PUBLISHED:July 12, 2011

Sara Sun Beale

Scholar of federal criminal law and policy turns her eye to the way prosecutors assume power

Professor Sara Sun BealeThe United States may be the only country with a system of electing prosecutors, and even its process of appointing U.S. attorneys “may be more fraught with political influence” than that in other common law countries, according to Sara Sun Beale, the Charles L.B. Lowndes Professor of Law. To find out, she has launched a comparative study of the way prosecutors assume power in the United States and elsewhere; to date she has examined the prosecutorial systems in Australia and New Zealand as part of this effort.

The project builds on Beale’s lengthy body of scholarship on the federal government’s involvement in the criminal justice system and was sparked, in part, by her recent examination of the identity and role of U.S. attorneys following allegations that politics influenced hiring within the Department of Justice during the Bush administration. Beale spoke with Duke Law Magazine about her current study.

Duke Law Magazine: How did our system of appointing U.S. attorneys and electing district attorneys come about?

Sara Beale: The Constitution puts all federal judicial power in the Supreme Court “and such lower courts as Congress may create.” Congress almost immediately decided to create a system of federal trial courts. They created the districts and judges, and that’s the way they did the U.S. attorneys, too. They were selected and sent off to their districts to be federal law enforcement. They weren’t even paid by Congress, they were paid by the fees in their cases. There was very little supervision, transportation, and communication in the late 1700s. U.S. attorneys were appointed from the state, usually with the support of the local senator.

The position of U.S. attorney general was originally a part-time position. The Department of Justice was created after the Civil War, and eventually we got the criminal and civil divisions, headed by political appointees. So we now have a two-tier system, part of which is geographically based and part of which is subject-matter based and centralized in Washington. The interaction between those is pretty interesting.

I think there is some real value to adapting federal law to the values and problems of local areas and that happens well when the people administering federal law are from that locality. It’s an interesting question, whether you should have that lack of uniformity.

DLM: What are your concerns about the way U.S. prosecutors assume power?

SB: Political influence seems to be a clear danger. Strom Thurmond’s 28-year-old son was appointed to be a prosecutor when he had tried something like four cases. He ended up supervising an office full of prosecutors with an average of 11 years of experience.

The bigger difference is that other countries don’t elect prosecutors. I can’t tell you how many prosecutors from other countries have said to me, “This is hard enough, what I do. I can’t even imagine what it would be like trying to do this job with an election always looming.” Their idea of professional neutrality and independence means that you are not appointed by or responsible directly to elected officials.

Looking at the U.S system, I was concerned about the problems that can arise from our methods of selecting prosecutors, such as the U.S. attorney firings in the Bush administration, the problems related to the conduct of Durham D.A. Mike Nifong, among other things. It made me think, “I just really want to figure out how other people do this, because I know they do it differently.”

DLM: Are other systems translatable to the United States?

SB: You have to ask, “To what degree are there differences in the political, social, and legal cultures?”

In New Zealand, the prosecution of individual cases is done by private lawyers, if you can imagine that. The attorney general selects these attorneys, called crown solicitors, from firms, and they decide whether to prosecute and try most serious criminal cases. That’s an interesting system, and there are things we can learn from it, but it’s hard to imagine that translating directly to the U.S., where many law firms have political ties and where there is such cutthroat competition between firms.

DLM: Is it your intent to suggest a different way of doing things?

SB: I don’t expect either the states or the federal government will change the basic process of selecting chief prosecutors. But there may still be lessons that can be applied here. For example, in some prior work on U.S. attorneys I suggested some feasible changes that might have a beneficial effect, such as having a group with some professional stature advise the senator and the president on a slate of nominees for U.S. attorney, so that you don’t start out with the senator’s son who has no experience. Similarly, I think it’s appropriate to limit contacts between the White House and members of Congress with prosecutors. There’s no good reason for them to be in contact. It might be that similarly, in the state system, we might be willing to think about structural changes if we can be persuaded that this can be a problem.

But I don’t know how many people really think of our system as flawed. The dis­aggregation and dispersion of this power is something that people don’t appreciate, and they don’t appreciate how different it is in other places and how this culture of political control, for pretty obvious reasons, has taken root.

— Forrest Norman