile offenders. Meanwhile, in Georgia, the state legislature has moved to rein in prosecutors who are perceived as soft on criminals by prohibiting prosecuting attorneys from choosing not to prosecute certain categories of crime and creating a commission that will weed out, according to Gov. Brian Kemp, “far-left prosecutors.” A Tennessee state legislative initiative to oust the district attorney in Memphis made less progress last year, but may be revived in the coming session.

Prosecutorial accountability is, assuredly, a good thing. When a prosecutor acts illegally or unethically, there need to be mechanisms to curtail the abuse of power—typically professional oversight boards, internal reviews or local citizens’ rejection of the prosecutor at the ballot box. But the recent efforts are different. They are state-level initiatives—to date, always involving “conservative” governors—to displace elected local prosecutors, who so far have invariably been “liberal” prosecutors representing more liberal enclave cities within the state.

These assaults on prosecutorial independence, however, are at odds with American history. They reverse the historical trend of locating public safety decisions at the local level and ignore the historical origins of how we came to have public prosecutors in the first place. Nothing could be less conservative than a governor who fires a local prosecutor, even if it’s in the name of “conservative” causes. Conservative ends just do not justify unconservative means—and I write this as a conservative who has served as a federal prosecutor. Good governance is about restraint, and governors—especially self-described “conservative” governors—should reserve the use of their power over local prosecutors for truly egregious malfeasance or ethical failures. Discretionary judgments made by local officials are not “wrong” simply because they diverge from those the governor might have made in their place.

When American Prosecutors Went Public

Local prosecutors are the embodiment in American practice of a key conservative principle. Social organization theorists call this principle “subsidiarity,” and when it’s applied to government, conservatives call it “federalism.” It’s the idea that government power generally ought to reside at the lowest feasible level—i.e., at the local or regional level—instead of the national or international level. As a theoretical choice, subsidiarity has both plusses and minuses, but as a practical matter, it is the historical choice Americans have made regarding locally elected prosecutors. That is why current efforts to exert authority over local prosecutors and to discipline them are, at bottom, fundamentally ahistorical and unconservative.

The historical origins of today’s public prosecutor are much in dispute. Some attribute the American structure to an evolution from Britain. Others say it mirrors the French practice of the 18th century. A minority view even ascribes some aspects of our current prosecutorial structure to America’s early Dutch colonists. Whatever the origin, the evolution of the office was a slow one from the time of the first settlement until something like the current prosecutorial structure was adopted in the mid-19th century. By this time, it was uniquely American.

The greatest single change, and one with significance for the current debate, was the shift from private prosecution in Britain to public prosecution in America. Private prosecution is a simple idea: When a crime has occurred, the victim or the victim’s representatives hire a private prosecutor to present the case in court and seek a conviction.

This approach was rooted in medieval British concepts of property. At the time of the American Founding, the British system drew little distinction between civil wrongs (compensated by money payment to the victim) and criminal wrongs (involving imprisonment). They saw all such wrongs as a “contest” between individuals. Private criminal prosecution was modeled on kingly private vengeance, and it was designed to protect the landed and the wealthy against the commoners, who couldn’t afford to hire representatives and participate in the system.

But the elite nature of private prosecution was fundamentally inconsistent with America’s egalitarian roots and its collective belief that peace and justice were a public good. Private prosecution was therefore rare in the colonies. By 1704, one colony, Connecticut, had adopted a system of public prosecution, and the others would soon follow.

When Public Prosecution Went Local

Public prosecution is different. The victim doesn’t need to file a complaint. She is not a party to the prosecution, nor does she make the ultimate decision on whether to bring the case in the first instance. At trial, she may be either a reluctant witness or a willing one. To be sure, at the time of punishment, the victim will be heard and her injuries given significant weight in the court’s ultimate determination. But even there, she is an outsider to the process—an interested one, certainly, but still an outsider.

Rather it is the public, in the form of the government prosecutor, who has the dominant relationship to the case and takes on the mantle of the controlling party in deciding whether to prosecute and how to do so. As the Connecticut Supreme Court put it in 1921 in Malley v. Lane: “The Peace is that state and sense of safety which is necessary to the comfort and happiness of every citizen and which government is instituted to secure.” In short, public prosecution is the vindication of public interests and rights, while the older style of private prosecution was for an individual’s benefit.

Another significant historical development in America emphasizes this close tie between the public and public prosecutors—the rise of elected prosecutors. America is the only country in the world that elects its local prosecutors. That change, which happened gradually and did not reach its culmination until the early 19th century, paralleled other U.S. institutions—the voting franchise, reapportioned legislatures, and even elected judges—that were becoming systematically more democratic.

The emergence of elected public prosecutors emphasizes the close connection between the prosecutor and the public that he or she serves. The local prosecutor has historically been selected by local citizens and imbued with their authority to serve their public interests. The very concept of localized elected power is intended to make it immediately responsive and, in some ways, representative.

In many ways prosecutorial discretion is not formulaic. In different contexts, reasonable actors can come to different decisions. As Connecticut Judge Walter Pickett put it back in 1926, a prosecutor’s job is:

[t]o approach human frailty with intelligent sympathy and understanding; to adjust the needs of society for protection, to the vagaries of human waywardness; to accomplish the purpose of a great social experiment with the often crude agencies that society supplies; to be justly stern, but ever just; to yield to no hysteria, whether of heartless clamor or flaccid sentimentality; to know no favorites and fear no reprisals; to forge steadily on with such courage, sincerity and fidelity as God gives him and the wisdom of experience supplies; these needs must the prosecutor attempt with the knowledge that at the end his fidelities will be often deemed brutalities, his sincerity given sinister interpretation and his courage seldom credited.

This fundamentally conservative view—that all justice is local—undergirds much of our current prosecutorial structure and is consistent with principles of federalism.

And that is why stripping away that local responsiveness and independence is the least “conservative” thing imaginable. To be sure, the conservative governors who are ousting local prosecutors have the nominal legal authority to do so. But the grounds for their actions amount to nothing more than squelching a political debate through an exercise of political power—a power that ought to be employed to address genuine misconduct or malfeasance, not to unseat a duly elected local prosecutor whom they deem “too liberal.”

If a local prosecutor’s “liberal” policies are hurting the local public, then the true conservative answer is to go and win a local election on conservative grounds. If you want to see the system appropriately at work, consider again the case of Andrew Warren, one of the prosecutors improperly suspended by Gov. DeSantis. Earlier this month, he lost his election bid for his old post, having been rejected by the citizens of Tampa. That’s the sort of conservative accountability that should occur—not the unilateral big-footing of a local community’s choices by a politically motivated governor.

Paul Rosenzweig is a member of the American Bar Association Prosecutorial Independence Task Force. The views expressed are his own and are not the position of the ABA.

© The UnPopulist, 2024