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. 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.