Prisoners of Politics by Rachel Elise Barkow

Author:Rachel Elise Barkow
Language: eng
Format: epub
Publisher: Harvard University Press

Democratic Accountability

Most prosecutors in the United States are elected, so if they are not using their authority to maximize public safety or are otherwise behaving improperly, they can, in theory, be voted out of office. In practice, however, incumbents win a whopping 94–95% of the time when they are up for reelection. Most of the time, they do not even face a challenger. When races are contested, the candidates tend to focus on their own personal attributes or particular high-profile crimes and cases, not overall patterns or policies.22 And as with most popular elections that touch on criminal justice issues, tough-on-crime rhetoric has been dominant.23

But some characteristics about these elections may allow more room for change. The candidates for district attorney are responsible for the single issue of criminal law enforcement. That means that voters do not have to rank various policy preferences in choosing a candidate who may represent a range of views that they like and do not like. They can focus solely on the candidate’s approach to criminal law enforcement and criminal justice policies. And because the election is local, voters may have a better sense of actual crime rates and practices and how they affect their lives and communities. Thus if a significant portion of the community is unhappy with how these policies affect them, they could use their votes to get prosecutors who will implement better practices and policies.

In fact, we are starting to see just this dynamic, as decades of tough-on-crime policies are under scrutiny because of the mass incarceration and human misery they bring, particularly in communities of color, and because voters are questioning whether there is a better way. Incumbents are getting voted out of office if they are not sufficiently committed to reform, and when seats open up for new prosecutors, reformers are starting to win. This shift in local elections holds promise, though it is important not to overstate its potential.24 Higher crime rates or even a single high-profile crime could turn the tide even in places where reformers have won. And while it has been progressive forces that have mobilized thus far to focus on these elections, it is perhaps only a matter of time before more traditional tough-on-crime voices rally on the other side. That said, precisely because so many of the policies prosecutors pursue undermine public safety, there is an opportunity to elect officials with a reform agenda grounded in superior practices when voters are better informed about the shortcomings of an incumbent.

Some criminal justice reformers have made a targeted effort to unseat incumbent district attorneys with troubling records. In many instances, the key triggering event was a prosecutor’s deficient performance in addressing a police shooting of an unarmed citizen.25 For example, in Cuyahoga County, Ohio, which includes Cleveland, the incumbent Timothy McGinty lost after failing to indict the police officer who fatally shot 12-year-old Tamir Rice.26 The challenger, Michael O’Malley, all but conceded that his main attraction for voters was that “I am not Tim McGinty.”27

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