Renewed Interest in Prosecutor Term Limits

The United States is unique in electing, rather than appointing, its local chief prosecutors—commonly known as district attorneys (or DAs). Some jurisdictions refer to their chief prosecutors as county attorney, county prosecutor, state’s attorney, prosecuting attorney, commonwealth’s attorney, state attorney, or solicitor. In Delaware and Rhode Island, all prosecutions are handled by the states’ attorneys general, elected for four-year terms. As of the latest estimate in 2007, there are 2,330 local prosecutorial offices nationwide. Steven W. Perry & Duren Banks, Prosecutors in State Courts, 2007—Statistical Tables, Bureau of Just. Stat. (Dec. 2011). Serving as the chief law enforcement officers representing a county or a judicial circuit, DAs are elected for four-year terms and are eligible for reelection. Not all US states elect prosecutors. In Alaska, Connecticut, New Jersey, and the District of Columbia, chief prosecutors are appointed. In Alaska, felonies are handled by the Attorney General, who is appointed by the governor for an indefinite term. Alaska Stat. § 44.23.020. In Connecticut, state’s attorneys for 13 judicial districts are appointed by the Criminal Justice Commission to eight-year terms. The Commission includes the chief state’s attorney and six members appointed by the governor and confirmed by the General Assembly, two of whom are judges of the superior court. Conn. Const. art. XXIII. In New Jersey, the governor appoints each of the 21 county prosecutors for a five-year term, or until the appointment of a successor. N.J. Const. art. VII, § II. Finally, the US Attorney’s Office for the District of Columbia is unique among 93 US Attorney’s Offices as it serves as both the federal and local prosecutor, and, just like all other US Attorneys, is appointed by the president and confirmed by the Senate to serve four-year terms. 28 U.S.C. § 541(b). However, the election requirement does not always result in a transition of power. It is common for DAs to serve multiple terms or even decades without ever being challenged in an election. Some remain in the office until their retirement or death. For example, Manhattan DA Robert Morgenthau served from 1975 through his retirement in 2009. Similarly, Timothy Curry was the Tarrant County, Texas, DA from 1972 until he died in 2009.

DA term limits are exceedingly rare. States and local jurisdictions must enact laws and regulations to formally limit DAs’ tenure. In Colorado, DAs can serve only two consecutive four-year terms. The regulation derives from a 1994 constitutional amendment. Colo. Const. art. XVIII, § 11(1). California counties also are considering term limits for their DAs. In 2013, local legislators initiated a constitutional amendment to bar DAs from serving more than three consecutive terms. See Amend Article XI, Sections 1 and 4, of the California Constitution to Provide Term Limits for the Office of the County Assessor, County District Attorney and County Sheriff (Nov. 8, 2013).

Historical Perspective on Term Limits

Discussions of limited tenure and rotations in government offices date back to the ancient republics of Athens and Rome. Gideon Maltz, The Case for Presidential Term Limits, 18 J. Democracy 128 (2007). For example, in Athenian democracy, many positions were limited to a single term, and council members were allowed a maximum of two terms. Alexander Baturo, Democracy, Dictatorship, and Term Limits 18 (Univ. of Michigan Press 2014). However, the modern discourse on term limits originates from mid-19th century Latin American states, where presidential term limits gradually spread across the globe. Maltz, supra. It was not until 1951 that the U.S. Congress ratified the 22nd Amendment, which limited presidential terms to two—based on the recommendation of the Hoover Commission. Since the passage of the 22nd Amendment, credible arguments against presidential term limits have been rare. However, it’s worth noting that this decision opposed the Hamiltonian view, which favored a life term for the U.S. president, as discussed later. The Federalist No. 71 (Alexander Hamilton) (The Duration in Office of the Executive).

Unlike the US presidential position, the US Congress remains without electoral limits. At a state level, 17 state legislatures currently have term limits, and governors of 37 states and four territories are subject to various term limits. Based on a survey of legislators in 50 US states, Carey and colleagues found that term limits do not affect the demographic characteristics or ideological predisposition of people elected to office. John M. Carey et al., The Effects of Term Limits on State Legislatures: A New Survey of the 50 States, 31 Legis. Stud. Q. 105 (2006). However, legislators report that term limits do impact some behaviors and priorities. If applied to DAs, this finding may suggest that, if forced by term limits, jurisdictions would likely replace a chief prosecutor of a certain race, gender, and political affiliation with someone very similar. However, the new DA may still bring new priorities to the office to leave their mark and ultimately build their legacy.

Contemporary Discourse on Term Limits

The practice of term limits of elected and appointed positions is an ongoing debate recently thrust to the foreground of national attention. Katie Rogers, Warning of “Extreme” Agenda, Biden Calls for Supreme Court Overhaul, N.Y. Times (July 29, 2024). Propelling the issue into the mainstream, on July 29, 2024, the Biden administration proposed bold reforms to consider term limits for Supreme Court Justices. Press Release, The White House, Fact Sheet: President Biden Announces Bold Plan to Reform the Supreme Court and Ensure No President Is Above the Law (July 29, 2024). In August 2024, the nonpartisan Brennan Center for Justice at NYU School of Law discussed the issue of term limits and an enforceable code of ethics for the Supreme Court in a virtual event where its president, Michael Waldman, asserted that numerous polls had shown overwhelming bipartisan support for term limits. Debates about term limits typically involve executive officeholders, legislatures, and judges. Furthermore, arguments in favor of term limits generally are made by legal scholars and political scientists, who reason that limits will decrease several downsides associated with long-term officeholders. The end goal of these arguments is to serve the core tenets of representative democracy by balancing power among branches of government.

Less common voices in the debate are heard by criminologists and law and society scholars. Yet, for some time, scholars in these fields have studied the patterns of discretionary choices by DAs and the impacts that prosecutors have on the processing of people in trouble with the law. Brian D. Johnson et al., Sociolegal Approaches to the Study of Guilty Pleas and Prosecution, 12 Ann. Rev. L. & Soc. Sci. 479 (2016). Pretrial and front-end decisions by prosecutors have significant implications on the lives and livelihood of people ensnared in the criminal legal system, particularly for people of color. Traci Schlesinger, Racial Disparities in Pretrial Diversion: An Analysis of Outcomes Among Men Charged with Felonies and Processed in State Courts, 3 Race & Just. 210 (2013). Indeed, many downstream effects on who ends up in jail and prison begin at the doorstep of prosecutors’ offices. Besiki L. Kutateladze et al., Cumulative Disadvantage: Examining Racial and Ethnic Disparity in Prosecution and Sentencing, 52 Criminology 514 (2014); Lisa Stolzenberg et al., Race and Cumulative Discrimination in the Prosecution of Criminal Defendants, 3 Race & Just. 275 (2013). In short, prosecutorial decision-making and its effects are important subjects in the theoretical and empirical work of criminologists and scholars of law and society. Yet, the disciplines rarely weigh in on the debate about the term limits of prosecutors. However, we could not find a good reason for this. There has been a deafening silence on term limits for state prosecutors. Legal scholars, criminologists, and many others have opined on term limits for the Supreme Court but not so for state and local prosecutors. As such, our objective is to speak to some of the nuanced aspects of term limits that have previously been overlooked to advance future empirical research.

Two Sides of the Argument About DA Term Limits

Arguments for and against adopting term limits for DAs abound. Proponents of term limits can argue that DAs would become less likely to be entrenched and beholden to special interests. With each change in leadership, term limits facilitate introducing fresh reform ideas to prosecutorial offices. They enable line prosecutors to ascend to the DA position, creating internal incentives for good performance. As a DA conveyed in a private conversation, “People are hesitant to challenge incumbents.” Line prosecutors often wait until their predecessor’s retirement to run for DA. Moreover, with no possibility of additional terms, DAs might be motivated to maximize their impact during their limited tenure, potentially increasing measurable outcomes and advancing transparency by publishing public-facing dashboards or even case-level data. Conversely, as one of the DAs recently told us in a personal conversation, people who are in a position for a long time feel discouraged from taking chances and implementing certain programs that might be controversial.

It is thought that elected prosecutors will pander to what voters want or make decisions they believe will help get them reelected. Indeed, legal scholar Katherine Beckett gave a detailed account of how elected leaders in the 1980s and 1990s found that tough-on-crime discourse and policies “paid at the polls” given the context of the time when violence was high, and the fear of crime was even higher. Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (Oxford Univ. Press 1999). Studies generally support the thesis that DAs are more punitive when running for election. Michael W. Sances, Do District Attorneys Represent Their Voters? Evidence from California’s Era of Criminal Justice Reform, 2 J. Pol. Inst. & Pol. Econ. 169 (2021).

Relatedly, term limits can play a prominent role in diversifying the prosecutor’s office. Routinely contested elections allow more opportunity for diverse candidates to compete and fundraise since donor funds are not locked into loyalty to an incumbent. New and diverse leaders often lead to more diversity among line prosecutors and support staff. Term limits could level the electoral playing field by mitigating the advantage incumbents usually have in name recognition, political connection, and fundraising, thereby enhancing jurisdiction residents’ ability to exercise their election rights effectively. In short, the prevailing reasoned arguments favoring term limits are opportunities for reform and increasing diversity.

Opponents of term limits also may highlight several compelling points. First, longer tenures may preserve prosecutorial independence from political pressures. While this argument has been made about Supreme Court justices (see John Gruhl, The Impact of Term Limits for Supreme Court Justices, 81 Judicature 66 (1997)), it also may apply to DAs who may experience similar pressures at a local or state level.

Second, good performers should be rewarded, and term limits could disincentivize effective leadership, especially toward the end of a DA’s tenure. Even in 1788, Alexander Hamilton argued that “a magistrate is to be elected for four years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence.”. The Federalist No. 69 (Alexander Hamilton) (The Real Character of the Executive). In 1789, Refus King supported this argument in the context of the presidential term limits: “he who has proved himself to be most fit for an office, ought not to be excluded by the Constitution from holding it.” The Politics and Law of Term Limits (Edward H. Crane & Roger Pilon eds., Cato Inst. 1994).

Third, arguments on office capacity and continuous functioning also can be made. Term limits could lead to removing highly experienced prosecutorial managers from office because DAs and many office executives are unlikely to revert to working as line prosecutors. This could exacerbate the current prosecutor vacancy crisis nationwide (see Adam M. Gershowitz, The Prosecutor Vacancy Crisis (Wm. & Mary Law School Research Paper No. 09-480, Dec. 15, 2023)), impacting the office’s capacity to handle complex cases—and exacerbating case processing delays. Some have argued by analogy that removing an incumbent DA, regardless of merit, would be like a company forced to fire its successful CEO at the end of the year. Anthony Fowler, Term Limits, Univ. of Chi. Ctr. for Effective Gov’t, Democracy Reform Primers (2024). Relatedly, changes in administration due to term limits may disrupt the normal functioning of the office, creating uncertainty regarding prosecutorial policies and potentially negatively affecting staff morale and job security.

Last, incumbent DAs with no chance of remainingin office will, purportedly, lack incentives to gain favor from voters. Term-limited prosecutors “will likely not work as hard, be more likely to engage in corruption, and be more likely to implement the policies that she likes as opposed to the policies that the voters like.” Id. The idea is like one of the more established theories of crime that posits that without a suitable guardian (in this case, the voters), a motivated wrongdoer will be more likely to engage in nefarious activities or neglect the position’s obligations.

Empirical Studies on Term Limits

Arguments for and against term limits are typically drawn from other areas of government or are based on anecdotal evidence, often derived from informal discussions with elected prosecutors of varying tenures. But what does empirical research say on this matter? To our knowledge, there has been no empirical study on the effects of DA term limits on their performance. Scholars and commentators primarily focus on term limits for presidents, legislators, and Supreme Court justices. While some of these findings may be applicable to the prosecutorial realm, it’s important to remember that prosecutorial culture differs significantly from other branches of government.

Researchers have investigated the overall impact of term limits on elected leaders. The 1990s were a watershed moment when 21 states adopted term limits on state legislators. Researchers found various effects, primarily using surveys of legislators or related actors such as lobbyists. After legislator term limits were enacted, they were found to be substantially weaker than those without limits when negotiating state budgets with governors. Thad Kousser, Term Limits and the Dismantling of State Legislative Professionalism (Cambridge Univ. Press 2005). In a study of lobbyists, Moncrief and Thompson found that lobbyists perceived term-limited legislators as less influential than the governor, executive agencies, interest groups, and legislative staff. Gary Moncrief & Joel A. Thompson, On the Outside Looking in: Lobbyists’ Perspectives on the Effects of State Legislative Term Limits, 1 State Pol. & Pol’y Q. 394 (2001). In a systematic survey of term-limited and non-term-limited members of US state congresses, Carey et al. found that term limits did not affect the age, gender, religious affiliation, family income, or ideological makeup of people elected. Carey et al., supra. The finding undercuts advocates’ reasoned argument that the change would usher in a “new breed” of amateur politicians. However, Carey et al. did find that “term-limited legislators as a whole are thinking and behaving differently from nonterm-limited legislators.” Id. at 18. Namely, according to their self-reports, legislators in term-limit states pay less attention to the demands of constituent citizens and are “more inclined to favor their conscience and the interests of the state.”

In a study of U.S. Supreme Court justices, Teitelbaum found a link between the age and tenure and their productivity. Joshua C. Teitelbaum, Age and Tenure of the Justices and Productivity of the U.S. Supreme Court: Are Term Limits Necessary?, 34 Fla. St. Univ. L. Rev. 161 (2006). Specifically, increased longevity and terms of service of the justices were associated with a decline in the productivity of the Court, which the researchers measured by the number of cases accepted for review, as well as opinions issued.

Finally, one study examined the optimal length of tenure for federal judges, suggesting that an 18-year term would be most appropriate. This duration would allow presidents to appoint one justice every two years, ensuring that even if a president serves two terms, they would not be able to appoint a majority of the Court. Gruhl, supra.

Conclusion

Similar to the challenges of empirically measuring the factors influencing prosecutorial decision-making, measuring the impact of term limits on prosecutors remains elusive. Although scholars have put forth many arguments, there is a clear need for empirical studies to test the effects of term limits on prosecutors. The potential benefits of such an inquiry are multidimensional; for instance, term limits may enhance accountability, increase public trust, and improve perceptions of procedural fairness. Moreover, if empirical evidence supports term limits for prosecutors, this could serve as an important check on an agency of government that many agree holds the most power in the criminal justice system.

The task, however, will not be easy. There are good reasons why scientists have not tested prosecutor term limits. No data sets are available, at least not yet, and it is only recently that some states have begun to impose term limits on prosecutors. For over 30 years now, we have lacked high-quality, publicly available data on prosecutorial decision-making. Brian D. Johnson, The Missing Link: Examining Prosecutorial Decision-Making Across Federal District Courts, Nat’l Crim. Just. Reference Serv. Abstracts (2014). This was not always the case. Up until 1992, the Bureau of Justice systematically collected prosecutorial charging patterns through the Prosecutor’s Management Information System. Id. However, in recent years, transparency efforts have started to bear fruit through the implementation of public-facing prosecutorial dashboards. These dashboards provide the community with some insight into what justice looks like locally and can serve as a tool for holding prosecutors accountable. While the ultimate form of accountability is at the ballot box, as we’ve noted, the lack of alternative choices or candidates can diminish the incentive for change, leading to a slower path toward potentially necessary reforms.

It is generally assumed that elected DAs reflect local concerns, and if they deviate from the consensus of the majority, they will be removed through reelection. The problem with this reasoning, as noted earlier, is that DAs are frequently reelected. Ronald F. Wright, How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581 (2008). Indeed, in the election cycles for the 1996–2006 period, the incumbent success rate when running for office was 95 percent, i.e., 947 of 993 elections. Id. Moreover, many voters may not be aware of what their elected prosecutor does or the power they wield. There is minimal performance tracking available to voters to inspect before elections. Organizations such as the ACLU have launched campaigns to increase voter awareness about their local prosecutors, but generally it has been difficult to bridge the gap between prosecutorial offices and communities they serve.

The lack of diversity among district attorneys compared to the community they serve remains a persistent challenge. A recent study found that DAs are systematically unrepresentative of their voters, especially when compared to local, state, and federal elected leaders. Sances, supra. In 2015, the Reflective Democracy Campaign found that 95 percent of prosecutors were white, with almost 80 percent being white men. The updated 2019 study revealed little change—95 percent of prosecutors were still white. However, there have been some gains for women, with their representation among elected prosecutors increasing from 18 percent to 24 percent, and the number of women of color in these roles growing by nearly 50 percent. The data also show that prosecutors run unchallenged 80 percent of the time, but when they do face competition, diverse candidates are more likely to win.

In fact, the prosecutorial landscape has seen more change in recent years than perhaps ever before, including a significant influx of new DAs across the country. Several high-profile incumbents were defeated by candidates campaigning to roll back mass incarceration. David Alan Sklansky, The Problems with Prosecutors, 1 Ann. Rev. of Criminology 451 (2017). In competitive 2018 races, white men were 69 percent of the candidates but only 59 percent of the winners. Women and people of color were 31 percent of the candidates and 41 percent of the winners. Reflective Democracy Campaign, Tipping the Scales: Challengers Take on the Old Boys’ Club of Elected Prosecutors (2019). Yet it is not clear to what extent prosecutorial term limits would actually increase diversity in the prosecutorial corpus.

Final Words

As we discussed at the outset, there are many reasoned arguments, and analogies may indeed be compelling. Common sense does suggest that DAs should be representing local communities and that holding office indefinitely might not promote reforms or accountability. Currently, the pattern of frequently reelecting incumbent DAs persists. While term limits could potentially offer improvements, this proposal demands rigorous scientific investigation to determine their efficacy. Given the unique nature of the prosecutorial role, we cannot simply generalize findings about term limits from other branches of government to the prosecutorial field. Therefore, we should withhold conclusions until we have empirical evidence on the benefits and risks of prosecutorial term limits.