Robert Hur. Jack Smith.
Two prosecutor’s names that two years ago you likely would not have recognized. Today, their names are part of the current public dialogue about President Biden and Donald Trump. They are prosecutors in cases involving politics. Should politics be a consideration when it comes to criminal prosecutions?
State prosecutors have a unique position as politicians since they are elected to the job. “District attorneys are lawyers, but, in Wisconsin and most other states, they are also elected officials, which can give a political character to their role.” Prosecutors and Politics: A Conversation about—and with—District Attorneys (Marquette University Law School Forum 11.15.22), https://law.marquette.edu/2022-11-15/prosecutors-and-politics-conversation-about-and-district-attorneys
The United States is the only country in the world where citizens elect prosecutors. Michael Tonry, Determinants of Penal Policies, 36 CRIME & JUST. 1, 35 (2007) (“Only in the United States are judges and prosecutors elected . . . .”); see also Mirjan Damaika, Structures of Authority and Comparative Criminal Procedure, 84 YALE L.J. 480, 512 (1975) (“In most American states, public prosecutors are locally elected officials with surprisingly great and virtually uncontrolled authority.)
Does being an elected official shape how prosecutors charge cases? In theory, a prosecutor’s charging decision is supposed to be “interested in vindicating the innocence of one wrongfully accused, as in convicting one who is really guilty.” West v. The State, 1 Wis. 209, 232 (1853).
Unfortunately, theory does not always match reality. Among other findings, it was found that a DA election year increases per capita admissions and months sentenced to state prisons, election effects depend on county political ideology more than DA ideology, with effects larger in contested elections, anti-Black/ pro-White county-level bias is associated with greater punitiveness on Black prisoners throughout the entire election cycle. Finally, it was found that “when re-election pressures increase, DAs tend to take more cases to trial and they tend to offer less plea bargains, perhaps in order to boost their re-election probability.” Chika O. Okafor. Working Paper. “Prosecutor Politics: The Impact of Election Cycles on Criminal Sentencing in the Era of Rising Incarceration”. arXiv Preprint (Harvard University 2022), https://scholar.harvard.edu/okafor/publications/prosecutor-politics-impact-election-cycles-criminal-sentencing-era-rising.
A good defense attorney knows how to deal with the politics in a criminal charging decision. In his 35 years as a criminal defense lawyer, Paul Ksicinski has learned how to represent clients when politics could enter a prosecutor’s charging decision. Contact Paul Ksicinski now to protect your rights in a criminal case.
If you have questions, Attorney Paul Ksicinski is here for you. Contact him at 414-363-4331.