The Yale Law Journal

April 2012

The Origins of the Elected Prosecutor

Michael J. Ellis

121 Yale. L.J. 1528. 

The United States is the only country in the world where voters elect prosecutors. But the American prosecutor did not start as an elected official. After the Revolutionary War, most states gave their governors, judges, or legislators the power to appoint prosecutors. Starting with Mississippi in 1832, however, states adopted new constitutions, statutes, or amendments that made prosecutors elected officials. By 1861, nearly three-quarters of the states in the Union elected their prosecutors.

This Note is the first detailed study of when, how, and why American state and local prosecutors became elected officials. It shows that fairness and efficiency concerns were largely absent from the debates over whether to make prosecutors elected. Instead, supporters of elected prosecutors were responding to governors and legislators who used the appointment system for political patronage. As prosecutors gained discretionary power over criminal prosecutions, mid-nineteenth-century political reformers believed it was crucial to remove prosecutors from partisan politics. Many also hoped elected prosecutors would be more accountable to the voters and the local communities they served. Not long after prosecutors became elected, however, prosecutors quickly became involved in and co-opted by partisan politics.