[Update: The Prison Policy Initiative drew on this research for some excellent analysis and graphics about modern “law and order” politics and mass incarceration. Link here.]
I am working on a book project, tentatively titled, “The Rise of the Prosecutor Politician.” My working hypothesis has been that the emergence of the prosecutor’s office as a stepping stone for higher office was a relatively recent/20th century phenomenon with dramatic consequences in American criminal law and mass incarceration. This year, I will be publishing the first chapter on Earl Warren and his role as prosecutor/Attorney General/candidate for Governor in the Japanese Internment in 1941-42.
I started working on this project after two observations. The first was a very productive engagement with my brilliant Fordham law colleague John Pfaff, who has empirically documented a better explanation for the explosion of mass incarceration over the past few decades: prosecutors have dramatically increased their rates of bringing charges and prosecuting per arrest. I suggested an historical explanation: prosecutors increasingly focus on their job as a stepping stone to higher office. The office draws more ambitious politicians, and those emerging politicians seek a reputation for being tough and crime, and they dread the possibility that they would have dropped the charges against a defendant who later commits a heinous crime, because that “mistake” could jeopardize their ascent or their re-election. (Only Delaware, New Jersey, Connecticut, Rhode Island and D.C. have maintained appointments for prosecutors). They prosecute more arrests out of a combination of ambition and fear.
The second observation was of the failures to convict in a series of deaths of black men killed by police in Ferguson and Staten Island. I suggested that suburban/rural prosecutors generally underperform, and perhaps even sabotage, their prosecutions of police in these cases because of their own political ambitions. Here are three stories:
On August, 9, 2014, police officer Darren Wilson shot and killed Michael Brown in Ferguson, Missouri. The facts of the shooting are still unclear, but it is clear that Prosecuting Attorney Bob McColloch handled the case unlike the way prosecutors handle most cases. He brought the case to a grand jury before the police investigation was complete, he did not endorse any charges, and he presented a significant amount of exculpatory evidence, and called a large number of witnesses whose testimony benefited the defendant, all of which are highly unusual.[1] McColloch even acknowledged that he knew that one of those pro-defendant witnesses was probably lying and had been discredited by investigators. A former judge has filed a bar complaint alleging professional misconduct by McColloch and his staff.[2]
On July 17, 2014, in Staten Island, Officer Daniel Pantaleo, arrested Eric Garner for selling loose cigarettes illegally. After Garner swatted away Pantaleo’s hand, Pantaleo put Garner in a choke hold for fifteen seconds, all captured on video. Garner repeated, “I can’t breathe.” Four or five officers stood by while Garner lost consciousness and did not perform CPR. Garner was dead on arrival at the hospital. Daniel Donovan, the Staten Island district attorney, brought the case to a grand jury, and the grand jury declined to indict on Dec. 3, just a few days after the Ferguson jury declined to indict. About one month later, Donovan declared his candidacy for Staten Island’s seat in the U.S. Congress. He contends that he handed the case to his staff, and he never met with witnesses or stepped into the grand jury chambers once.[3] He has fought efforts by the Garner family and civil rights groups to have the grand jury transcript released. Polling showed that voters approved of Donovan’s handling of the case by almost two to one.[4] Soon after the grand jury declined to indict, Donovan won the House seat by about a 60% to 40% margin.
Meanwhile, after Freddie Gray died in the back of a police van in Baltimore, State’s Attorney Marilyn Mosby indicted six police officers quickly after evidence suggested wrongdoing. Mosby’s constituency is very different from McColloch’s and Donovan’s. Chief Judge Sol Wachtler of the New York Court of Appeals famously said that a prosecutor could get a grand jury to “indict a ham sandwich,” if he wanted to. The real question is whether he or she wants to, and that question often turns on whether the public wants to.
[1] Dana Milbank, “Bob McColloch’s Pathetic Prosecution of Darren Wilson,” (Op-Ed), Nov. 25, 2014; Jeffrey Toobin, “How Not to Use a Grand Jury,” New Yorker, Nov. 25, 2014; Citron, Eric. “Cases and controversies: Not your typical grand jury investigation” http://www.scotusblog.com/2014/11/cases-and-controversies-not-your-typical-grand-jury-investigation/.
[2] Carol Daniel, “Bar Complaint Filed Against McColloch, “http://stlouis.cbslocal.com/2015/01/05/bar-complaint-filed-against-mcculloch/
[3] Alexander Burns, “Daniel Donovan, Garner Case Prosecutor, Defense Record as He Runs for Congress.” (Feb. 24, 2015), http://www.nytimes.com/2015/02/25/nyregion/staten-island-prosecutor-defends-his-record-as-he-seeks-house-seat.html?_r=0
[4] Theodoric Meyer, “Prosecutor in Eric Garner case nears election to Congress,”
There are many layers to the crisis in policing in America, but it is important to note that one factor is that many prosecutors are unwilling to police the police. One factor that makes prosecutors so finely attuned to public opinion: the office of prosecutor has become a stepping stone to higher office in America. Thus, the office tends to attract a more political animal, a more ambitious type. Anecdotally, law students with political aspirations tend to gravitate towards preosecutors’ offices. Then, the stakes in prosecutors’ decisions are often higher than simply whether one keeps a job as a prosecutor or moves into private practice. Life goals are in the balance.
Then I started to research the historical trends: When did elected officials start to have a significant background as prosecutors earlier in their career? When did the office of prosecutor become a stepping stone for higher office.
I started with the parties’ nominees for president. The pattern was striking. For most of American history, presidential candidates were generally military heroes (so to speak!) or lawyers in private practice. There were more full-time academics than long-serving prosecutors who became president. The handful of presidential candidates who had experience as prosecutors were the exceptions that proved the rule: they seemed to stumble into the office of district attorney as young men looking for jobs, and then very quickly moved laterally to similarly low prestige jobs. Stephen Douglas, Lincoln’s interlocutor, served one two-year term as a state’s attorney, did not accomplish much, and then returned to private practice. Grover Cleveland and William McKinley both served one two-year term as district attorneys, and then flipped and made their names as criminal defense lawyers. Intriguingly, McKinley’s prominent defense of labor activists won the attention of the anti-labor Republican Mark Hanna, who persuaded McKinley to flip against labor. William Taft served one term as a prosecutor straight out of law school, and then switched to the widely-beloved, upwardly mobile office of … tax collector.
Then two names leap off the page from this study, both in the 1930s, one in New York, one in California: Thomas Dewey (of “Dewey Defeats Truman” fame) and Earl Warren (of “Earl Warren” fame). Both were mediocre students, but were enthusiastic about public interest and passionate about fighting corruption. Neither one sought out the office of prosecutor when they began their legal careers in private practice. But both stumbled into their prosecutorial careers at a pivotal re-organization moment in American history: the rise of organized crime and organized labor, mixing with already organized (and increasingly corrupt) political machines. The administrative state and the police were also growing into a more organized power, and along with them, prosecutors gained more power, prestige, and funding. The media were also more organized and national, and the newspapers and movie reels sensationalized crime. They turned urban mobsters into powerful national anti-heroes, and turned local prosecutors into national heroes
Then, with the help of research assistants, we turned to Supreme Court Justices, circuit judges, governors, state attorneys general, and senators from the 1880s to the present. The Supreme Court Justices is relatively consistent with the pattern of presidents: Very few have any prosecutorial experience until the 1890s. Then some have a few years as prosecutor before they became Justices, but the most dramatic change is in the 1930s through the 1950s, when roughly half of the Justices had significant — even very high profile — prosecutorial background: Owen Roberts, the special counsel in the Teapot Dome corruption scandal; Hugo Black, Frank Murphy, and then five in a row in the 1940s-50s: Vinson, Clark, Minton, Warren, and Harlan II. Again, the shift seems to be in the 1930s through the 1940s.
But our state state-by-state study of circuit judges, governors, state attorneys general, and senators is less clear. Many states show a rise in prosecutors winning higher office in the 1930s, but many states also show this rise much earlier. More states see an increase in 1900-1920, and perhaps it makes sense that the states would precede and foreshadow a national trend, but the gap is bigger than simply being a first step in the same chain. States have always been far more significant in criminal enforcement than the feds, but this was even more true in the late 19th century and early 20th century. The progressive era witnessed the growth of state government regulation and power over crime, morality, and racial supremacy. Perhaps these other trends help explain the earlier rise of prosecutors in state office. Some circuit courts also show a trend earlier (4th, 6th, 5th, 7th, 8th), some in the 1930s-40s (9th and DC), and some have seen this trend only later (1st, 2d, 3d).
I am posting this tentative database here, even if it needs additional checking, for a few reasons: 1) I hope to share this research more broadly, because I know some researchers have similar questions recently; 2) I hope to crowdsource some help with checking this documentation and categorization; 3) and I hope to crowdsource some additional interpretation of these trends and patterns.
I want to clarify the color-coding: for the Justices, I put those with prosecutorial background in red, but bold signifies those with significant/prominent prosecutorial experience. In the other charts, red signifies prosecutorial experience, and blue signifies more prominent political figures. I will probably fix this color coding over time to conform to the Justices page. I also want to thank the research assistants on this project: Matthew Grier, Julie Hendrickson, Eleazar Jacobs, and Jessica Lee. If you have suggestions or comments, contact me at:
jshugerman@law.fordham.edu
Here is the link to the database:
https://docs.google.com/spreadsheets/d/1E6Z-jZWbrKmit_4lG36oyQ658Ta6Mh25HCOBaz7YVrA/edit?usp=sharing
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