Article Of Interest: Ronald F. Wright's Public Defender Elections and Popular Control Over Criminal Justice

I always found it odd when people criticized a single-payer health care system simply by labeling it "socialized medicine." Couldn't our public education system similarly be attacked as socialized education? Are our public libraries socialized book lending? Is the postal system socialized mail delivery? In other words, there are certainly problems with a single-payer health care system, but simply stigmatizing it as socialized medicine makes no sense. Instead, the important point is why we have made health insurance (primarily) private while other services are (primarily) public.

In his terrific recent article, Public Defender Elections and Popular Control Over Criminal Justice, 75 Mo. L. Rev. 803 (2010), Ronald F. Wright, a professor at the Wake Forest University School of Law, addresses a similar question. As he notes in the opening paragraph of the article:

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 courtroom, 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 majority of jurisdictions elect their judges in some form or other. Unlike prosecutors and most judges, however, the public defender is typically not an elected official, even though the defender is a public employee with important budgetary 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 officials? As it happens, we have some actual experience to draw upon in answering these questions because a few jurisdictions actually do elect their public defenders. Florida, Tennessee, and a few places in California and Nebraska elect their chief public defenders at the local level, and have done so for decades.

Do Voters Behave Differently?

As Professor Wright note in the introduction, while the vast majority of jurisdictions have decided to select their public defenders through various appointment techniques,

There are four jurisdictions...which provide for local election of at least some public defenders. California provides for a mix of appointments and elections in the state, and the public defender in San Francisco has long been elected to office. In Nebraska, cities with populations of more than 100,000 may establish public defender offices, and the public defender "shall be elected." Lancaster County, which includes the city of Lincoln, has done so. In Tennessee, the Davidson County public defender office, established in 1962, elects its chief public defender. Other offices in the state followed that selection model when the system expanded statewide in 1989.

Florida has elected its chief public defenders since the dawn of the statewide system.

Chief prosecutors are reelected at alarmingly high rates, with many prosecutors running unopposed. In analyzing the data from Florida and Tennessee, Professor Wright finds that chief public defenders are also on the fast track to reelection:

the percentage of unopposed public defender incumbents is virtually identical to that of prosecutor incumbents (83% compared with 84%, respectively). In addition, the proportion of public defender incumbents who seek re-election and the number who ultimately succeed in their campaigns is even higher than among incumbent prosecutors: incumbent public defenders run in 86% of the races (compared to 75% among prosecutors), and they are re-elected in 86% of the opposed races (compared to 69% among prosecutors).

Table 2: Opposition to Incumbents in Public Defender Elections 

	Prosecutors	All Public Defenders	Florida Defenders	Tennessee Defenders
All Races	3291	148	87	61
Incumbent Runs	2465	127	69	58
	(75% of all races)	(86% of all races)	(79% of all races)	(95% of all races)
Incumbent Unopposed	2063	106	51	55
	(84% of incumbent races)	(83% of incumbent races)	(74% of incumbent races)	(95% of incumbent races)
Incumbent Wins	2340	124	66	58
	(95% of incumbent races)	(98% of incumbent races)	(96% of incumbent races)	(100% of incumbent races)
Incumbent Wins when Opposed	276	18	15	3
	(69% of opposed incumbent races)	(86% of opposed incumbent races)	(83% of opposed incumbent races)	(100% of opposed incumbent races)

According to Professor Wright,

These outcomes might come as a surprise. One might imagine that it would be extraordinarily easy to defeat an incumbent public defender simply by pointing out the aggressive defense tactics that defense attorneys used in prominent cases. Challengers also might criticize an incumbent based on the simple observation that attorneys in the office achieved some acquittals, perhaps more than the statewide average. A challenger might appeal to voters by promising less vigorous defense or lower expenditures in the office. In short, incumbent public defenders would appear to be extraordinarily vulnerable. And yet public defenders face opponents in a minority of election cycles, and they defeat challengers at rates even higher than incumbent prosecutors do.

Not Avoiding a Race to the Bottom

This data seems to belie the cynical view of why most jurisdictions don't elect chief public defenders: that elections would create a "race to the bottom," pursuant to which candidates are elected by promising to make public defenders offices less successful. Professor Wright further supports this conclusion by reviewing the campaign rhetoric in public defender elections and finds that

-Some of the campaign rhetoric points to the personal characteristics - even the moral integrity - of the candidates, rather than the policies or operation of the office. 

-The campaign rhetoric does not remain limited to the individual characteristics of the candidates; the candidates also engage in surprisingly substantive discussions about the priorities and policies of the public defender office.

-Candidates sometimes debate the proper eligibility criteria for defenders who can receive services from the office.

-While cost savings and efficient use of tax dollars dominate the campaign rhetoric, the discussion sometimes runs in the opposite direction, calling for a greater range of services.

Conversely, [c]hallengers are surprisingly circumspect about launching direct criticisms of vigorous defenses by incumbents in particular named cases," although such criticisms are not without precedent. Through this analysis, Professor Wright is able t conclude that

The results of the elections in Florida and Tennessee offer some reason to believe that a race to the bottom is not happening. If it were easy for challengers to win office by promising voters to use less money and to hold back on the use of some defense techniques, we would likely see more incumbents losing elections. As Table 2 indicates, incumbents win just as many elections on the public defender side as they do on the prosecution side. The campaign rhetoric shows a reasonably responsible debate about the best uses of tax dollars and the appropriate range of clients and services that the office should try to cover. Although prosecutor elections feature discussions of recent prosecutions in prominent cases, the public defender campaigns hold the focus more consistently on general policies. The exceptions...show the corrosive possibilities, but most voters have not faced such a prospect.

Elect Some and Not Others

So, what is the reason that the vast majority of jurisdictions appoint chief public defenders while most jurisdictions elect judges and nearly all jurisdictions elect chief public prosecutors? According to Professor Wright, "[t]his inconsistent use of elections...reflects a nuanced and appealing view about the role of public preferences in the design of criminal justice policy in a democracy." Why? Well,

One answer is that these publicly paid agents actually answer to different principals. The prosecutor, of course, represents the public in criminal proceedings and in promoting public safety. Judges represent the public in the resolution of criminal charges, but they are expected to promote public interests as perceived over a longer time frame and set at a higher level of principle.

The public defender, on the other hand, does not exactly serve as an agent for the public. While the public pays the public defender to provide the constitutionally required defense that can support a valid conviction, the attorney represents the client. The taxpayer functions much like the insurance company who selects and compensates the defense attorney in a tort suit. As the Model Rules of Professional Conduct make clear, even when a third party pays for representation, the attorney owes duties of competence, loyalty, and confidentiality to the client and not to the person who pays. Moreover, the voter is not likely to understand the priorities of a criminal defendant. Voters tend to be older, richer, and whiter than most criminal defendants, leading to a mismatch between the voters who select the defense attorneys and the clients who control the objectives of the representation.

While the public can judge chief prosecutors on the cases that they do not and do pursue (and the resources that they use to pursue them,

For the public defender...the voters' authority extends only to the general resource levels they will provide (choosing from the range of funding options allowed under the constitution or other sources of law) and the organizational choices of the leadership. They cannot properly punish the public defender for the means employed to defend a client in a particular case. The adversarial system directs all the benefits of the lawyer's zealous representation to the client, not to the people who pay for the lawyer.

Moreover,

Electing public defenders is also inferior because there are excellent alternative methods of constraining their choices ex ante. The external constraints on public defenders are vibrant even without input from voters. The limited availability of effective defenses built into the criminal code combined with overall funding limits both profoundly shape the work of public defenders. Traditional conceptions of the objectives of criminal defense, conveyed through legal education and professional ethics standards, also promote a regular level of quality in representation. With restraints like these on public defenders, input from voters would be gilding the lily.

By contrast, the external constraints on prosecutor choices are anemic. Criminal codes offer broad and deep options, and judges generally do not second-guess the charge selections of the prosecutors. Election campaigns, however flawed they might be as a signal about public priorities, remain one of the more meaningful external influences on prosecutor decisions. Bureaucratic traditions in other countries might deliver the regularity and reasoned decisions that we expect from prosecutors who operate within the rule of law, but elections still hold an important place in the toolbox of democracy in the United States.

Conclusion

Why do we elect some of the major actors in the criminal justice system but not others? And what do those choices tell us about the roles that these actors play in the system? Professor Wright's article goes a long way toward answering those questions, and I strongly recommend it to readers. I asked Professor Wright what led him to write the article, and he responded:

I wrote the article for a few reasons.  For one thing, I just stumbled across the fact that Tennessee Public Defenders are elected, and it struck me as a bizarre and counterintuitive way to organize the delivery of defense services.  I wanted to learn more about why state leaders would choose this method of delivery, and to explore its effects.  In short, simply curiosity about a random discovery first got me involved in the research.

Second, this piece fits into a broader project in my research.  I have done some work lately on prosecutor elections, so the comparison to the election of public defenders would, I thought, be instructive.  My recent work on comparative prosecutorial services highlights how strange the election of criminal prosecutors seems in a world context.  So this larger election project tries to explain the uniquely American answer to the question of how to blend expertise and accountability as we try to deliver criminal justice in a democracy.  

-CM