Academic analysis of prosecutor appointment structures and historical civil‑rights enforcement

Page 40 of 42 103 Minn. L. Rev. 844, *913 not unique hybrid: it provides independent review removed from local electoral politics, yet power remains in the hands of 213, U.S. Attorneys and the U.S. Attorney General are political appointees, U.S. Const. art. II, § 2 (Appointments Clause); 28 U.S.C. § 541 (2012) ("The President shall appoint ... a United States attorney for each judicial district."), although much of the Justice Department staff are nonpolitical, civil service appointees. See Government Ethics Outline, U.S. Dep't Just., https:/Awww_ justice.gov/jmd/government-ethics- outline (last updated July 5, 2017) (explaining ethics rules for "non-career" political appointees and for career employees). 214 See Sanford C. Gordon, Assessing Partisan Bias in Federal Public Corruption Prosecutions, 103 Am. Pol. Sci. Rev. 534, 549 (2009) (finding evidence of political party bias among federal prosecutors). 215 The clearest historical example would be the post-Reconstruction decades, starting roughly after 1876, when the federal government retreated from civil rights enforcement in the former Confederate states, including from prosecutions for criminal rights violations and offenses that states declined to charge, including for homicides. See generally Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 524-86 (2014) (describing declining enthusiasm for civil rights enforcement and waning Republican political influence in the South); William Gillette, Retreat from Reconstruction, 1869-1879, at 190-200 (1979) (describing Southern Democrats efforts to resist civil rights enforcement); George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866, at 95-100 (2013) (describing Supreme Court decisions limiting the enforcement of the Civil Rights Act of 1866). 216 Alaska, Connecticut, and New Jersey do not elect prosecutors. Perry, supra note 122, at 2. Delaware and Rhode Island elect state attorneys general, whose appointed staff handle all prosecutions. Id. at 11. Except in these jurisdictions, state attorneys general and justice departments generally have little authority over local prosecutors' offices. Cf. Michael J. Ellis, The Origins of the Elected Prosecutor, /2/ Yale L.J. 1528, 1528 n.1 (2012) (noting that elected prosecutors are unique to the United States). 217 A classic account of prosecutors' political influence is William J. Stuntz, The Pathological Politics of Criminal Law, /00 Mich. L. Rev. 505, 546-57 (2001). For an insightful account of federal prosecutors successfully convincing Congress to expand their discretion at the expense of judges' sentencing authority, see United States v. Kupa, 976 F. Supp. 2d 417, 419-27 (E.D.N.Y. 2013) (describing the legislative history and Justice Department lobbying related to federal drug statutes, notably 27 U.S.C. § 841 (2012)). 218 See, e.g., Milliken v. Stone, 7 F.2d 397, 399 (S.D.N.Y. 1925), aff'd 16 F.2d 98] (2d Cir. 1927) ("The remedy for [dereliction of the prosecutor's duty] is with the executive and ultimately with the people."); Jn re Hickson, 2000 PA Super 402, P 36 ("The prosecutor is elected to run her office using her broad discretion fairly and honestly. If she fails to do so, ... the remedy lies in the power of the electorate to vote her out of office."); Jn re Padget, 678 P.2d 870, 873-74 (Wvo. 1984) ("District and county attorneys hold elective offices; if their constituents are unsatisfied, they are free to express their feelings at the voting polls."); cf. Chenev v. U.S. Dist. Court, 542 U.S. 367, 386 (2004) ("The decision to prosecute a criminal case ... is made by a publicly accountable prosecutor."). For discussion of this point, see Brown, supra note 126, at 33-41. 219 See Adam M. Gershowitz, 12 Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases, 20// U.JIII_L. Rev. 961, 966-69, 984-87 (2011). 20 Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1689-90 (2004). ~I Police departments also widely adopted mandatory arrest policies, especially for domestic violence offenses. For discussions and examples of both police and prosecution policies on domestic violence and sexual assault, see Aya Gruber, The Feminist War on Crime, 92 Towa L. Rev. 741, 760 & n.90 (2007); Sack, supra note 220. Note how this resembles the mandatory prosecution duty familiar in European systems, although it is an internal policy rather than statutory mandate. See supra Part II.B.1. 222 See supra note 186 and accompanying text. 223 Td, 24 See, e.g., Fla. Stat. § 741.2901(1)-(2) (2018) ("Each state attorney shall develop special units or assign prosecutors to specialize in the prosecution of domestic violence cases ... [who] shall receive training in domestic violence issues... . The state attorney in each circuit shall adopt a pro-prosecution policy for acts of domestic violence ... ."); Wis. Stat. § 968.075(7) (2018) ("Each district attorney's office shall develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses."). 5 Some state legislatures enact voluntary charging criteria in statutes that affirm prosecutorial discretion. See, e.g., Wash. Rev. Code § 9.944.411 (2018) ("A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists," and providing a "Guideline/Commentary" for such decisions). DAVID SCHOEN HOUSE_OVERSIGHT_016549