Thread by @DanielRAlonso

THREAD re: whether District Attorneys should be elected or appointed, responding to @JohnCun11960413, who asks in the context of #QueensDA election. #NYS is one of 46 states that elects its local state prosecutors (only NJ, Delaware, Connecticut, and RI don't). /1

https://twitter.com/JohnCun11960413/status/1142868679975231490

Even more stark is that the United States appears to be the only country on earth where local #prosecutors are elected. /2
yalelawjournal.org/note/the-origi…

As John correctly points out, before the mid-19th century, NY prosecutors were appointed by the county courts. The reason we changed to elected in 1846 might seem paradoxical today: to get some of the ill-effects of politics out of the selection of District Attorneys. /3

It seems that the system had become rife with patronage, and DAs were appointed for political patronage and not because of demonstrated competence in #prosecution, or even law. /4

Also, reformers had the then-radical idea to make the District Attorney more directly accountable to the people and to local communities. /5

Great in concept, but irony was that the effect was simply to *shift* politics from patronage in appointment to patronage in elections. In Manhattan, for example, a steady stream of Tammany Hall hacks presided, w few exceptions, until Thomas E. Dewey was elected in 1937. /6

(One key exception is worth noting: William Travers Jerome (1902-09), not only because he was Winston Churchill's first cousin, but bc he made waves by bucking the party establishment.) /7

And the patronage didn't stop at DA himself, who was virtually always picked bc of party loyalty. It extended to Assistant DAs, who also were invariably picked from the clubhouse. When admins switched over, the new DA would fire the old ADAs and bring in his own "men." /8

That took longer to end in some counties than others (and some small amount no doubt still happens in some places), but in Manhattan, Dewey's election and the 31-year tenure of his successor, Frank Hogan, ushered in the tradition of hiring ADAs w/o regard to politics. /9

Notably, in his last election in 1973, Hogan ran against a lawyer who had not been a prosecutor. His slogan was, "You can't play politics with people's lives." /10

Back to question: there hasn't been a serious NY review of whether DA's should be appointed. But that question has been reviewed several times re: judges, and the conclusion of every good government group has been that commission-based appointment is best. /11 cc: @moderncourts

That means that an apolitical (or at least bipartisan) commission recommends candidates, and then a political authority selects. It's sometimes called "merit selection," though I don't like that term because it suggests that no elected judges have merit, which isn't true. /12

That's the best method IMO, although nothing is without politics, as you will have surmised. But for judges, that kind of system works better - excellent examples are the way Judges are appointed in NYC, and federal magistrate judges. /13

But there's a key difference between judges and #prosecutors: judges really must by their oath apply the law to the facts, without extraneous considerations. /14

Prosecutors have the same duty re: *cases*, but not the orientation of the office and the use of resources. Thus, it might be really important for a DA in Texas to go after adult obscenity, but not so much in NYC. /15

Or, to bring it a bit closer to home, DAs can focus more resources on human trafficking, drug diversion, immigration services, and stop low-level marijuana prosecutions. Those are inherently political decisions. /16

So, although I feel strongly that judges should be appointed, I'm not as convinced re: DAs. But if we're going to elect DAs, it is crucial that the public be engaged and really care about the race. I'm not convinced that's happening at all. /17

In the #QueensDA race, the new District Attorney will literally be the person who gets a *plurality* of the vote in a seven-way, off-year, Democratic primary. It is not unusual for only 10 or 15% of the registered Dems to vote. So, in theory you could get 15% of 10% and win. /18

That seems too haphazard to me, and obviously gives a leg up to those with pre-existing political constituencies and a law degree, but not necessarily the qualifications to be District Attorney. Some of those are pointed out here: /19 queenseagle.com/all/daniel-alo…

Last point on this: the @USAttorneys model gives some reason for optimism about appointing #prosecutors. By and large, that system gets it right, and most U.S. Attorneys are highly competent lawyers with appropriate prosecutorial experience. /20

But that's not enshrined into the system - it has evolved that way as a norm. But that norm could collapse at any moment, so if I were designing an appointed prosecutor system I'd build in safeguards that the federal system doesn't currently have. /21

That's a very long way of trying to answer your question! (There's no easy answer.) /End