The origins of the elected prosecutor

Yale Law Journal

Volumn 121, Issue 6, 2012, Pages 1528-1569

  Ellis, Michael J ^a  

^a DARTMOUTH COLLEGE   (United States)

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EID: 84859147202     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (235)

1. See Michael Tonry, Determinants of Penal Policies, 36 Crime & Just. 1, 35 (2007) ("Only in the United States are judges and prosecutors elected.... "); see also Mirjan Damaška, Structures of Authority and Comparative Criminal Procedure, 84 Yale L.J. 480, 512 (1975) ("In most American states, public prosecutors are locally elected officials with surprisingly great and virtually uncontrolled authority.... [H]ierarchical subordination is negligible by continental [European] standards. "); Allen Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 CRIME & Delinq. 568, 568 (1984) ("[T]he American prosecutor enjoys an independence and discretionary privileges unmatched in the world. " (internal quotation marks omitted). The Swiss cantons of Geneva, Basel-City, and Tessin elect judges who have a prosecutorial function, but they are not public prosecutors in the common-law sense of the office. See Council of Eur., The Training of Judges and Public Prosecutors in Europe 148 (1995).
2. See, e.g., Lawrence M. Friedman, Crime and Punishment in American History 29-30 (1993) ("The public prosecutor... appeared quite early on this side of the Atlantic. "); John H. Langbein, Understanding the Short History of Plea Bargaining, 13 Law & Soc'y Rev. 261, 267 (1979) ("[I]n America... the public prosecutor has a longer history than in the mother jurisdiction.... ").
3. See infra Appendix. Today, only four states-Connecticut, Delaware, New Jersey, and Rhode Island-do not elect district attorneys. Joan E. Jacoby, The American Prosecutor: From Appointive to Elective Status, Prosecutor, Sept.-Oct. 1997, at 25, 28 & n.12. No state admitted to the Union since the 1850s has chosen to appoint its district attorneys. See Mass. Const. of 1780
4. See, e.g., David M. Kennedy, Editor's Introduction to Daniel Walker Howe, What HATH God Wrought: The Transformation of America, 1815-1848, at xiv (2007).
5. See, e.g., Laura J. Scalia, America's Jeffersonian Experiment: Remaking STATE Constitutions, 1820-1850, at 6-9 (1999) (describing how the "meaning of America's commitment to popular sovereignty" was frequently the "primary issue on the agenda" in the post-Founding period).
6. This Note begins to fill the void of legal scholarship on elected prosecutors by focusing on printed records from state constitutional conventions, statutes, and contemporary newspaper accounts of political debates. Future scholarship might add additional depth to our understanding of the elected prosecutor by reviewing non-printed sources such as manuscripts or other archival resources of state constitutional conventions.
7. See infra Part IV.
8. See Harry L. Watson, Liberty and Power: The Politics of Jacksonian America 50 (1st rev. ed. 2006) ("[V]oters should have more control over branches of government that had once been shielded from the pressure of public opinion. State leaders who expanded the right to vote in the 1810s and 1820s also moved to increase the number of elective offices in state government.... "); G. Alan Tarr, State Constitutional Politics: An Historical Perspective, in Constitutional Politics in the States: Contemporary CONTROVERSIES AND Historical Patterns 3, 8 (G. Alan Tarr ed., 1996) ("[T]he number of offices subject to popular election and control were multiplied.... [B]y 1861 twenty-four of the thirty-four states selected judges by election rather than by appointment. ").
9. Miss. Const. of 1832, art. IV, §§ 2, 11. See generally infra Section I. B (discussing Mississippi's 1832 reforms).
10. Miss. Const. of 1832, art. IV, §§ 19-20, 23, 25; art. V, §§ 14, 19-20; see also, e.g., Ark. Const. of 1836, amends. V-VII (1848) (providing for the popular election of circuit judges, prosecuting attorneys, and county judges).
11. Kermit L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846-1860, 45 Historian 337, 340-41 (1983) (quoting The Old Guard 22 (Thomas F. Marshall & J.H. Holeman eds., Frankfort, Ky., 1850); see also Lee Hargrave, THE Louisiana State Constitution: A Reference Guide 7 (1991) (quoting Bernard Marigny, a delegate opposed to elected prosecutors at the 1845 Louisiana constitutional convention, complaining, "We have an election for almost everything, from a sheriff down to an inspector of pork!"). Marigny is also notable for introducing the game of craps to the United States. After a trip abroad, Marigny taught a new French table game called "hazard" to his Creole friends. When Anglophones saw the Frenchmen playing the game, they called it "Johnny Crapaud's game, " using the French word for "toad" to refer to the stereotype of the French as frog eaters. The game's nickname was later shortened to "craps. " Tyler Bridges, Bad Bet on the Bayou: The Rise of Gambling in Louisiana and the Fall of GOVERNOR Edwin Edwards 7-8 (2001).
12. Compare Debates and Proceedings in the New-York State Convention, FOR THE Revision of the Constitution 549-73 (Albany, S. Croswell & R. Sutton 1846) [hereinafter Croswell & Sutton, N.Y. Debates] (detailing lengthy debate on how to structure judicial elections), with Mass. Const. of 1780 at 769-71 (describing only a brief debate before deciding, without a roll call vote, to elect prosecutors).
13. Harlan F. Stone, Progress in Law Improvement in the United States, 10 A.B.A. J. 633, 636 (1924); see also Allen Steinberg, The "Lawman" in New York: William Travers Jerome and the Origins of the Modern District Attorney in Turn-of-the-Century New York, 34 U. Tol. L. Rev. 753, 755 (2003) ("The District Attorney's office was a dumping ground for [party] machine loyalists.... ").
14. See, e.g., Nat'l Comm'n on Law Observance & Enforcement, Report on PROSECUTION 15 (1931) ("The 'responsibility to the people' contemplated by the system of frequent elections does not so much require that the work of the prosecutor be carried out efficiently as that it be carried out conspicuously. ").
15. See, e.g., Joseph E. Kennedy, Private Financing of Criminal Prosecutions and the Differing Protections of Liberty and Equality in the Criminal Justice System, 24 Hastings Const. L.Q. 665, 680 n.55 (1997) ("[M]oney, in the form of campaign contributions, can influence elected prosecutors. ").
16. See Eric Rasmusen, Manu Raghav & Mark Ramseyer, Convictions Versus Conviction Rates: The Prosecutor's Choice, 11 Am. L. & Econ. Rev. 47, 71 tbl.2 (2009).
17. See, e.g., Scalia, 5, at 7-8 (noting that debates over expanding the franchise, reapportioning state legislatures, and making various government officers elected comprised "more than half the transcribed notes" from state constitutional conventions in the first half of the nineteenth century).
18. See, e.g., J. Ross Browne, Report of the Debates in the Convention of CALIFORNIA ON THE Formation of the State Constitution, in September and October 1849, at 233-34 (Washington, John T. Towers 1850) [hereinafter Cal. Debates] (approving the election of prosecutors with minimal recorded debate); Proceedings and DEBATES OF THE Convention of Louisiana. Which Assembled at the City of New Orleans January 14, 1844, at 770 (New Orleans, Besancon, Ferguson & Co. 1845) [hereinafter La. Debates] (recording no debate before vote on amendment to elect prosecutors); 1 CHARLES Kettleborough, Constitution Making in Indiana: A Source Book of CONSTITUTIONAL Documents with Historical Introduction and Critical Notes 342 n.50 (1916) (noting that the 1851 Indiana constitutional convention adopted the Committee on Organization of Courts of Justice's proposal for the election of prosecuting attorneys without amendment or vote); see also The Convention, Jeffersonian Republican (New Orleans), Apr. 25, 1845, at 2 (accusing the Louisiana convention of "stifl[ing] discussion upon the illiberal provisions which they are incorporating in the new Constitution" by voting down proposals to elect judicial officers "without permitting a word of debate").
19. Report of the Joint Special Committee of the Legislature of 1852, in FAVOR OF A Convention To Revise the Constitution of Massachusetts 6-7 (Boston, Damrell & Moore 1852); see also 2 Official Report of the Debates and Proceedings in the STATE Convention, Assembled May 4th, 1853, To Revise and Amend the CONSTITUTION OF THE Commonwealth of Massachusetts 805 (Boston, White & Potter 1853) [hereinafter Mass. Debates] (statement of Del. Rufus Choate) (calling the sheriff's office one "which the freedom and violence of popular elections do not greatly harm"). Choate went on to describe the sheriff's responsibilities as "certain specific duties to do for a compensation, and if these are well done, it does not much signify what a minority or what anybody thinks of him. " Mass. Const. of 1780
20. See, e.g., Cal. Debates, 18, at 234 (statement of Del. John McDougal) (discussing the district attorney as one of numerous "officers" of the court to make elected).
21. See, e.g., Steinberg, 1, at 580.
22. Historians have given only cursory treatment to the shift of the district attorney from an appointed to an elected office. See, e.g., Joan E. Jacoby, The American Prosecutor: A Search for Identity 23-25 (1980); Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 450-51 (2001) (devoting two paragraphs to prosecutors becoming elected officials); Jacoby, 3, at 25, 27-29; Carolyn B. Ramsey, The Discretionary Power of "Public" Prosecutors in Historical Perspective, 39 Am. Crim. L. Rev. 1309, 1328 (2002).
23. See, e.g., Caleb Nelson, A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 Am. J. Legal Hist. 190 (1993); see also D.B. Eaton, Should Judges Be Elected?, Or, The Experiment of an Elective JUDICIARY IN New-York 71 (New York, John W. Amerman 1873) (describing the election of judges as "almost... a political revolution" against the judiciary); James Willard Hurst, THE Growth of American Law: The Law Makers 87 (1950) ("It is one of the paradoxes of our legal growth that [the] most basic assertion of the people's control of the courts came at the threshold of the greatest period of judicial power in our history. ").
24. Nelson, 23, at 207 (internal quotation marks omitted).
25. See, e.g., Stephen B. Presser & Jamil S. Zainaldin, Law and American History: CASES AND Materials 428-41 (1980).
26. See Jed Handelsman Shugerman, Economic Crisis and the Rise of Judicial Elections and Judicial Review, 123 Harv. L. Rev. 1061, 1067 (2010) ("The catalysts in the rise of judicial elections were reckless overspending on internal improvements and then the Panics of 1837 and 1839. ").
27. Jed Handelsman Shugerman, The People's Courts: Pursuing Judicial INDEPENDENCE IN America 104-05 (2012).
28. See, e.g., Shugerman, 26, at 1132-33 (noting that opposition to gubernatorial patronage contributed to judicial elections).
29. See, e.g., Cal. Const. of 1849, art. VI, § 7 (establishing the prosecuting attorney in the constitutional article entitled "Judicial Department"); Ind. Const. of 1851, art. VII, § 11 ("Judicial"); La. Const. of 1845, tit. IV, art. 74 ("Judiciary Department"); Wis. Const. of 1848, art. VII, § 23 ("Judiciary").
30. See, e.g., Donald J. Ratcliffe, The Politics of Long Division: The Birth of the SECOND Party System in Ohio, 1818-1828, at 133-34 (2000) (explaining how the 1828 election created a "balanced party system" in Ohio for the next twenty-five years); Shugerman, 26, at 1082 (citing Philip L. Merkel, Party and Constitution Making: An Examination of Selected Roll Calls from the New York Constitutional Convention of 1846, at 2-6, 30 (May 2, 1983) (unpublished graduate seminar paper, University of Virginia) (on file with Harvard Law School) (describing the New York convention as split between Whigs and the "Barnburner" and "Hunker" factions of the Democratic Party, with the Barnburners holding a plurality); cf. Winbourne Magruder Drake, The Mississippi Constitutional Convention of 1832, 23 J.S. Hist. 354, 367 (1957) (describing how "liberal-conservative lines" and sectional factions were "blurred" on the question of popular election of judges at the 1832 Mississippi convention). Elections were relatively competitive between Democrats and Whigs, the two leading political parties, throughout the period prosecutors became elected officials. For example, the four presidential elections between 1836 and 1848 elected two Democrats and two Whigs, and more than half of the states (fourteen of twenty-six) gave their votes to both Democratic and Whig candidates in presidential elections during that same period. See Electoral Votes for President and Vice President 1837-1853, Nat'l Archives & Records Admin., http://www.archives.gov/federal-register/electoral-college/votes/1837_1853.html (last visited Dec. 3, 2011).
31. Cf. Kermit L. Hall, The "Route to Hell" Retraced: The Impact of Popular Election on the Southern Appellate Judiciary, 1832-1920, in Ambivalent Legacy: A Legal HISTORY OF THE South 229, 230 (David J. Bodenhamer & James W. Ely, Jr. eds., 1984) ("In the state constitutional conventions of the mid-nineteenth century, lawyer-delegates expected to professionalize the bench by bringing popular will to bear on the influence exercised by party leaders over judicial patronage. ").
32. Ky. Const. of 1799, art. III, § 23 ("Attorneys for the commonwealth, for the several counties, shall be appointed by the respective courts having jurisdiction therein. "); N.Y. Const. of 1821, art. IV, § 9 ("The clerks of courts... shall be appointed by the courts of which they respectively are clerks; and district attorneys by the county courts. ").
33. Ala. Const. of 1819, art. V, § 18 ("There shall be... as many solicitors as the general assembly may deem necessary, to be elected by a joint vote thereof.... "); Ga. Const. of 1798, art. III, § 3 ("There shall be a State's attorney and solicitors appointed by the legislature, and commissioned by the governor, who shall hold their offices for the term of three years.... "); N.C. Const. of 1776, pt. 2, art. XIII ("That the General Assembly shall, by joint ballot of both houses, appoint... [an] Attorney-General, who shall be commissioned by the Governor, and hold [his] office during good behavior. "); Tenn. Const. of 1796, art. V, § 2 ("The general assembly shall, by joint ballot of both houses, appoint... an attorney or attorneys for the State.... ").
34. Mass. Const. of 1780, pt. II, ch. 2, § 1, art. IX ("All judicial officers... shall be nominated and appointed by the governor.... "); N.H. Const. of 1792, pt. II, § 46 ("All judicial officers, the attorney-general, solicitors... shall be nominated and appointed by the governor and council.... ").
35. Mich. Const. of 1835, art. VII, § 3.
36. See, e.g., Akhil Reed Amar, America's Constitution: A Biography 133-34 (2005) (describing a "backdrop of weak state 'presidents' and occasionally stronger state 'governors'" behind the crafting of the Federal Constitution's Article II).
37. See, e.g., La. Const. of 1812, art. III, § 9 (giving the governor the power to appoint, "with the advice and consent of the Senate, Judges, Sheriffs and all other Officers whose offices are established by this Constitution"). Compare Va. Const. of 1776 (requiring the governor to stand for annual election by the legislature), with Va. Const. of 1830, art. IV, § 1 (requiring the legislature to elect the governor to a three-year term).
38. Democracy, Liberty, and Property: The State Constitutional CONVENTIONS OF THE 1820's, at 126 (Merrill D. Peterson ed., 1966).
39. N.Y. Const. of 1821, art. I, § 12.
40. The Constitutional Debates of 1847 art. IV, § 7.
41. Mass. Const. of 1780, amend. I (1821); see also John A. Fairlie, The Veto Power of the State Governor, 11 Am. Pol. Sci. Rev. 473, 476-80 (1917) (describing governors' increased veto powers by the middle of the nineteenth century).
42. Frank W. Prescott, The Executive Veto in American States, 3 W. Pol. Q. 98, 100 (1950).
43. See, e.g., Mark H. Haller, Plea Bargaining: The Nineteenth Century Context, 13 Law & Soc'Y Rev. 273, 274 (1979) ("By the 1840s and 1850s in the larger cities... full-time prosecutorial staffs developed and often handled charging decisions, at least in serious cases. ").
44. See, e.g., People v. Whipple, 9 Cow. 707, 712 (N.Y. Sup. Ct. 1827) (finding that the competence of a witness could not "with propriety, be entrusted to the public prosecutor, or any other inferior ministerial officer of justice, because, strictly speaking, it is the exercise of a high judicial discretion"); see also Cal. Debates, 18, at 233-34 (statement of Del. John McDougal) (including district attorneys in a list of "officers of the[] court"); THE Code of Civil Procedure of the State of New-York tit. IV, at 142 (Lawbook Exch., Ltd. 1998) (1850) (including district attorneys with sheriffs, county clerks, coroners, clerks of court, and court reporters as "ministerial" officers); Jacoby, 22, at 23 (explaining that the prosecutor was, "in the eyes of the earliest Americans, clearly a minor actor in the court's structure").
45. See, e.g., E.P. Hurlbut, Civil Office and Political Ethics 81 (New York, Taylor & Clement 1840); Jacoby, 22, at 24-26.
46. Steinberg, 1, at 580.
47. See Mass. Const. of 1780 at 580-82.
48. See Alexander B. Aikman, The Art and Practice of Court Administration 102 (2007) (noting that in the Jacksonian era, "the job of clerk of court often was less than a full-time job").
49. See William L. Murfree Sr., A Treatise on the Law of Sheriffs and Other MINISTERIAL Officers § 7 (St. Louis, F.H. Thomas & Co. 1884).
50. Julie Johnson, Coroners, Corruption and the Politics of Death: Forensic Pathology in the United States, in Legal Medicine in History 268, 268 (Michael Clark & Catherine Crawford eds., 1994) ("Whereas English coroners were often physicians, attorneys, or local magistrates, American coroners... were typically farmers, carters, or undertakers"); see also id. at 272 ("Coroner's physicians, who performed the autopsies... [w]ere granted the part-time position as a reward for faithful service as ward leaders or political organizers. ").
51. See Friedman, 2, at 66-67; Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century United States, 39 Am. J. Legal Hist. 43, 43-44 (1995) ("[T]he office [of prosecutor] often attracted young, inexperienced attorneys or older, generally incompetent ones. "); see also George Fisher, Plea Bargaining's Triumph, 109 Yale L.J. 857, 896-97 (2000) (explaining how most public prosecutors in nineteenth-century Massachusetts were part-time officials who maintained civil law practices).
52. Rex E. Lee, Lawyering in the Supreme Court: The Role of the Solicitor General, 21 Loy. L.A. L. Rev. 1059, 1059 (1988) ("[T]he attorney general's annual salary, $1500, was half that of the other cabinet officers. ").
53. Letter from George Washington to Edmund Randolph, U.S. Att'y Gen. (Sept. 28, 1789), reprinted in 30 The Writings of George Washington from the Original MANUSCRIPT Sources 1745-1799, at 418, 419 (John C. Fitzpatrick ed., 1939).
54. Randolph did maintain a private practice-notably, he represented the petitioner in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). Steven Menashi, Article III as a Constitutional Compromise: Modern Textualism and State Sovereign Immunity, 84 Notre Dame L. Rev. 1135, 1158 (2009).
55. The fees district attorneys could collect for their services were frequently lower than the fees for equivalent services in private practice. See, e.g., Shattuck v. Woods, 18 Mass. (1 Pick.) 171, 177 (1822) (observing that a fee may be "inadequate compensation in some cases"); Hatch v. Mann, 15 Wend. 44, 47 (N.Y. 1835) (declaring it an "absurdity" to believe compensation would be "full and adequate... for the performance of the service in each particular case").
56. Report of the Proceedings and Debates in the Convention To REVISE THE Constitution of the State of Michigan 520 (Lansing, R.W. Ingals 1850) [hereinafter Mich. Debates] (statement of Del. Charles W. Whipple); see also 2 DEBATES AND Proceedings of the Maryland Reform Convention To Revise the STATE Constitution 9 (Annapolis, William M'Neir 1851) [hereinafter Md. Debates] ("[P]ersons had been appointed [district attorney] who never would have been thought of, if the proper persons could be induced to accept. "); Report of the Debates and PROCEEDINGS OF THE Convention for the Revision of the Constitution of the State of Kentucky, at 673 (Frankfort, A.G. Hodges & Co. 1849) [hereinafter Ky. Debates] (statement of Del. Ben Hardin) ("I, too, have been state's attorney, and know the necessity for having men of talents to fill that office. I have seen that office dwindled down to a mere nothing when compared to what it once was. "); Ireland, 51, at 43-44 (quoting a delegate to the 1847 Illinois convention as complaining that the office of district attorney was "generally taken by young men who desired to become acquainted with the people, and get into practice; as soon as this was accomplished they gave way to others").
57. Miss. Const. of 1817, art. III, § 1.
58. The Constitutional Debates of 1847 art. IV, § 17.
59. John W. Winkle III, The Mississippi State Constitution: A Reference Guide 5-6 (1993).
60. See Shugerman, 27, at 70; see also Proceedings of the New Jersey STATE Constitutional Convention of 1844, at 491 (John E. Babout ed., 1942) [hereinafter N.J. Proceedings] (statement of Del. Richard Stockton Field) (arguing that Mississippi called its convention because "the people were so disgusted, so indignant at the manner in which appointments had been disposed of... [that they] resumed themselves the exercise of this power, so much abused by their representatives, and every officer in the State is elected by the people").
61. See Drake, 30, at 368. There was no printed record of the debates of the Mississippi convention, only a journal of proceedings that summarized the actions of the convention. See Journal of the Convention of the State of Mississippi, HELD IN THE Town of Jackson (Jackson, Miss., P. Isler 1832).
62. Letter from Stephen Duncan to Levin Wailes (Sept. 14, 1832), as reprinted in Edwin ARTHUR Miles, Jacksonian Democracy in Mississippi 33 (1960).
63. Miles, 62, at 37 (quoting Henry S. Foote in the Mississippian (Vicksburg), Jan. 9, 1832).
64. Shugerman, 27, at 73. Shugerman also notes that twenty-six of the forty-eight delegates were not listed in any biographical guides to Mississippi history. Mass. Const. of 1780
65. See Mass. Const. of 1780 at 74 (stating that the convention lacked "the established leaders who valued appointments and had benefited most from them").
66. 1839 Miss. Laws 72; see also Elizabeth Gaspar Brown, Comment, Husband and Wife-Memorandum on the Mississippi Woman's Law of 1839, 42 Mich. L. Rev. 1110, 1118 (1944) ("[Mississippi's law] was the first departure in a common-law jurisdiction from the established theories of the common law as related to the persons or property of married women. ").
67. Miles, 62, at 42 (quoting George Winchester writing in the Nov. 9, 1832 edition of The Natchez).
68. Letter to the Editor, Legislation of Mississippi, 11 Am. Jurist & L. Mag. 363, 363 (1834).
69. Mass. Const. of 1780
70. The Constitutional Debates of 1847 at 364.
71. Mass. Const. of 1780
72. N.J. Proceedings, 60, at 129 (statement of Del. Andrew Parsons).
73. Fragments of the Debates of the Iowa Constitutional Conventions of 1844 AND 1846, at 105 (Benjamin F. Shambaugh ed., 1900) (statement of Del. Elijah Sells); see also Report of the Debates and Proceedings of the Convention for the REVISION OF THE Constitution of the State of New-York, at 791 (William G. Bishop & William H. Attree eds., Albany, N.Y., Evening Atlas 1846) [hereinafter Bishop & Attree, N.Y. Debates] (statement of Del. Conrad Swackhamer) (paraphrasing Swackhamer's remarks in favor of elected judges as expressing apprehension that "the libels against [Mississippi's] elective judiciary were so often repeated... that the calumniators would eventually believe they were telling the truth unless it was refuted").
74. La. Debates, 18, at 755 (statement of Del. James F. Brent). Brent also introduced a letter from J.A. Quitman, one of the former opponents of electing judges in Mississippi, into the Louisiana convention's record. In it, Quitman noted that he initially "feared that popular excitements would find their way upon the bench, that party spirit and political prejudices would generally determine the selection [of judges], " but later decided "these apprehensions were not well founded. " The Constitutional Debates of 1847 Quitman may have changed his mind because he proved successful at winning judicial elections. See Shugerman, 27, at 75 (citing Robert E. May, John A. Quitman: Old South Crusader 57 (1985) (noting that Quitman won the first election for chancellor in 1833).
75. Andrew R. L. Cayton, Law and Authority in the Northwest Territory, in 1 The HISTORY OF Ohio Law 13, 20 (Michael Les Benedict & John F. Winkler eds., 2004).
76. The Constitutional Debates of 1847 at 22.
77. See Ohio Const. of 1802, art. III, § 11.
78. Rutherford v. M'Faddon (Ohio 1807), reprinted in Ohio Unreported Judicial DECISIONS Prior to 1823, at 71, 83 (Ervin H. Pollack ed., 1952).
79. David M. Gold, The General Assembly and Ohio's Constitutional Culture, in 1 The HISTORY OF Ohio Law, 76, at 88, 92-94.
80. Andrew R.L. Cayton, The Frontier Republic: Ideology and Politics in the OHIO Country, 1780-1825, at 133-34 (1986).
81. 1806 Ohio Laws 100.
82. 1832 Ohio Laws 13 ("[T]here shall hereafter be elected in each organized county in this state, on the second Tuesday of October biennially, in the same manner that other state and county officers are elected... one prosecuting attorney, who shall hold his office for the term of two years.... "). Nevertheless, in 1838, Ohio enacted a law stating that, in the event of a vacancy in the office of the prosecuting attorney, "the supreme court, in term time, or any judge thereof, in vacation, may direct or permit any member of the bar to do and perform the duties... performed by the prosecuting attorneys of the several counties of this State. " 1837 Ohio Laws 72; see also The Statute Laws of the Territory of Iowa: Enacted at the First Session of the Legislative Assembly of Said Territory, HELD AT Burlington, A.D. 1838-39, at 394-95 (Dubuque, Iowa, Russell & Reeves 1839) (establishing identical procedures to fill vacancies). In 1852, Ohio shifted the responsibility to fill vacancies in the office of prosecuting attorney to the county court of common pleas. See In re Prosecuting Att'y, 2 Ohio Dec. Reprint 602, 4 West. L. Monthly 147 (Ct. Com. Pl. 1861).
83. See Minutes of the Proceedings of the Legislature of Ohio, Ohio St. J. & Columbus Gazette, Mar. 12, 1831, at 2 (noting that the bill was "further amended in its details" and then "indefinitely postponed").
84. Ohio Legislature, Ohio St. J. & Columbus Gazette, Dec. 26, 1832, at 2.
85. The paucity of the legislative record suggests that the issue of whether or not to elect prosecuting attorneys was relatively unimportant to legislators at the time. By contrast, a newspaper reprinted large portions of the bill to charter a state bank and the accompanying debates over the bank issue. See Important Bill, Ohio St. J. & Columbus Gazette, Dec. 29, 1832, at 3.
86. Ohio Const. of 1802, art. III, § 11; The Constitutional Debates of 1847 art. VI, § 1.
87. 1828 Ohio Laws 65-67.
88. 1830 Ohio Laws 399-405. Note also that the county surveyor was capable of taking testimony from witnesses under oath in land disputes. The Constitutional Debates of 1847 at 400-01.
89. 1832 Ohio Laws 13.
90. Minutes of the Proceedings of the Legislature of Ohio, Ohio St. J. & Columbus Gazette, Dec. 12, 1827, at 3 ("Officers generally... must be residents. But this i[s] not required in a Prosecuting Attorney.... He is not required to be a resident of the county in which he holds his office.... ").
91. Private prosecutions remained common in Ohio throughout the nineteenth century, especially in actions to enforce liquor laws. See, e.g., Richard F. Hamm, Shaping the 18TH Amendment: Temperance Reform, Legal Culture, and Polity, 1820-1920, at 145 (1995) (finding that in 1900, approximately three-quarters of liquor law prosecutions were conducted by private attorneys hired by the Ohio Anti-Saloon League).
92. 1805 Ohio Laws 57.
93. John M. Dougal, The Farmer's Assistant, or Every Man His Own Lawyer 167 (Chillicothe, Ohio, J. Barnes 1813) ("If the verdict is not guilty, the clerk records it... after which the clerk asks the prosecuting attorney, if he has any thing further to allege against the prisoner. " (internal quotation marks omitted).
94. 1820 Ohio Laws 201.
95. See Annual Report of the Attorney General, reprinted in Documents, Including MESSAGES AND Other Communications Made to the Forty-Fifth General ASSEMBLY OF THE State of Ohio 318-19 (Columbus, Ohio, C. Scott 1847). The 1846 report states that of 2035 prosecutions, 1371 resulted in convictions and 413 in acquittals, leading to the conclusion that 251, or 12%, were dropped. The Constitutional Debates of 1847 at 320. The report did not specify the number of nolle prosequis until a few years later.
96. See Crime in Ohio, Ohio Repository (Canton), Mar. 8, 1854, at 1.
97. See Biennial Report of the Attorney General, Daily Ohio Statesman (Columbus), Feb. 9, 1858, at 2. In 1857, there was a spike in nolles to 1047 out of 2493 prosecutions, or over 40% of all prosecutions. The Constitutional Debates of 1847 The newspaper notes that the 1857 increase was caused by Kelley v. State, 6 Ohio St. 269 (1856). In Kelley, the Ohio Supreme Court invalidated the statute giving jurisdiction over criminal offenses to courts of common pleas because the law did not apply to some of the state's counties in violation of article II, section 26 of the Ohio Constitution of 1851. See also Att'y General's Report-Statistics of Crime, Ohio Repository (Canton), Mar. 10, 1858, at 2 ("So many nolles in 1857 grew out of the decision of the Supreme Court in Kelley vs. The State. ").
98. See Biennial Report of the Attorney General, for the Years 1858-9, reprinted in 2 MESSAGES AND Reports to the General Assembly and Governor of the State of Ohio: For the YEAR 1859, at 589, 615 (Columbus, Richard Nevins 1860).
99. See Steinberg, 1, at 576-77.
100. See George Fisher, Plea Bargaining's Triumph: A History of Plea BARGAINING IN America 36-37 (2003). But cf. Mike McConville & Chester L. Mirsky, Jury TRIALS AND Plea Bargaining: A True History 155-56 (2005) (finding that in New York City, 90% of indictments in the early nineteenth century had only one count and 80% of guilty pleas by 1846 were to the most serious charge).
101. See, e.g., Allen v. State, 10 Ohio St. 288, 289 (1859) ("The indictment contained three counts, but the prosecuting attorney entered a nolle prosequi, as to Allen, upon the first and second counts, and arraigned him upon the third. "); Robbins v. State, 8 Ohio St. 131, 134 (1857) (describing how a defendant "withdrew his plea of not guilty to the indictment; whereupon the prosecuting attorney entered a nolle prosequi on the fifth count of the indictment"); see also 1 Md. Debates, 56, 480 (statement of Del. William Grason) (recounting how a prosecutor had used a nolle prosequi to drop charges against a defendant who agreed to testify against his accomplices).
102. See, e.g., Daily Ohio Statesman (Columbus), Oct. 12, 1837, at 2 (announcing the election of a Democrat as prosecuting attorney in Delaware County); Portage and Trumbull Counties, Daily Ohio Statesman, Oct. 20, 1837, at 3 (declaring that in Portage and Trumbull Counties, the Democrats "succeeded in electing their Prosecuting Attorney").
103. See, e.g., Failure of Public Justice-The Grand Jury and Prosecuting Attorney, Daily OHIO Statesman, June 12, 1855, at 3 (insinuating that a Know-Nothing prosecuting attorney in Franklin County failed to investigate a fellow Know-Nothing's assault on a rival newspaper editor).
104. Ohio Legislature, Cincinnati Wkly. Herald & Philanthropist, Dec. 17, 1845, at 1.
105. Prosecutors in Ohio also became important figures in the local abolition movement. See, e.g., J.R. Giddings, Fugitive Slaves in Northern Ohio, in Liberty Bell 27, 34-36 (Boston, Mass. Anti-Slavery Fair 1846) (detailing how a county prosecuting attorney in Ohio brought criminal assault and battery charges against Kentucky slave-catchers for seizing escaped slaves by force in order to "deter other slave-hunters").
106. Tuscarawas Election, Ohio Statesman, Oct. 20, 1841, at 3.
107. The Journal's Compliments, Daily Ohio Statesman, May 15, 1849, at 2.
108. See, e.g., Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln 314-17 (2005) (noting that "[a]mong civil officers directly appointed by the president, the removal rate was nearly one-half" in the Jackson Administration, and that "[i]n 1829 and 1830, plummy postmasterships and deputy postmasterships changed hands by the hundreds"). Jackson's use of political appointments differed dramatically from that of previous presidential administrations, which had allowed civil servants to continue in office unless they proved grossly incompetent or corrupt. See Carl Russell Fish, The Civil SERVICE AND THE Patronage 75-78 (1905); Jerry L. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861, 117 Yale L.J. 1568, 1613-28 (2008).
109. John C. Calhoun, A Report on the Extent of Executive Patronage (Feb. 9, 1835), reprinted in Life of John C. Calhoun 168, 176 (New York, Harper & Bros. 1843); see also Communication from the Governor (Doc. No. 51, Mar. 8, 1838), reprinted in Documents, INCLUDING Messages and Other Communications, Made to the Thirty-Sixth General ASSEMBLY OF THE State of Ohio 4-5 (Columbus, Samuel Medary 1837) (reciting a resolution passed by the Kentucky legislature that decried the "abuse, encroachments, and usurpations of the Executive Department" of the federal government against "all who do not conform to the creed of the dominant party-in a new and fearful version of the power of dismission from office").
110. La. Debates, 18, at 749 (statement of Del. James F. Brent); see also and accompanying text (describing popular dissatisfaction with patronage appointments in Mississippi).
111. Thomas Ford, A History of Illinois, from Its Commencement as a State in 1818 TO 1847, at 26-27 (Chicago, S.C. Griggs & Co. 1854).
112. See, e.g., 3 Jabez D. Hammond, Political History of the State of New-York 325 (Syracuse, N.Y., Hall & Dickson 1848) (describing William Bouck, governor from 1843 to 1844, as a man who "held out encouragements to friends of advancements and patronage"); The Constitutional Debates of 1847 at 359 (noting that a bill to abolish the office of bank commissioner originated "from a desire to curtail the patronage of the governor"); The Constitutional Debates of 1847 at 667 (contending that one of the 1846 constitutional convention's effects was to take from the governor "the prerogative of appointment to office" and give "to the people, acting in their sovereign capacity, the vast patronage which theretofore had been wielded by a central power").
113. See Charles W. McCurdy, The Anti-Rent Era in New York Law and Politics, 1839-1865, at 100 (2001).
114. District attorneys became elected in Pennsylvania in 1850. See 1850 Pa. Laws 654, § 1. The 1838 constitution did make prothonotaries, clerks of court, registers of wills, recorders of deeds, coroners, sheriffs, and justices of the peace elected officers. Pa. Const. of 1838, art. VI, §§ 1, 3, 4, 7.
115. See Rosalind L. Branning, Pennsylvania Constitutional Development 23-24 (1960) ("During the long period of agitation for revision, one of the primary objects of criticism had been the broad appointive powers of the governor.... It was openly charged that this broad power of patronage had formed the basis for re-election of governors. ").
116. Pa. Const. of 1838, art. II, § 8; Pa. Const. of 1790, art. II, § 8.
117. 2 Proceedings and Debates of the Convention of the COMMONWEALTH OF Pennsylvania To Propose Amendments to the Constitution 288 (Harrisburg, Pa., Packer, Barrett & Parke 1837) (statement of Del. George Woodward). Woodward also argued that legislators, being "well acquainted with the districts which they represent, " would be better-suited than the governor to help select local government officers. The Constitutional Debates of 1847 Some delegates at Pennsylvania's convention, including future U.S. Congressman Thaddeus Stevens, wanted to go even further in restraining the executive by "tak[ing] away from the Governor all agency in the appointment of all [county] officers... and giving their election to the people. " The Constitutional Debates of 1847 at 307 (statement of Del. Thaddeus Stevens). Stevens also argued that election of county officials would prevent "the officers of the small and remote counties" from being "filled by and with the advice, consent, and at the dictation of large and distant counties!" The Constitutional Debates of 1847 at 309.
118. Pa. Const. of 1838, art. II, § 8.
119. See, e.g., Shattuck v. Woods, 18 Mass. 171, 177 (1822) (observing that a fee may be "inadequate compensation in some cases"); Hatch v. Mann, 15 Wend. 44, 47 (N.Y. 1835) (declaring it an "absurdity" to believe compensation would be "full and adequate... for the performance of the service in each particular case"); Mich. Debates, 56, at 339 (statement of Del. William Norman McLeod) ("For my own part, I can testify that my salary as prosecuting attorney is merely nominal.... I have sacrificed from $1,000 to $1,500 that I might have made by managing cases for the defense. "); Ireland, 51, at 44 (describing a speech by former Supreme Court Justice David Davis to the Illinois State Bar Association decrying the low compensation of state prosecutors).
120. See, e.g., Ky. Debates, 56, at 358 (statement of Del. Elijah F. Nuttall) ("Our county gives two hundred dollars annually to the county attorney; he receives it whether he renders twenty-five dollars worth of service or not. We never enquire into the fact. "); cf. Hamilton County Criminal Court, Daily Ohio Statesman (Columbus), Dec. 5, 1855, at 2 ("Judge Flinn went through the regular farce of opening the Criminal Court, on Monday, and adjourning without the transaction of business. The Prosecutor, Sergeant-at-arms, &c., all wanted their pay, and extra pay at that, for their arduous duties-and the high price of brandy. "). But cf. Evans v. City of Trenton, 24 N.J.L. 764, 767 (1853) (finding that an appointed prosecutor could not collect fees for "extra services" in addition to his salary because to do so "would soon introduce intolerable mischief").
121. See, e.g., George Rogers Taylor, The Transportation Revolution, 1815-1860, at 142 (1966).
122. Sen. Adam Huntsman, Report of the Judiciary Committee to Whom Was Referred a Bill To Amend the Judiciary System, in 2 Messages of the Governor of Tennessee, 1821-1835, at 294 (Robert H. White ed., 1952). It is not clear whether militia companies dominated appointment politics in other frontier states in the 1820s and 1830s. The Mississippi Constitution of 1817, for instance, allowed only white males who paid taxes or served in their county's militia to vote, suggesting that militias were politically powerful there as well. See Miss. Const. of 1817, art. III, § 1.
123. Lewis L. Laska, The Tennessee State Constitution: A Reference Guide 8 (1990).
124. Huntsman, 124, at 292.
125. Lewis L. Laska, A Legal and Constitutional History of Tennessee, 1772-1972, 6 Memphis St. U. L. Rev. 563, 604 (1976).
126. Tenn. Const. of 1834, art. VI, § 15 (justices of the peace); The Constitutional Debates of 1847 art. VII, § 1 (sheriffs). But not judges-proposals to elect judges were introduced and voted down five times at the 1834 Tennessee convention. N. Houston Parks, Judicial Selection-The Tennessee Experience, 7 Memphis St. U. L. Rev. 615, 624 (1977).
127. See Tenn. Const. of 1834, art. VI, §§ 3-5 (1853); Laska, 125, at 11.
128. See Mass. Const. of 1780, amend. XIX (1855); Samuel Eliot Morison, A HISTORY OF THE Constitution of Massachusetts 53-55 (1917).
129. 1 Mass. Debates, 19, at 704 (statement of Del. Henry W. Bishop).
130. 3 Mass. Debates, 19, at 186 (statement of Del. Richard H. Dana, Jr.); see, e.g., The Constitutional Debates of 1847 at 55 (statement of Del. Richard Frothingham, Jr.) (supporting reforms in order to transform "[w]hat is now distributed as patronage, as matter of favor, political or otherwise" and make it "at the option of all, as matter of right"); The Constitutional Debates of 1847 at 143 (statement of Del. Richard H. Dana, Jr.) (stating that a plan which allowed appointments would "increase the patronage of your legislature; that is to say, we shall increase the evil which already exists under the present system").
131. 1 Mass. Debates, 19, at 704 (statement of Del. Henry W. Bishop).
132. An Elective Judiciary, Sun (Balt.), July 27, 1850, at 2. Supporters of electing judges in other states also argued that local lay citizens were best able to evaluate legal skills. See, e.g., La. Debates, 18, at 751 (statement of Del. James F. Brent) ("The governor... is generally forced to depend on the representations of others. The people have a personal and direct knowledge of the qualifications of the candidate. There is nothing so purely local as the reputation of a lawyer.... ").
133. 1 Mass. Debates, 19, at 704 (statement of Del. Henry W. Bishop).
134. 2 Mass. Debates, 19, at 805 (statement of Del. Rufus Choate).
135. See, e.g., John H. Langbein, Renée Lettow Lerner & Bruce P. Smith, HISTORY OF THE Common Law: The Development of Anglo-American Legal Institutions 1014 (2006); W. Raymond Blackard, The Demoralization of the Legal Profession in Nineteenth Century America, 16 Tenn. L. Rev. 314, 314-15 (1940).
136. See, e.g., N.Y. Const. of 1846, art. VI, § 8 (allowing "[a]ny male citizen, of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability" to practice law); 1849 Wis. Acts 95, ch. 152 (requiring judges to admit to the bar any applicant who shows "that he is a resident of the state, and is of good moral character"). Wisconsin began electing its prosecutors a year earlier, in 1848. See Wis. Const. of 1848, art. VI, § 4.
137. Cf. Harlan F. Stone, The Lawyer and His Neighbors, 4 Cornell L.Q. 175, 179 (1919) (describing attorneys in the early nineteenth century as "nearer to constituting an exclusive privileged class in the new republic than any other group in the community").
138. James Warner Harry, The Maryland Constitution of 1851, at 48 (1902).
139. Md. Const. of 1851, art. V, § 3 ("The State's attorney shall perform such duties and receive such fees and commissions as are now prescribed by law for the attorney-general and his deputies.... ").
140. See 1 Md. Debates, 56, at 530. The proposal to abolish the office of Attorney General passed by a 45 to 14 vote. The Constitutional Debates of 1847 at 549.
141. The Constitutional Debates of 1847 at 540 (statement of Del. George Brent).
142. Mass. Const. of 1780
143. The Constitutional Debates of 1847 at 547-48 (statement of Del. Thomas B. Dorsey).
144. Harry, 140, at 18-19.
145. Report of Comm. on Grievances & Courts of Justice, Md. H. J., at 7 (1844).
146. See, e.g., 2 Md. Debates, 56, at 491 (statement of Del. William A. Spencer) ("Our Governors are regularly nominated by party caucuses and party cliques. Why? Because the entire patronage of the State has been in his hands. Every clerk, every register, every justice of the peace... all are dependent on him. "); 1 Md. Debates, 56, at 519 (statement of Del. J.W. Crisfield) (calling on delegates to "strip" from the Attorney General "the patronage now exercised under law"); The Constitutional Debates of 1847 at 541 (statement of Del. George C. Morgan) (declaring he could "see no good" from the system of county district attorneys, except that it would "create employment for the benefit of attorneys, without any compensation fixed or limited by law"). In Michigan, the 1850 constitution fixed the salaries of judges and prosecutors, thus preventing the legislature or the governor from enacting increases. See Mich. Const. of 1850, art. IX ("It shall not be competent for the legislature to increase the salaries herein provided. ").
147. See, e.g., Mr. Clark's Fitness for Office, Hagerstown Torch Light, Sept. 21, 1846, at 2 (accusing the Washington County district attorney of failing to prosecute "an active Federal partisan" for violating gambling laws when less politically connected defendants were fined).
148. 1 Md. Debates, 56, at 538 (statement of Del. Charles Jenifer).
149. Croswell & Sutton, N.Y. Debates, 12, at 769 (statement of Del. William G. Angel); accord Bishop & Attree, N.Y. Debates, 73, at 1006. William G. Angel, who spoke for the committee, was a Jacksonian Democrat who had previously served three terms in Congress. See Lucien Brock Proctor, The Bench and Bar of New-York 742-44 (New York, Diossy & Co. 1870). New York and Maryland were not the only states where convention delegates aimed to reduce gubernatorial appointment powers. See, e.g., Ky. Debates, 56, at 216 (statement of Del. Benjamin Hardin) ("[M]y colleague desires, and I think I shall go with him, to strip [the governor] of all power save that of appointing a secretary perhaps, or of giving entertaining parties to the legislature when they meet here.... ").
150. Croswell & Sutton, N.Y. Debates, 12, at 769 (statement of Del. William G. Angel). But cf. James Wilton Brooks, History of the Court of Common PLEAS OF THE City and County of New York 74 (New York, Werner, Sanford & Co. 1896) (noting in a discussion on the judge of the Court of Common Pleas in 1844 that "[a]s it was a local appointment, the jurisdiction of the Court being confined to the city of New York, it was the custom of the Governor to appoint the person agreed upon by the representatives of the city of New York, of his own party, in the Legislature"). If governors followed the same custom of deferring to the choice of the local legislators for district attorney appointments, the reaction against patronage politics may have been as much anti-legislative as anti-executive in nature.
151. Croswell & Sutton, N.Y. Debates, 12, at 770 (statement of Del. Conrad Swackhamer).
152. The Constitutional Debates of 1847 at 769 (Report of Committee No. 7, § 1) (emphasis added).
153. The Constitutional Debates of 1847 at 770-71 (statement of Del. George A. Simmons). Simmons had served several terms in the state assembly as a Whig. See John Stilwell Jenkins, History of Political PARTIES IN THE State of New-York 430, 437 (Auburn, N.Y., Alden & Markham 1846). There are echoes of the modern unitary executive theory in the Whigs' objections to prohibiting the governor from being able to remove district attorneys. Compare Bishop & Attree, N.Y. Debates, 73, at 1007 ("Mr. STOW hoped... it would not be imposed upon the Governor to see that the laws were faithfully executed. [The Governor's] powers had already been so restricted that he could not do much more than look on and wish that the government might do well. "), with Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) ("[T]he Court greatly exaggerates the extent of... Presidential control. Most important among these controls, the Court asserts, is the Attorney General's power to remove the [independent] counsel for good cause. This is somewhat like referring to shackles as an effective means of locomotion. " (citations, footnotes, and internal quotation marks omitted).
154. N.Y. Const. of 1846, art. X, § 1.
155. The Constitutional Debates of 1847 Other states also considered staggered or lengthened terms for district attorneys to guard against partisan influence. See, e.g., Report of the Committee on the Judiciary, in Journal, Acts and Proceedings of a General Convention of the State of Virginia 6 (Richmond, Va., William Culley 1850) (proposing seven-year terms for district attorneys).
156. Croswell & Sutton, N.Y. Debates, 12, at 770 (statement of Del. George A. Simmons).
157. Bishop & Attree, N.Y. Debates, 73, at 86, 100. In 1818, New York required district attorneys to collect recognizances, 1818 N.Y. Laws 307, but state courts gave district attorneys wide discretion over the manner of collecting the recognizances and allowed the district attorneys to earn a fee for each successful collection. See, e.g., People v. Allen, 2 How. Pr. 34 (N.Y. Sup. Ct. 1845); People v. Van Eps, 4 Wend. 387 (N.Y. Sup. Ct. 1830).
158. Croswell & Sutton, N.Y. Debates, 12, at 774 (Report of Committee No. 7, § 9). Another amendment, ultimately rejected, would have stipulated that the compensation received by district attorneys could not exceed the amount of fees they generated for the state treasury. The Constitutional Debates of 1847 at 773-74 (amendment offered by Del. David B. St. John).
159. The Constitutional Debates of 1847 at 774 (statements of Del. George A.S. Crooker and Del. Ira Harris). But cf. Mich. Const. of 1850, art. IX (prohibiting the legislature from increasing the salary of the attorney general during his term in office).
160. See, e.g., Jennifer L. Mnookin, Uncertain Bargains: The Rise of Plea Bargaining in America, 57 Stan. L. Rev. 1721, 1723 (2005) (reviewing Fisher, 101) ("In the early nineteenth century, prosecutors often combined their responsibilities with other forms of lawyering, and for such part-time prosecutors, quick guilty pleas provided more time for the rest of their (paying) clientele. "). This practice was not unique to state district attorneys-even U.S. Attorney General Edmund Randolph maintained a private practice. See and accompanying text.
161. See, e.g., Ark. Const. of 1836, amend. VIII (1848) ("That no member of the general assembly shall be elected to any office within the gift of the general assembly during the term for which he shall have been elected. "); Ill. Const. of 1848, art. III, § 29 ("No... attorney for the State... shall have a seat in the general assembly.... "); Va. Const. of 1850, art. IV, § 7 ("[N]o attorney for the commonwealth shall be capable of being elected a member of either house of assembly. ").
162. Alexis de Tocqueville, Democracy in America 91 (Arthur Goldhammer trans., Library of Am. 2004) (1835).
163. The Constitutional Debates of 1847 at 92. Tocqueville was stunned to learn that "[s]ome [state] constitutions provide for election of members of the courts and require them to submit to frequent reelection. " The Constitutional Debates of 1847 at 310. He ventured "to predict that these innovations [would] sooner or later lead to disastrous results.... " Mass. Const. of 1780
164. La. Debates, 18, at 749 (statement of Del. James F. Brent).
165. The Constitutional Debates of 1847 at 750 (statement of Del. James F. Brent); see also Ky. Debates, 56, at 360 (statement of Del. Larkin J. Proctor) ("It is a very difficult matter sometimes for the commonwealth attorney to carry through a prosecution successfully-not being a resident of the county, and not being cognizant of the facts attending a case that may arise.... ").
166. See, e.g., Colo. Const. of 1876, art. VI, §§ 16, 21 (requiring candidates for district attorney to be "an elector within the judicial district for which he is elected"); Ky. Const. of 1850, art. VIII, § 11 (requiring all "district, county, or town officers" to reside within their respective districts, counties, or towns); Md. Const. of 1851, art. V, § 4 (establishing a requirement for a district attorney to have resided for one year in the city or county he represents); State ex rel. Howard v. Johnston, 101 Ind. 223 (1885) (construing Article VII of the 1851 Indiana Constitution to require a prosecuting attorney to reside in the circuit for which he is elected); Territory ex rel. Parker v. Smith, 3 Minn. 240 (1859) (holding that six months' residence in a county was necessary to be eligible for election as district attorney). But see Va. Const. of 1850, art. VI, § 31 (requiring all county court officials except county or district attorneys to reside in the county or district where they were elected).
167. Ky. Const. of 1799, art. III, § 23.
168. See Ky. Debates, 56, at 360 (statement of Del. George W. Kavanaugh).
169. See, e.g., 1835 Ky. Acts 181, § 14 (stating that "[i]n all motions or suits brought by the [county road] commissioners... the attorney for the commonwealth, if in the circuit court, and the county attorney, if in the county court, shall, ex officio, prosecute the same").
170. See, e.g., Tesh v. Commonwealth, 34 Ky. (4 Dana) 522, 526 (1836) ("It is our opinion, however, that attorneys for the county courts, to be appointed by those courts exclusively, constitute one class; and that attorneys for the Commonwealth, for superior courts of more general, criminal jurisdiction, belong to the other class. ").
171. See Ky. Debates, 56, at 356.
172. The Constitutional Debates of 1847 (statement of Del. Silas Woodson); see also Mass. Const. of 1780 at 359 (statement of Del. Beverly L. Clarke) ("There are counties where [county attorneys] may not be necessary.... ").
173. The Constitutional Debates of 1847 at 356-57 (statement of Del. Squire Turner); see also Mass. Const. of 1780 at 358 (statement of Del. Elijah F. Nuttall) (describing the county attorney as "an officer who is to supervise... the morals of the county"); The Constitutional Debates of 1847 at 360 (statement of Del. George W. Kavanaugh) ("[I]n every county of the state, there are laws operating which relate to the state revenue, in regard to tavern licenses, and to peddling clocks, watches, and other goods, which it is the duty of the county attorney to enforce. ").
174. See, e.g., Gross v. Jones, 60 Ky. (3 Met.) 295, 297 (1860) (construing an act that entitled county attorneys who prosecuted certain "public offenses" to a share of any monetary recovery as "intended... to introduce promptitude and diligence in their prosecution"); Steinberg, 1, at 579 (describing private prosecution as "an ineffective means of law enforcement in the matter of breaches of public order").
175. Ky. Debates, 56, at 357 (statement of Del. Squire Turner).
176. Mass. Const. of 1780
177. See, e.g., Clarke v. State, 23 Miss. 261, 262 (1852) (holding that when a trial court quashed an indictment in 1834, it was "a matter entirely discretionary with the district attorney, who had the power to enter a nolle prosequi"); People ex rel. Peabody v. Att'y Gen., 13 How. Pr. 179, 3 Abb. Pr. 131, 22 Barb. 114, 117 (N.Y. Sup. Ct. 1856) ("The only remedy [for crimes without a specific victim] is by an action in the name of the people. It is a public prosecution, instituted and conducted by the public prosecutor under his official obligation and responsibility. "); see also Steinberg, 1, at 580 (noting a "distinct increase in the discretionary power of the district attorney" between 1850 and 1874 in Pennsylvania); cf. People v. Allen, 2 How. Pr. 34 (N.Y. Sup. Ct. 1845) (finding that the district attorney had the discretion to choose in which court to sue a defendant on a recognizance).
178. Ky. Debates, 56, at 360 (statement of Del. Silas Woodson); see also Mass. Const. of 1780 at 361 (statement of Del. Richard L. Mayes) ("We are electing all the other officers in the state, and we may as well elect [the county attorney]. ").
179. The Constitutional Debates of 1847 at 359 (statement of Del. Larkin J. Proctor). If a county could choose to have a county attorney only when necessary, election would not be a practical means of selecting an attorney because "the people could not determine whether they would have the county attorney or not, until they had had a special election for the purpose. " The Constitutional Debates of 1847 at 361 (statement of Del. Richard L. Mayes).
180. The Constitutional Debates of 1847 at 361 (statement of Del. Richard L. Mayes).
181. The Constitutional Debates of 1847 at 360 (statement of Del. Squire Turner).
182. Ky. Const. of 1850, art. VI, § 1.
183. The Constitutional Debates of 1847, at 793-94 (Arthur C. Cole ed., 1919) [hereinafter Ill. Debates] (statement of Del. William R. Archer).
184. The Constitutional Debates of 1847 at 794-95 (statement of Del. O.C. Pratt).
185. The Constitutional Debates of 1847 at 794 (statement of Del. William R. Archer); see also Mich. Debates, 56, at 520 (statement of Del. Alexander R. Tiffany) ("How, then, would it be if you had not a prosecuting attorney residing in the county? For five months out of the six you must be left without the aid of his services.... ").
186. Ill. Debates, 185, at 794 (statement of Del. William R. Archer); see also Mass. Const. of 1780 at 795 (statement of Del. James Brockman) (pointing out that the circuit attorneys "did not... think it worth their time to come" to Brown County, where Brockman lived).
187. The Constitutional Debates of 1847 at 795 (statement of Del. O.C. Pratt); see also Mich. Debates, 56, at 520 (statement of Del. Alexander R. Tiffany) ("You cannot find a man that can come into court and carry a case through unless he has been previously acquainted with the case. "). California went so far as to effectively fine an absent district attorney and give the money to the lawyer the court appointed to represent the state. See 1850 Cal. Stat. 112, 113.
188. Ill. Debates, 185, at 795.
189. George Stillman Hillard, The Letters of Silas Standfast, to His Friend Jotham, in DISCUSSIONS ON THE Constitution Proposed to the People of Massachusetts by the CONVENTION OF 1853, at 81, 138-39 (Boston, Little, Brown & Co. 1854); see also Mich. Debates, 56, at 87 (statement of Del. Joseph R. Williams) ("If society relies upon a prosecuting attorney, and he is made elective... he may owe his election to a dozen votes of men whom it is his duty to bring to justice. ").
190. Hillard, 191, at 139 ("The qualifications of... a district attorney... are professional rather than political. They rest upon professional attainments, which the general public can only estimate by their results, and from the report of their professional brethren. ").
191. Ky. Debates, 56, at 362 (statement of Del. John Louis Hargis).
192. Mississippi, Arkansas, and Texas. See infra Appendix.
193. Tennessee held a constitutional convention in 1834, North Carolina in 1835, Florida in 1838, and Texas in 1845. See 6 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies NOW OR Heretofore Forming the United States of America 3426 (Francis Norton Thorpe ed., 1909) (Tenn.); 5 The Constitutional Debates of 1847 2794 (N.C.); 2 The Constitutional Debates of 1847 664 (Fla.); 6 The Constitutional Debates of 1847 3547 (Tex.).
194. See, e.g., Ala. Const. of 1819, art. V, § 18; Ga. Const. of 1798, art. III, § 3; N.C. Const. of 1776, art. XIII; Tenn. Const. of 1834, art. VI, § 5; Tex. Const. of 1845, art. IV, § 12.
195. La. Const. of 1812, art. III, § 2.
196. The Constitutional Debates of 1847 art. III, § 9.
197. The Constitutional Debates of 1847 art. II, § 8.
198. Scalia, 5, at 62-63 (noting that the Louisiana Senate allotted fewer than one-fifth of its seats to New Orleans, which constituted one-half of the state's population).
199. Hargrave, 11, at 3-4.
200. La. Debates, 18, at 770.
201. See Mass. Const. of 1780 at 503 (statement of Del. Thomas M. Wadsworth) (speaking in favor of property qualifications).
202. See Mass. Const. of 1780 at 272 (statement of Del. C.M. Conrad) (declaring that judges "ought not to be involved in the party politics").
203. See Mass. Const. of 1780 at 19-20 (statement of Del. Bernard Marigny) (proposing to hold state elections at a time when transients would not be in New Orleans); The Constitutional Debates of 1847 at 542 (statement of Del. C.M. Conrad) (advocating for legislative representation to be allocated by wealth, rather than population).
204. The Convention, Jeffersonian Republican (New Orleans), Apr. 25, 1845, at 2.
205. Robert M. Bastress, The West Virginia State Constitution: A Reference Guide 8 (1995).
206. Hargrave, 11, at 4.
207. See James Lowell Underwood, 1 The Constitution of South Carolina 18 (1986); see also S.C. Const. of 1865, art. II, § 2 (providing for an elected governor for the first time in the state's history).
208. See, e.g., Mich. Const. of 1850, art. VI, §10; 1852 Va. Acts §14, at 66-67; Amendment to the Judiciary Act, § 33, 3 How. Pr. 143 (N.Y. 1847); Welsh v. Mechem, 2 P. 816 (Kan. 1884); State v. Bass, 12 La. Ann. 862, 862-63 (La. 1857); Commonwealth v. King, 74 Mass. (8 Gray) 501 (1857); Keithler v. State, 18 Miss. (10 S. & M.) 192 (1848); In re Prosecuting Att'y, 2 Ohio Dec. Reprint 602, 603, 4 West L. Monthly 147, 148 (Ct. Com. Pl. 1861); Commonwealth v. McHale, 97 Pa. 397 (1881). It is also worth noting that at the federal level, the Circuit Justice was given the power to fill vacant U.S. Attorney positions until the President nominated a successor. See In re Farrow, 3 F. 112 (C.C.N.D. Ga. 1880).
209. See, e.g., Territory ex rel. Klock v. Mann, 120 P. 313, 314 (N.M. 1911); 3 Mass. Debates, 19, at 390 (statement of Del. Benjamin F. Butler) ("[T]he governor, with the advice and consent of the Council, may appoint suitable persons to fill such vacancies until an election by the people. " (quoting the Report of the Special Committee upon Justices of the Peace).
210. McConville & Mirsky, 101, at 197.
211. Matthew Hale Smith, Sunshine and Shadow in New York 542 (Hartford, Conn., J.B. Burr & Co. 1868).
212. See, e.g., McConville & Mirsky, 101, at 197-98; see also Edwin G. BURROWS & Mike Wallace, Gotham: A History of New York City to 1898, at 777 (1999) ("[A]lcohol purveyors ranging from merchant importers to waterfront barkeepers mobilized into a formidable pressure group-the Liquor Dealers Protective Union had eight hundred members by 1855-and sponsored mass meetings to mobilize antiprohibition sentiment. ").
213. See, e.g., McConville & Mirsky, 101, at 198; Harrie Davis, Jerome vs. Crime, 9 Pearson's Mag. 600, 602 (1903) ("[T]he indictment died a lingering death in a pigeonhole of some official's desk. ").
214. McConville & Mirsky, 101, at 314.
215. The District-Attorney's Office, N.Y. Times, Nov. 23, 1883, at 4.
216. Editorial, N.Y. Times, May 17, 1883, at 4.
217. The District Attorney's Neglect, World (N.Y.), June 22, 1889, at 4. Other elected judicial officials, such as the clerk of the court, were similarly captured by party politics. See, e.g., Divorce Frauds, Nation, Mar. 13, 1884, at 227 ("Clerks of court, in the States where the elective system has been thoroughly applied to the administration of justice, are politicians or henchmen to politicians, and owe their appointment and their hold on office to 'influence' of some sort. ").
218. Citizen, Letter to the Editors, Nomination of District Attorneys, Pub. Ledger (Phila.), Aug. 16, 1850, at 4.
219. Some Objections to a Joint Resolution Passed at the Last SESSION OF THE Legislature, and About To Be Submitted at the Approaching Session, Recommending to the People of Pennsylvania an Elective Judiciary 37 (1849). This anonymous pamphlet was widely believed to have been written by Charles J. Ingersoll, a prominent Philadelphia lawyer. See Burton Alva Konkle, The Life of Chief Justice ELLIS Lewis, 1798-1871, at 156, 158 n.1 (1907).
220. La. Const. of 1852, tit. IV, art. 83.
221. Samuel C. Hyde, Jr., Pistols and Politics: The Dilemma of Democracy in Louisiana'S Florida Parishes, 1810-1899, at 204 (1996).
222. Shugerman, 27, at 145-46 (describing how judicial elections attracted "more political personalities to the bench" and recounting one commentator's outrage that judges would be ousted from office for ruling on "principles of law rather than in obediance to a popular demand").
223. 1817 Md. Laws 155-56; see Md. Const. of 1776, art. XLVIII ("[T]he Governor, for the time being, with the advice and consent of the Council, may appoint... the Attorney-General... and all other civil officers of government (Assessors, Constables, and Overseers of the roads only excepted).... ").
224. 1 Md. Debates, 56, at 283.
225. 2 Md. Debates, 56, at 9 (statements of Del. Thomas B. Dorsey and Del. John Newcomer). Dorsey recounted how the fee-based compensation system for prosecuting attorneys was insufficient to attract quality candidates to the post. He noted that "the present Attorney had had great difficulty in some of the counties, in finding suitable persons who would serve; and in some cases persons had been appointed who never would have been thought of, if the proper persons could be induced to accept. " The Constitutional Debates of 1847 at 9. The latter concern was motivated not only by the instability produced by the "continual recurrence to the ballot box, " The Constitutional Debates of 1847 at 10 (statement of Del. Francis P. Phelps), but also the cost of conducting additional elections. See Mass. Const. of 1780 at 13 (statement of Del. George W. Sherwood) ("Special and repeated elections were inconvenient as well as expensive.... ").
226. The Constitutional Debates of 1847 at 10 (statement of Del. William A. Spencer).
227. The Constitutional Debates of 1847 at 11 (statement of Del. Francis P. Phelps).
228. The Constitutional Debates of 1847 at 10.
229. The Constitutional Debates of 1847 at 11.
230. See infra Appendix.
231. See, e.g., Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 9 (2002) (discussing the Washington Constitution drafters' reliance on the constitutions of Oregon, Indiana, and California).
232. The New Constitution-The Tendency of Its Power, Wkly. Nw. Gazette (Galena, Ill.), Sept. 17, 1847, at 2 (quoted in Shugerman, 26, at 1145).
233. See History of Reform Efforts: Formal Changes Since Inception, Am. Judicature Soc'y, http://www.judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm (last visited Apr. 24, 2011).
234. See accompanying text for theories explaining elected judges.
235. Connecticut, Delaware, New Jersey, and Rhode Island have all retained appointed prosecutors. See Jacoby, 3, at 28 & n.12.