Photo by Brad Vest for MLK50
Only in Tennessee can a prosecutor not face voters for nearly a decade between elections.
District attorneys here serve the longest terms for elected prosecutors in the nation, which can insulate them from making partisan decisions in individual cases, but can also hinder communities’ abilities to hold them accountable, experts say.
Tennessee prosecutors are elected to eight-year terms. (Connecticut prosecutors also serve eight years, but they’re appointed by a commission, and Alaskan prosecutors are appointed by the state’s attorney general with no term lengths).
In 42 states, elected and appointed prosecutors have four-year terms, according to a 2021 ACLU of Connecticut report. Exceptions include two-year terms in New Hampshire; five-year terms in New Jersey; and six-year terms in Alabama, Kentucky and Louisiana.
County-level prosecutors, who in Tennessee are called district attorneys general, are responsible for prosecuting criminal cases, a role that gives them substantial power.
Prosecutors decide what public safety priorities to pursue, whether to charge someone with a crime and with what charges, and whether to offer plea deals with lesser charges.
Longer terms have their pluses and minuses, said Ronald Wright, criminal law professor and associate dean for research and academic programs at Wake Forest University School of Law.
On the one hand, prosecutors who serve long terms can worry less about what voters will think of charging decisions in individual cases, he said.
“The ideal is that the prosecutors will consider public priorities in setting office policy, office priorities and the general rules for going forward,” Wright said. But they shouldn’t rely on voters’ opinions on a case-by-case basis.
The flip side is that prosecutors who are elected so infrequently might also care less about what voters think about those large policies and priorities, Wright said. That’s especially important when communities are demanding criminal justice reform, such as an end to prosecution for low-level marijuana possession. If a prosecutor doesn’t respond to the community’s calls, it could be eight years before voters have the opportunity to make a change.
Some voters don’t know the DA’s term is so long, said the Rev. Rosalyn Nichols, pastor at Freedom’s Chapel Christian Church and community activist. Nichols is also an organizer with Memphis Interfaith Coalition for Action and Hope, which has held discussions on the role of the prosecutor as Shelby County gears up for an election next year, in which DA Amy Weirich will run for reelection.
And other elected offices, such as the city and county mayor, are half as long as DA terms, she added.
“Eight years gives you a long time to do damage – or gives you a long time to do good.”
Elections as a way to hold prosecutors to account
Not every state has elected prosecutors. Five states have an alternative system: New Jersey, Connecticut and Alaska have appointed prosecutors, and Delaware and Rhode Island both rely on their Attorneys General to handle prosecutions.
In fact, the United States is the only country that elects prosecutors, Wright said. Other countries, such as Japan, have appointed or career prosecutors who are subject to oversight from their departments or judges, he said. In the U.S., prosecutors are, on the whole, only held accountable through elections.
Regardless of whether the term is short or long, there are advantages and disadvantages to having prosecutors be elected, said Akhi Johnson, the deputy director of the Reshaping Prosecution Initiative at the Vera Institute of Justice.
Unlike appointed prosecutors, elected prosecutors can better represent the will of their communities, especially if the community is engaged and able to mobilize to remove prosecutors or elect ones they support.
“If you are a very invested and interested community group and you can organize a mass group of people, you can quickly influence change and hold a DA accountable who’s not living up to your values,” Johnson said.
That’s what happened in Chicago, he said. After Laquan McDonald, a Black 17-year-old, was murdered in October 2014 by a white police officer, the community was “outraged” that then-State Attorney Anita Alvarez waited a year to charge the officer, Jason Van Dyke. Police released the graphic dashcam video hours after Alvarez announced first-degree murder charges against the officer, sparking even more protests.
“That became the driving narrative around getting that DA out of office,” Johnson said, and led to the 2016 election of Cook County prosecutor Kim Foxx.
But often, communities don’t have time to learn about DA candidates or their priorities, Johnson said. They might see the same prosecutors elected and policies favored again and again.
‘Tough on crime’ rhetoric can appeal to voters
The term length for state district attorneys was set in the 1870 Tennessee Constitution, said Wayne Dowdy, senior manager of the Memphis Public Libraries’ history department.
It was the state’s first constitution after the Civil War and, in addition to term lengths for DAs, it also created eight-year terms for the state attorney general and the Tennessee Supreme Court. It’s not clear why the state chose eight-year terms, Dowdy said.
Because they’re state roles, DAs can be impeached like other state officials, Dowdy said.
Once in office, prosecutors can end up spending decades in the role. Glenn Funk, the Davidson County DA who took office in 2014, is only the third since 1966, according to the county’s site.
And voters tend to be swayed by “tough on crime” rhetoric, Johnson added. It’s an approach Weirich embraces.
“I don’t apologize for being tough on crime,” she said in a 2014 campaign video. And on the DA’s website, Weirich says she “has pushed for harsher punishment for violent offenders.”
When Republican prosecutor Bill Gibbons left to become the Tennessee Department of Safety and Homeland Security commissioner in January 2011, Weirich was a deputy district attorney in his office.
Widely regarded as a Gibbons’ protege, Weirich was appointed by then-Gov. Bill Haslam to the role. A Republican in a heavily Democratic county, she is the county’s first female prosecutor. Gibbons is now executive director of the Public Safety Institute at the University of Memphis and president of the private, nonprofit Memphis Shelby Crime Commission, on which Weirich is a board member.
She was elected to finish the final two years of Gibbons’ term in August 2012, and then was re-elected to a full eight-year term two years later. Weirich, who is white, is gearing up to run for reelection in 2022. She did not respond to an emailed request for comment.
Her only declared opponent is Linda Harris, who is Black. She is a private practice lawyer who formerly was a Memphis police officer and an assistant U.S. attorney for the Western District.
Shelby County is 54% Black but has never had a Black DA.
Weirich was the focus of a national story in 2017 about prosecutorial misconduct and was reprimanded that year for her actions during the 2009 high-profile murder trial of Noura Jackson.
Tennessee as an outlier
Prosecutorial decisions can exacerbate racial disparities, said Angela Davis, a distinguished law professor at American University Washington College of Law, in a July 30 discussion organized by MICAH on the power of the prosecutor.
“The prosecutors … control this entire system. They control the plea bargains; they control the charging,” Davis said.
Multiple parts of the criminal justice system are to blame for racial disparities – including racial profiling by police and discriminatory sentencing laws – but Davis said she believes prosecutors are the biggest component, largely because of implicit biases, which can affect charging and plea decisions.
Eight years is probably too long a term for prosecutors, said Josh Spickler, executive director at Just City. But shorter term lengths can also be problematic. If officials have to run for reelection frequently, they may be more likely to make popular – but not difficult – decisions that might appeal to the electorate. Longer terms can insulate prosecutors who make unpopular decisions.
Prosecutors also often run unopposed, Johnson said, raising questions about whether elections offer true accountability to voters.
“Until very recently, prosecutor elections were very sleepy affairs,” Wright said, adding that some races are becoming more competitive, particularly in urban areas where progressive candidates are trying to make headwinds, he said.
That Tennessee is an outlier indicates that the term lengths might be too long, Wright said.
“I think there’s something to be learned from the fact that there are very few states with eight-year (terms),” Wright said. “I think that suggests there’s some group wisdom in something less than eight.”
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