The rise of the reform prosecutor has led to a backlash. Many states have sought to circumvent the power of reform prosecutors, others to sanction them, and some to replace them with unelected appointees. These efforts have been met with resistance and, in some instances, with legal challenges, according to a paper in the Wisconsin Law Review by two researchers from the University of North Carolina School of Law, Carissa Byrne Hessick of the school's Prosecutors and Politics Project and fellow law professor Rick Su.
Resolving those challenges may prove difficult because local prosecutors straddle three distinct axis within state governments: the horizontal divide between its branches, the vertical divide between the state government and its local subdivisions, and the constitutional divide between constitutional and statutory offices.
The essay exposes the significant state variation in the legal classification of prosecutors along these divides, and shows that variation not only complicates the legal status of prosecutors within any particular state, but also prevents the formation of a shared understanding of what role the local prosecutor plays in state government. Such an understanding is of increasing importance as the enormous discretion delegated to prosecutors and the deepening partisan divides within states suggest that intense battles over the role of the prosecutor are likely to continue.
Local prosecutors have taken the national stage, as have efforts to curtail their power. The legal conflict over prosecutorial power is playing out, at least in part, against the backdrop of familiar legal frameworks: There are claims that prosecutors (or their adversaries) are violating the separation of powers, and claims about the local or state nature of the office and the constitutional status of the office have appeared as well.
But while debates over the proper role of the prosecutor in criminal justice reform are occurring on a national level, the formal, legal role of prosecutors varies significantly by state. Because the states are so evenly split on how they classify prosecutors within these legal frameworks, a national consensus about how to conceptualize the local prosecutor is unlikely to emerge.
To the contrary, the enormous discretion that prosecutors enjoy and deepening partisan divides within the states suggest that these battles are likely to persist. Any resolution of the difficult questions surrounding the appropriate role of the prosecutor will have to occur on a state-by-state basis, and any resolution may not prove durable.