Local Prosecutors And The Attorney General

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4National Association of Attorneys GeneralCommittee on the Office of Attorney General THE PROSECUTION FUNCTION:Local Prosecutors and the Attorney General1974Price 3.00Any publication or duplication of this reportwithout the express written permission ofthe National Association or Attorneys General is prohibited.II

iiiCOMMITTEE ON THEOFFICE OF ATTORNEY GENERALo00000000ChairmanHonorable Robert B. MorganAttorney General of North CarolinaVice ChairmanHonorable Richard C. TurnerAttorney General of Iowa"'Other MembersHonorable Arthur K. BoltonAttorney General of GeorgiaHonorable Chauncey H. Browning, J1'.Attorney General of West VirginiaHonorable John C. DanforthAttorney General of MissouriHonorable Larry DerryberryAttorney General of OklahomaHonorable J olm P. MooreAttorney General of ColoradoHonorable Vernon B. RomneyAttorney General of UtahHonorable Warren' B. RudmanAttorney General of New HampshireHonorable Francisco de Jesus-ShuckAttorney General of Puerto RicoHonorable A. F. SummerAttorn0Y General of Mississippi000000000Executive DirectorPatton G. Wheeler1516 Glenwood AvenueRaleigh, North Carolina 27608

!ItivvOFFICERS AND EXECUTJVE COMMITTEEOF THENATIONAL ASSOCIATION OF ATTORNEYS GENERALPresidentHonorable Robert W. WarrenAttorney General of \VisconsinPresident-ElectHonorable Robert H. QuinnAttorney General of NlassachusettsVice-PresidentHonorable Robert B. IvlorganAttorney General of ,'.lorth CarolinaImmediate Past PresidentHonorable Gary K. NelsonAttorney General of ArizonaOther Executive Committee MembersHonorable Clarence A. BrimmerAttorney General of WyomingHonorable Andrew P. MillerAttorney General of VirginiaHonorable Jolm C. DanforthAttorney General of MissouriHonorable W. Anthony ParkAttorney General of IdahoHonorable Larry D. DerryberryAttorney General of OklahomaHonorable Warren B. RudmanAttorney General of New HampshireHonorable Bichard J. IsraelAttorney General of Rhode IslandHonorable Kermit A. SandeAttorney General of South DakotaFOREWORDI!ttThis Beport embodies all the major findings pertaining to local prosecutorswhich the Committee on the Office of Attornev General of the National Association of Attorneys General has gathered over fo"ur years of research. It is the mostcomprehensive report ever published on this office, which is a vital part of thecriminal justice system.In 1971, the Committee on the Office of Attorney General, in its publicationThe Office of Attorney General, pointed out that:Virtually no primary data on prosecutors are available from any source. Noone can say with certainty how many prosecutors Serve what percent of thetime; how many employ assistants; what prosecutors' relationships to AttorneysGeneral are, or what are their relationships to local law enforcement officers. Similarly, there have been few efforts to define prosecutors' attitudes toward state orlocal officials, or to determine what improvements they consider desirable, in thecriminal justice 1 ystem. Recommendations are being made by many groups onthe basis of data that are inadequate, obsolete, or simply not available.To meet this need, COAG undertook a series of studies of local prosecutors. In1970, a detailed questionnaire resulted in 636 responses, which were analyzed bycomputer. These probed such basic areas as jurisdiction and population served,staff sizes and caseloads, budgets and salaries, training programs attended, andattitude to·ward the Attorney General. Hesults were published in the COAG reports, The Office of Attorney General (1971) and Survey of Local Prosecutors(1972).In 1973, COAG conducted a similar survey. Questionnaires were sent to the2,672 county and district prosecutors in the nation. One thousand responses werecoded for computer analysis. This constituted a return of 37 percent, higher thanthe 1970 response of 24 percent. All states and territories but one were represented. Not only were responses to thirty . two questionnaire inquiries analyzed bythe computer, but extensive cross-tabulations were ,,1:;8 performed. The resultswere published in the COAG publication, Survey of Local Prosecutors: DataConcerning 1000 Local Prosecutors (1973). This study is to date the most extensive survey of local prosecutors ever conducted, not only in the large number ofparticipating prosecutors, but also in the depth of its inquiry.In addition, the Committee on the Office of Attorney General has studiedprosecutor training and assistance programs among the various states. Information has been gathered through questionnaires sent to agencies and organizationssponsoring such programs, from copies of grant applications to the Law Enforcement Assistance Administ;'ltion and state planning agencies, and from othersources as available. Information was published as part of The Office of AttorneyGeneral. This was subsequently updated and expanded, and a research reportProsecutor Training and Assistance Programs was published. In 1973, an updatedand enlarged version of the 1972 report was published, and it contained information on programs in all fifty states and three territories.The 1971 COAG publication, The Office of Attorney General, discussedthe development and duties of the office of local prosecutor, especially as it related to the Attorney General's functions. This report also discussed case lawdefining the Attorney General's relationsil:? to prosecutors, and their respectiveroles in appeals.}1t t!tI"\!II

f1t.viviiTable of ContentsThis publication, The Prosecution Function: Local Prosecutors and the Attorney General, incorporates information and analyses from these previous publications, plus additional material. It is intended to provide a factual descriptionof the office of prosecutor and to make significant results of these surveys available to a wider audience. It also includes information on the Attorney General'sauthority to initiate or intervene in local prosecutions.Part of the material herein is derived from studies funded by the Law Enforcement Aasistance Administration. The fact that LEAA furnished such financialsupport does not necessarily indicate its concurrence in the statements or conclusions herein. Mr. C. Edward Alexander, II, had primary responsibility forCOAG's 1973 reports on prosecutors and for this report.1Committee on the Office of Attorney General . . . iiiOfficers and Executive Committee . ivF ore\vord . vTable of Contents . . . viiList of Tables . viiiAttorney General Robert Morgan, ChairmanCommittee on the Office of Attorney GeneralMarch,19741. The Prosecution Function .Development of the Office . .Duties of the Prosecutor . . . .Distribution of Activities.Defender Systems . .112342. Organization, Staff and Salaries . . . . .Number of Prosecutors . ,. .Selection, Term and Experience . .Jurisdiction and Population Served . . .Full-Time and Part-Time Comparisons .Staff .Budgets .Prosecutors' Salaries .77788910113. Training and Assistance Programs . . .Need for Programs .Sponsors of Programs . .Staffs, Budgets and Grants .Publications . . .Technical Assistance .Training Programs .Legislative Activities .National Programs . , .1212131617171818184. The Attorney General's Authority in Local Prosecutions .Authority to' Initiate Prosecutions . .Authority to Intervene or Supersede in Local Prosecutions . . .The Attorney General's Common Law Powers in Prosecutions .212124285. The Relationship Between Prosecutors and Attorneys General . . .Need for Cooperation .Working Relationships .Attitude Toward the Attorney General .Relationship in Appeals . . .The Attorney General's Role .Procedures on Transfer of the Case . . . .Statewide Coordination of Prosecution . ,.: .31313132333335370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .J!1Ift·1!I,

1viiiList of Tables'1. Local Prosecutors with Criminal Jurisdiction . . . .Number of Full-Time Staff Attorneys . :, .Apnual Budgets . . .Annual SaJary of Prosecutors .Sponsors of Training and Assistance Programs by State .Prosecutor Training and Assistance Activities by State .May the Attorney General Initiate Local Prosecutions? .8. Attorney General's P'1wers in Proceedings Initiated by theLocal Prosecutor .9. Frequency of Requesting Advice from the Attorney General .10. Attorney General Appears for State in Criminal Appeals .11. Working Relationships in Appeals . THE PROSECUTION FUNCTION510101114152125323436The American Bar Association characterizes the prosecution and defensefunctions as "advocacy within theframework of the adversary system,"saying that:The adversary system which is central toour administration of criminal justice is notthe result of abstract thinking about the bestmeans to determine disputed questions oflaw and fact. It is the result, rather, or theslow evolution from trial by combat or bychampions to a less violent form of testingby argument and evidence.]The prosecutor, the defense attorney, and the judge are indispensableelements of this system. The prosecutorexercises, additionally, the criticalpower of determining what cases willcome before it:. . [TJhe power of the prosecutor toinstitute criminal prosecutions vests in himan authority in the administration of criminaljustice at least as sweeping as, and perhaps greater than, the authority of the judgewho presides in crimim:tl cases. .,. [TJheprosecutor is vested with virtually unreviewable power as to the persons to beprosecuted or not. 2Development of the OfficeThe American system of. public prosecution has developed differently fromthe experience in England and on theContinent. In 1"10St western Europeancountries, for example, the prosecutoris usually appointed rather than elected,and he is usually a career official ratherthan a one or two-term office holder.The prosecutor has a closer relationship to the court and is considered acourt officer. Authority stems from thecentral government rather than from alocal unit.England has a peculiar system, withthree types of prosecutions. In 1879,the office of Director of Public Prosecutions was established, thus ending"h'aditional aclllerence to the doctrinethat under English law the detectionand prosecution of crime was basicallythe responsibility of private citizens."3This right is preserved, and comprisesthe first type of prosecutions, the second type is prosecutions brought bypolice, who may conduct courtroomproceedings themselves or engage private attorneys. The third type is casesbrought by the Director of Public Prosecutions, a central government officerresponsible to the Attorney General. Heprosecutes offenses punishable bydeath and other cases which appear tobe of importance to him. The Directoralso plays an important role in coordinating the other types of prosecutionsand is often called on for advice by thepolice.'1America has long embraced the concept of public prosecutors, althoughsome states permit private parties tobring criminal actions. Rather than retaining centralized prosecution functions, states generally have diffusedthem among county or district prosecutors, most of whom are locally-electedand not responsible to any centralauthority. As one state court said, "Theoffice of prosecuting attorney has beencarved out of that of Attorney-Generaland virtually made an independent of· "5f lce.The office of local prosecutor hasdeveloped differently in the differentstates and territories. Some jurisdictionshave no local prosecutor; the AttorneyGeneral handles local as well as appellate prosecutions. Some have attorneysserving a judicial district. A few haveboth county and dish'ict attorneys.Additionally, most jurisdictions havecity attorneys or corporation counsel,who may handle some criminal as wellas civil matters. This study excludes cityattorneys from consideration, as their

The Prosecution Function2duties are less relevant to AttorneysGeneral.Even the titles of local prosecutorsvary. They are known in various jurisdictions as county attorneys, districtattorneY , state's attorneys, prosecuting attorneys, circuit attorneys, solicitors, Commonwealth's attorneys, andThe Prosecution Functionothers.Table 1 shows the titles, area served,selection method and the term of localprosecutors with criminal jurisdiction.This emphasizes the' diversity amongthe states in the way this office is organized.TABLE 1 (cont.): LOCAL PllOSECUTOHS WITH CRIMINAL JURISDICTIONTitlcNebraska .Nevada .New Hampshire .New Jersey 'HH'"TABLE 1: LOCAL PROSECUTORS WITH CRIMINAL JURISDICTIONTitleAlabama . District AttorneyAlaska . (No LocalProsecutor)Arizona . County AttorneyArkansas . District Prosecuting AttomeyCalifornia . . District AttorneyColorado . District AttorneyConnecticut . States AttorneyChief State'sAttorneyDelaware . (No LocalPr03ecutor)Florida . State AttorneyGeorgia . District AttorneyGuam . (No LocalProsecutor)Hawaii . County or CityAttorneyIdaho . ProsecutingAttorneyIllinois . State's AttorneyIndiana . ProsecutingAttorneyIowa . County AttorneyKansas . County AttorneyKentucky . County AttorneyCommonwealthAttorneyLouisiana . District AttorneyMaine . Connty AttorneyMaryland . State's Attom'yMassachusetts . District AttorneyMichigan . ProsecutingAttorneyMinnesota . County AttorneyMississippi . District AttorneyCounty Pmsecuting Attorneylvhssouri . ,. ProsecutingAttorneyMontana . County AttorneyAreaNumberof .A.)CountyJudicial District1419ElectedElected4CountyJudicial DistrictCounty584441ElectedElectedChief State'sAttorney(N.A.)(N.A.)(N.A.)(N.A)Judicial DistrictJudicial District(N.A.)2282043(N.A.)4ElectedElectedElectedH . Samoa .South Carolina .4CoulltyJudicial ectedElectedElected22County AttorncyDistrict AttorneyCOllnty AttorneyCounty Prosec:ulorDistrict Attornc:yDistrict AttorneyDistrict Attorne)'State's AttorneyProsecutingAttorneyDisb'ict AttorneyDi;trict AttorneyDistrict AttorneyDistrict Attorney(No LocalProscculor)(No LocalProsecutor)SolicitorSouth Dakota . State's AttorneyTennessee . District AttorneyGerwrJ.lTexas . State's AttorneyDistrict AttorneyUtah . Coun y AttorneyVermont . State's Attorne}'Virgin Islands . Assistant AttorneyGeneralVirginia . , . CammonweallhAttorneyWashington . , ProsecutingAttorney'Nest Virginia . ProsecutingAttorneyvVisconsiIlDistrict AttorneyWyoming . County and Prosecuting Attorney444,!105Oklahoma .Oregon .Pennsylvania .Puerto RiceRhode J ];.lld .4County120. H " . H . 2Elected orAppointedElectedCountyNew Mexico .New York .North Carolina .North Dakota .Ohio4Judicial District(N.A.)244.' . . . . 01 DistrictJudiCial DistrictCountyCounty and StateI udicial DistrictCuuntyCountyJudicial untyCounty93171021Judicial m(Years)ElectedElectedElectedGovernor withconsent of ,)(N,A.)(N.A.)(N.A.)(NA.)Judicial District166726EjectedEjectedElected4CountyJudicial District366728CountyDistrictCountyCountyVirgin Islands22.29129County or oun y23ElectedElected24The duties of prosecutors are prescribed primarily by statute, althoughthe constitutions of some states establishthe office and may prescribe someoc.l:ies. The statutes in mo t states mayhave many provisions dealing withspecific powers or duties of the prosecuting attorney. Certain narrow provi-. . 13HowSelectedDistrictCountyCoulltyJuchcial District(N-A.)Duties of the Prosecutor2Numberof UnitsArea144442Indef.4sions may center on jurisdictionalboundaries; or they may require theprosecutor to act in case of specificviolations, such as when liquor laws orpublic health laws are involved. In addition, there is usually found a sectiondealing with the general powers of theprosecutor, It is this general sectionwhich in fact sets forth the wide bound-

94TheProsecution FU11ctionaries of the prosecutorial function.A typical example of the basis ofauthority for Ite office is Kentucky,which pro, ides by constitution that aCommonwealth's Attorney shall be elected in each Circuit court district andshaIl serve for a six-year ternl. Thestatutes charge him with attending eachcircuit court held in his district, andprosecuting all violations of the crilninaland penal laws therein. Kentucky'sConstitution also provides that a countyattorney shall be elected in each countyfor a four-year term. He is required bystatute to aid the Commonwealth's attorney and to:[Alttend to the prosecution, in courts inferiorto the circuit court, of all criminal and penalcases in his county in which the Commonwealth or the county is interested, exceptthose cases in a police court for which thereis a prosecuting attorney who has the dutyto prosecute such cases.6As part of his general authority toprosecute, the prosecuting attorney enjoys a wide discretionary power, andmost state statutes set no restrictions onsuch prosecutorial discretion. The prosecutor determines whether or not toinitiatc criminal proceedings, andonce a case is under way, he can use hisinfluence to mitigate the penalties whichtlle law might otherwise prescribe. Thefinal authority of the prosecutor tobring or not to bring a criminal actionhas been labeled the "power of selectiveenforcement.'7 It is natural that such awide pO\ver has been criticized. Negative observations center primarily on alack of consistency in applying the law.This can take place either in a prosecutor's disregarding certain laws, or in hisenforcing a given law against someviolators but not others. Those criticalof the prosecutor's discretion believethat guidelines must be established toinsure consistency. "Prosecutors shouldbe required to make and to announcerules that will guide their choices, stating as far as practicable what will notbe prosecuted," suggests one expert. sOther observers have urged legislativecontrols, or have suggested that the Attorney General might direct his attention toward unstructured prosecutorialdiscretion. 9Prosecutors defend their discretionary power and the exercise of it. Theypoint to loosely drafted laws and thefact that they are forced to use theirdiscretion as a substitute for more definite laws. For example, some statuteslllay be overly broad, and prosecutorsfeel that they are justified in mitigatingthe harsh effects \vhich would result ifsuch laws were enforced in all cases ofIllt're technical violations. Pragmaticallyspeaking, prosecutors feel that theyare in the best position to analyze acase in terms of evidence and strength,and that cases which are not likely to bewon should be abandoned in order tosave manpower for cases which can besuccessfully prosecuted.)OEven after the prosecutor makes adecision to prosecute, he may chooseto seek conviction for a lesser offensethan the one originally charged. In return for the reduction in the charge,the defendant has usually changed hisplea from "not guilty" to "guilty." Suchan arrangement is known as plea bargaining, and it constitutes another facetof the prosecutor's discretionary power.As with the power to charge or notto charge, the widespread practice ofplea bargaining has met with criticism.Strict legal proponents feel that once aviable charge has been made, it shouldbe prosecuted, and the prosecutorshould not compromise by letting a defendant plead guilty to a lesser offense.Others see possible dangers to the defendant, asserting that plea bargainingthreatens the fundamental rights of lrialby jury and affronting one's accusers.The National Advisory Commission onCriminal Standards and Goals hasstrongly recommended the total abolishment of plea bargaining:As soon as possible, but in no event laterthan 1978, negotiations between prosecutorsThe Prosecution Functionand defendants-either personally or throughtheir attorneys-concerning concessions tobe macle in return for guilty pleas should beprohibitcd. llNevertheless, it is estimated that 90to 95 percent of all criminal convictionsand 70 to 85 percent of all felony convictions are obtained by guilty pleas,and that plea bargaining has been instrumental in most of these,J2 Prosecutorsfeel that plea bargaining is necessary toreduce severe case backlogs and to bringdefendants to justice speedily. The Supreme Court has also sanctioned pleabargaining, and described it as "notonly an essential part of the process,but a highly desirable part."13 Accordingto the Court, the Fifth Amendment doesnot prohibit judges and prosecutorsfrom accepting guilty pleas to lesserincluded offenses or from reducingcharges in return for a guilty plea.It is apparent that despite criticism,the prosecutor's wide powers have notbeen weakened, nor are they likely tobe hampered in the near future. The National Advisory Commission has admitted that its recommendation on theelimination of plea bargaining falls inthe minority position. J.j Likewise, mostother critics fall in the minority whencomparcd to the vast numbers ofjudges, attorneys, and prosecutors whodo favor retention of the prosecutor'sdiscretionary powers. Therefore, theprosecutor fills a very large and important role in the criminal justice system.Whether the prosecutor continues toplay such a large role will depend uponhow \Nell he can adapt to modern needs.The National District Attorneys Association has stated:If our criminal justice system is to succeed in the years ahead to curb crime andviolence in America, the role of the localprosecutor will have to be a highly successful instrument among the other clements ofthe system. Although it is clear that the localprosecutor possesses great potential in helping to combat crime in America, it has alsobecome increasingly evident that hl methods and techniques must be improved5if 11e is to fulfill this potential in the struggle that lies ahead. 15Distribution of ActivitiesLimited data are available on prosecutors' activities. The Committee on theOffice of Attorney General's survey ofone thousand prosecutors asked them toestimate the percentage of their offices'work concerned with criminal, civil,administrative and other matters. Theresponses sho\v clearly that criminalwork occupies most time. Over threefourths of the respondents, 78 percent,spend over half their time on criminalmatters. The median percent of timespent on criminal matters is 75 percent.By contrast, the median amount of timespend on civil matters is slightly under10 percent, and the median amount oftime spent on administrative matters iseven less.Prosecutors, like Attorneys General,render advice to other officials. Almostall prosecutors responding to COAG'ssurvey report that they often renderadvice to police and sheriffs. Advisingpolice often are 87 percent; 10 percentseldom advise police; and only 3 percent never advise police. Advisingsheriffs often are 87 percent; seldom, 9percent, and never, only 4 percent. Thefrequency of advice by prosecutors toother persons and groups is also interesting. Various city officials are advisedoften by approximately 27 percent ofall prosecutors; court clerks are advisedoften by 47 percent; various county officials are advised often by 58 percent;school boards are advised often by 16percent; and private citizens receive advice frf'qucntly from 60 percent.Defender SystemsIn recent years, there has been anemerging trend toward county andstatewide public defense systems. It isgenerally accepted that the Americansystem of criminal justice rests on threebasic assumptions. First, that the ac-I!

i6The Prosecution Functioncused is presumed innocent; second, thatthe accusing party has the burden ofproving guilt which must be establishedin an adversary proceeding; third, thatboth adversaries must be aided by capable and effective advocates. I6 Seriouscommitment to the third principle didnot begin at the state level until 19 3when the Supreme Court decided inGideon v. Wainwl'ight I7 that the state isobligated to provide counsel in cases involving serious crimes. Since then, manystates and localities have begun to devise criminal defense systems. Anotherdecision has added impetus to the trend.In Argel'singel' v. Hamlin,I8 the SupremeCourt held that no indigent person maybe incarcerated as the result of a criminal trial at which he was not given theright to be represented by publicallyprovided defense counsel.The ABA Standards relating to Providing Defense Services were approvedin 1968. They are based on five generalprinciples: (1) that the objective of thebar should be to assure that all personsreceive necessary counsel in criminalproceedings and that the public be educated as to this objective; (2) that counselbe provided in a systematic and wellpublicized manner; (3) that each jurisdiction require by law the adoption of aplan for the provision of counsel andthe law allow selection from a range ofplans suitable to varying local needs; (4)the integrity of the lawyer-client relationship should be guaranteed, and (5)a plan should provide for investigatorye;,:pert and allied defense services. 19Standards are given for both assignedcounsel and public defender systems,with no preference expressed.The National Advisory Commissionon Criminal Justice Standards and Goals,in its report on Courts, makes severalrecommendations regarding public defense systems:Services of a full-time public defender organization, and a coordinated assignedcounsel system involving substantial partici-pation of the private bar, should be available in each jurisdiction to supply attorneyservices to indigents accused of crime. 20The National Legal Aid and Defender Association is a private association organized to advance legal counsel to in- .digents in civil as well as criminal cases.Its National Defender Project is a grantprogram designed to es

Attorney General of Iowa Other Members iii Honorable Arthur K. Bolton Attorney General of Georgia Honorable Chauncey H. Browning, J 1'. Honorable John C. Danforth Attorney General of Missouri Honorable J olm P. Moore Attorney General of Colorado Attorney General of West Virginia Honorable Larry Derryberry Attorney General of Oklahoma

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