Dear Reader,

Last year, I made the difficult decision not to run for re-election as District Attorney of Westchester County. One of my main concerns as DA was keeping outside influences out of the day to day decisions and workings of the office I led. I somewhat expected this to be an issue, but was surprised by the degree to which people who know nothing about the justice system tried to influence my decisions and how the office is run. While the position of District Attorney is an elected office, the role of the DA as chief law enforcement officer of the County is one that must be conducted apolitically. Prosecutorial independence—and the obligation to avoid even the appearance of political influence—is a hallmark of our legal system.

Why is this issue so important? The United States is the only country with elected prosecutors–every state except Connecticut, New Jersey, Alaska and the District of Columbia, chooses their chief prosecutors by elections. And all sorts of important issues get decided in these state prosecutor offices: whether to have a conviction integrity unit to investigate wrongful convictions; how many resources to devote to a public integrity unit to prosecute corruption and police misconduct; how many diversion programs to have for defendants and what kind or type (Felony? Misdemeanor? Drugs? Mental health?). The list goes on and on.

While many of us are rightly focused on protecting the independence of the Department of Justice and U.S. Attorneys’ Offices around the country, the great majority (way over 90%) of criminal cases and arrests actually happen at the state level. Why? Because federal jurisdiction is more limited than state, so there are more state crimes than federal ones. That isn’t to say that federal criminal law and justice issues aren’t important – most of us legal commentators spend most of our time thinking, talking and writing about those issues. And even though they make up a smaller number of overall criminal cases, federal cases tend to be bigger, with more defendants and often weightier legal issues that then filter down to the state courts. But, we simply do not give enough attention to the issues of prosecutorial independence at the state level, and therefore neglect a huge chunk of what impacts people’s daily lives. We end up giving a pass to state and local government and elected officials simply because they aren’t as high profile as, say, the president.

So, how can we make elected state prosecutor offices more independent and autonomous (short of making DAs appointed not elected which is unlikely to happen any time soon)? What can we do to guard the independence of state elected prosecutor offices? By no means comprehensive, here is my top five wishlist of reforms and goals.

1. More Elections

While the concept of an elected chief prosecutor, accountable to the people, is an admirable one, too often it is not the reality. Most elections, especially when an incumbent runs, tend to be uncontested. Though the reasons for this phenomenon vary across the country, my experience in my jurisdiction tells me that the local dominant political party (Democrats in Westchester County) often controls the process behind the scenes. The incumbent can stay as long as they want, and the next chosen candidate will wait their turn. When I launched a primary against an incumbent, I was literally told “wait your turn” by a local party chair. (I did not.) So, in practice, too often voters don’t actually have a choice to hold elected DAs accountable. This makes DAs beholden to the party apparatus that helped put them in power. But, to state the obvious, District Attorneys are supposed to maintain independence even from members of their own party; their work includes identifying, investigating and prosecuting public fraud, corruption and abuse regardless of political affiliation. What can be done about this? One very astute listener to our podcast suggested this: six year single terms (instead of four). It would indeed deal brilliantly with the incumbency problem, plus it would solve  the conflict of running for re-election and “politicking” as a sitting DA, which I found distasteful, if not unethical. Another option – more primaries.

2. Fundraising Limits

While there are a whole host of recommendations in this area, I believe these three are most important: DA candidates should not take donations at all (or minimal) from police unions or from defense attorneys with cases before their office.  A widely-respected, comprehensive report on reducing conflicts of interest in DAs’ Offices in fact recommended just that. Not only is there the real concern that donations might impact decisions on cases, but the appearance of impropriety is strong. I also believe DAs should not take financial donations from other elected officials or from pass-throughs from party committees. I for one abided by these rules during my campaign.

3. Budgetary Independence

While I know this isn’t the sexy stuff of CSI shows, budgetary issues are critically important in government. Every elected prosecutor’s office must have budgetary independence. An independent budget is one that provides the prosecutor’s office with (1) sufficient financial resources to perform its operations; and (2) ensures that the independently-elected District Attorney can determine the priorities of her office. An independent budget is necessary to shield the offices from politically motivated defunding. Without such provisions, the chief prosecutor must seek annual budgetary approval from those with potentially different–political–agendas. In the five District Attorneys’ Offices in New York City (Bronx, Brooklyn, Manhattan, Staten Island and Queens), for instance, each has full control over their office’s budget after the appropriations process. By contrast, the Westchester office that I headed is funded through a line-itemized budget appropriated by the County Board of Legislators (BOL). Once the budget is finalized, the BOL must approve all hiring decisions and any other changes to budget lines. This structure puts the County government in a position to exert significant influence over the DA’s Office, and creates the potential for reprisals if the DA’s priorities do not align with those of other elected officials, or if the DA needs to investigate or prosecute members of county government.

4. Limiting Inappropriate Communication Between Elected Officials and the District Attorney Regarding Investigations and Cases

Until Trump II, the DOJ had policies limiting communications between elected officials and chief prosecutors. Most states have no such rules or policies. Over the past three years, there were several instances where elected officials have communicated directly with the District Attorney regarding ongoing investigations and cases, including, intentionally or not, in ways that seemed tied to the budget process they oversee. Even the most well-meaning inquiries create the risk of an appearance of improper influence. Each jurisdiction should, at a minimum, require that inquiries from elected officials about pending cases come through a designated government affairs liaison. Inquiries regarding the status of particular cases should never be done in a way to suggest they are connected to budget or other approvals, and outside elected officials should not attempt to influence the DA’s Office’s decision on a case, no matter how well-intentioned.

5. Have Other Forms of Accountability

Local public integrity prosecutions are difficult to bring. It doesn’t mean local prosecutors can’t or won’t but, both because the existing case law is extremely restrictive and because many acts by government officials will not rise to the level of a criminal act, outside non-prosecutive agencies are important. These can take the form of Inspector Generals (again, much attention has been paid to those fired by Trump at the federal level but many local jurisdictions don’t have one at all), or agencies like New York City’s Department of Investigation, or a County Board of Ethics like my jurisdiction recently established. But, to be clear, establishing oversight agencies in name only is not enough. These agencies must have investigative staff and the power to issue subpoenas in order to be effective ethics bodies. The Westchester County Board of Ethics has neither. And, last but not least, support for local journalism is critical. Local news outlets are the ones who expose low-level criminal  or non-criminal (i.e. lawful but awful) conduct. Journalists are, and must continue to be, the fifth estate.

Stay Informed,

Mimi

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