A Tale of Two D.A.s

Posted on 11 March 2010

By Natasha Minsker
ACLU of Northern California

Robertson County, Texas, November, 2000. A 24 year-old single mother of four, Regina Kelly, is caught up in a drug sweep triggered by the uncorroborated word of a single police informant. Even though Kelly has no prior drug record and no drugs were found on her or in her home, District Attorney John Paschall offers her one terrible choice: plead guilty to the charges and go home a convicted felon or remain in prison, fight the charges, jeopardize custody of her daughters and risk a long prison sentence for a crime she didn’t commit.

Compare Paschall’s approach to fighting crime with that of Dallas District Attorney Craig Watkins. Watkins created a Conviction Integrity Unit in the DA’s office which uses DNA testing to either exonerate or confirm convictions of those now serving time in Texas prisons. This unit has already exonerated 22 men wrongfully imprisoned for crimes they did not commit. In the process, the DA's office was able to identify the actual perpetrators in several cases.

District Attorneys hold one of the most powerful positions in our criminal justice system. They arguably have more control over the fates of the criminally accused than a judge or even a jury. DAs can invoke the power of the state to seek death or permanent imprisonment. At the other end of the spectrum, they can decline to prosecute a crime at all. They are supposed to serve as attorneys “for the people” and reflect the interests of all members of the community. They should prosecute the laws without prejudice, bias, or political purposes.

This June, of California’s fifty-eight District Attorneys, fifty-six are up for election. Yet as the March 12 filing deadline approaches, a mere sixteen races seem to be contested. That makes forty DA races with only one contender -- hardly the makings of a real contest. And if DA elections aren’t real elections, then how do we keep DAs accountable to the people they serve?

Despite their awesome responsibility, incumbent District Attorneys rarely face challengers. A recent study found that when incumbent District Attorneys run, they win ninety-five percent of the time. Significantly, incumbent prosecutors aren't even challenged in eighty-five percent of elections. Even when they have an opponent, they win sixty-nine percent of the time.

In the small number of contested elections we see, incumbents and challengers rarely bring up key issues. They often rely on personal attacks and war stories, and their campaigns feature sensational accounts of high profile cases instead of shedding light on policy differences. As a substitute for priorities and policies, we see dramatizations of popular cases and anecdotes. It is hard to find the full information needed to determine the better candidate.

Attention must be paid. DAs are no different than politicians. If they are not challenged or compelled to disclose their priorities and practices, the opportunity for abuse grows.

District Attorneys must be held accountable for their decisions. Some accountability comes from the state bar and judges enforce prosecutorial conduct in the courtroom. But true accountability must come from the public. Community members need meaningful opportunities to learn about an incumbent’s job performance and about the impact of his or her policy choices on community safety. That is why we ask District Attorneys to run for office in the first place.

Some argue that District Attorneys should not be elected at all. This would not be a bad idea. Ours is one of the only countries in the world with elected prosecutor positions, and the discretion held by District Attorneys here is nearly unparalleled internationally. We may choose to change the rules of the game one day; but we need accountability now. As long as District Attorneys remain elected officials, we must treat them as such. Elections should never go unnoticed, least of all when life or death decisions are on the line.

It’s not too late for the public to get involved in our upcoming District Attorney elections. More members of the community can opt to run for this key position. Short of that, we can also be a little more informed when we vote for DAs. At public forums we can ask tough questions for hard times like: Where will the D.A.’s office direct our limited criminal justice resources? Will he or she reduce or increase spending on corrections? What would a candidate do to minimize the risk of sentencing an innocent person to death?

The time is right to make these elections genuine contests instead acts of political theater. We have the chance to make District Attorneys aware of local public values and concerns this coming June.

District Attorneys have a really important job. Bringing DA contests into the full light of day, with genuine contenders and real issues, is the only way to ensure justice for all the people.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Natasha Minsker is the Death Penalty Policy Director at the American Civil Liberties Union of Northern California (ACLU-NC). To stay informed on DA races in California this election year, join the Facebook group What a Difference a DA Makes, or follow #DA2010 on twitter.

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