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6 Ohio St. J. Crim. L. 581 (2008-2009)
How Prosecutor Elections Fail Us

handle is hein.journals/osjcl6 and id is 585 raw text is: How Prosecutor Elections Fail Us Ronald F. Wright* I. INTRODUCTION When government officials have discretion, the rule of law also requires that they be accountable. This ideal carries even into the world of criminal justice, where the individual prosecutor's power dominates the scene. We hope that every exercise of prosecutorial discretion takes place within a framework of prosecutorial accountability.1 There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors, and legislatures sometimes have their say about criminal law enforcement. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. As licensed attorneys, prosecutors must answer to the bar authorities in their states. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control. In the United States, we typically hold prosecutors accountable for their discretionary choices by asking the lead prosecutor to stand for election from time to time. This is not true in most places around the globe. In the various civil law systems in other countries, the idea of electing prosecutors is jarring. In the civil law depiction of the public prosecutor's job, training and experience hold criminal prosecutors accountable to public values and legal standards. Prosecutors in a civil law tradition perform a ministerial function as they progress through a career-long bureaucratic journey. He or she simply assembles and evaluates the available evidence; if that evidence meets the relevant standard of proof to support a conviction for each element of a crime, the prosecutor has the duty to initiate a prosecution. This lawyerly evaluation-nothing more and nothing less- constitutes the prosecutor's job.2 . Professor of Law and Associate Dean for Academic Affairs, Wake Forest University School of Law. I owe thanks to Sara Beale and the other participants in the Ohio State symposium on prosecutorial discretion, including Doug Berman, Stephanos Bibas, Darryl Brown, Sharon Davies, Bruce Green, Alan Michaels, Robert Mosteller, and Ellen Yaroshefsky. Wayne Logan and Marc Miller provided their usual perceptive comments as readers. I also appreciate the excellent research assistance of Jeff Kuykendall, Daniel Moebs, and Joanna Wright. I Cf. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913) (relational theory of common law rights, defining rights of some in terms of duties owed by others). 2 See generally Yue Ma, A Comparative View of Judicial Supervision of Prosecutorial Discretion, 44 CRIm. LAW BULL. 31 (2008); William T. Pizzi, Understanding Prosecutorial

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