Law Enforcement, Accountability, and Democracy

Apropos of my column this week about democracy and incarceration, Slate's Dahlia Lithwick and Richard Hasen have put together a compilation of scary videos from judicial election campaigns this year.

I disagree with Lithwick and Hasen when they partly blame Supreme Court decisions, including Citizens United, that have allowed more money and free speech in these campaigns. It isn't the freedom to criticize judges that's the problem. If we're going to have judicial elections, for example, I'd like to see more money spent on efforts to unseat judges like Colorado's Jolene Blair and Terence Gilmore. Both were recently reprimanded for refusing to turn over exculpatory evidence while they were prosecutors, which resulted in the wrongful conviction of Tim Masters. The problem isn't too much speech. It's that the criminal justice is infused with backward incentives.

I largely agree with Lithwick and Hasen's larger point—that electing judges is problematic. As is, again, the general trend toward more democracy and more politics in the criminal justice system. We'd probably be better off if the position of district attorney were a civil service job and not an elected position, too. There are some things we shouldn't put to a vote. The majority can't vote to enslave a minority, or to confer fewer rights on some groups than others. The power to imprison is one of the more awesome powers we grant the government, and democracy is too crude an instrument to protect our rights in the face of that power.

But even here, the alternative isn't optimal. Voters are too easily manipulated by crime fearmongering and tend to reward, not punish, overly aggressive prosecutors, as well as punish judges who show the slightest hint of balance, mercy, or a better-than-narrow view of due process. But I've also written in the past about how rarely prosecutors are punished by courts, the state bar, or the state attorney general for even egregious violations, even in cases that result in wrongful conviction. Given what we already know about accountability in civil service jobs—that is, that there's very little of it—I don't know that there's any reason to think it would be much different for prosecutors. Still, making DAs civil servants would least insulate them from the need to justify their job to voters by racking up convictions, which in turn might eventually attract more people to the position whose concept of justice is a bit more nuanced than filling up the prisons with bad guys.

What would work? Short of turning around public opinion on these issues, the best immediate reform I can think of would be to do away with absolute immunity for prosecutors, which I would think could be done with an act of Congress. The doctrine isn't in the Constitution, and was essentially a whole-cloth Supreme Court construct. At the very least, prosecutors (and for that matter, judges) should be susceptible to civil liability when they not only violate someone's rights, but actually commit a criminal act in the process.

It's not so much that we can sue all of the bad prosecutors out of office; it's more about removing the cone of invincibility around the position. Former U.S. Attorney General John Ashcroft says diluting absolute immunity for prosecutors will make them "gun-shy" about taking difficult cases. I doubt that. It will make them gun-shy about cheating to win those cases. Ashcroft's position on immunity (as well as that of groups like the National District Attorneys Association) is similar to Fraternal Order of Police Executive Director Jim Pasco's position on citizen recordings of on-duty police officers. Both fear that increased accountability will make law enforcement officials hesitant to act. They're right. But it will make them hesitant to act—and in some cases cause them not to act—in precisely those instances where we want them to give more careful thought to what they're about to do.