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75 Mo. L. Rev. 803 (2010)
Public Defender Elections and Popular Control over Criminal Justice

handle is hein.journals/molr75 and id is 809 raw text is: Public Defender Elections and Popular Control over Criminal Justice Ronald F. Wright* Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal court- room, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all states are elected at the local level. Judicial elections offer more of a mixed bag, but a strong majori- ty of jurisdictions elect their judges in some form or other. Unlike prosecu- tors and most judges, however, the public defender is typically not an elected official, even though the defender is a public employee with important budge- tary and policymaking authority over criminal justice. Why the difference? Do we believe that voters would behave markedly differently when electing public defenders? Or do we believe that public defenders themselves would respond to voter input in less desirable ways than other criminal justice offi- cials? As it happens, we have some actual experience to draw upon in ans- wering these questions because a few jurisdictions actually do elect their pub- lic defenders. Florida, Tennessee, and a few places in California and Ne- braska elect their chief public defenders at the local level, and have done so for decades. Part I of this Article reviews the existing evidence about the election of criminal justice officials and presents new evidence about the campaigns and outcomes in public defender elections. Voters respond to candidates for the public defender's office much in the same way that they react to candidates for the prosecutor's office: they choose the incumbent, even more often than they do for legislators and chief executives.2 The candidates themselves also behave fairly similarly in public defender and prosecutor election campaigns. Both the prosecutor and the defender candidates spend a disappointing amount of time in their campaign speeches discussing the actions of attorneys in particular cases. Part II explores why appointment remains the dominant method for se- lecting the public defender in the United States, despite the appeal of elec- tions in terms of democratic theory. It is possible that the dominant pattern in the states - the election of prosecutors but not public defenders - simply re- veals confusion or an incomplete evolution toward a more consistent ap- * Professor of Law, Wake Forest University School of Law. I want to thank the participants in a faculty colloquium at the University of Arizona Rogers College of Law for their early insights about this project. Elizabeth Arnold, Jeffrey Kuyken- dall, Daniel Moebs, and Sean Price offered invaluable research assistance. 1. See infra Part I.C.l. 2. See infra Part I.A.

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