Greater transparency and diversity in the U.S. system of choosing prosecutors is an essential step in restoring equity and fairness to the justice system, according to the author of a forthcoming book discussing the relationship between prosecutors and democracy.
American prosecutors are often considered the principal drivers of the harsh and excessive sentencing that has contributed to the nation’s high incarceration rates, in part because of their dependence on electoral politics that rewards “tough on crime” rhetoric—with some critics going so far as to argue that relying on voters to choose responsible prosecutors can be counterproductive, says David Alan Sklansky, a professor of law at Stanford Law School.
Such critics, Sklansky says, consider politics to be the “enemy of justice.”
“We have conflicting expectations of prosecutors,” Sklansky writes in a paper entitled “Unpacking the Relationship between Prosecutors and Democracy in the United States,” which will appear in a book, Prosecutors and Democracy: A Cross-National Study, to be published next year by Cambridge University Press.
“We want them to be zealous crime fighters and dispassionate ministers of justice, crusading avengers and agents of mercy, and [also] responsive public officials and apolitical servants of the law”—all of which, says Sklansky, complicates the increasing demands for “democratic” reforms to the prosecutorial system.
But an alternative approach that improves the public’s ability to assess the record and qualifications of prosecutors can reconcile the imperatives of democracy with the need to reform the justice system, Sklansky suggests.
He proposes developing a “ranking” system or “report card” that uses selected performance statistics to measure prosecutor’s work and enable democratic oversight, along with stepped-up efforts to increase minority representation among prosecutors around the country. While Sklansky doesn’t offer details of the specific performance measures he advocates, he argues that such a ranking system will be a significant step towards increasing transparency and accountability in the prosecutorial system.
And he claims that it is one way to satisfy concerns about the “excessive” powers of prosecutors by subjecting them to democratic oversight.
“Too often prosecutors seem answerable neither to politics nor to the law,” Sklansky writes. “Political selection gives them an aura of democratic legitimacy that makes courts hesitate to regulate them, but in practice voters almost never turn a sitting district attorney out of office, and a strong convention bars presidents from firing U.S. attorneys mid-term for ‘political’ reasons.“
Sklansky admits that using ranking or ratings to push reform in other areas, such as education, is a controversial approach.
But he adds, “Even if we cannot reliably and uncontroversially identify the very best prosecutors’ offices, we may be [able to] flag the worst, and that itself could be productive.”
Read the paper here.