Elect or appoint?
Sen. Richard Sears says his bill to strip away the independence of the state attorney general is not aimed at the incumbent, William Sorrell. But dissatisfaction with Sorrell’s long tenure in office appears to underpin the justification for his bill, and in 2012 Sears supported TJ Donovan, the Democrat who gave voice to that dissatisfaction in the Democratic primary.
Sears says in those states where attorneys general are appointed by the governor, they are better able, or are more highly motivated, to become leaders in law enforcement and justice policy. In Sears’ view, justice policy now is carried out mainly by the state’s attorneys who handle prosecutions in each county. Thus, policies and programs differ from county to county, and coordination or consistency is lacking.
Sears says prosecution of crimes differs by county according to the priorities of the state’s attorneys. “Is shoplifting in Bennington any more serious ... than it is in Burlington? They can be treated very differently,” he says.
An appointed attorney general may also be inclined to take a leadership role in establishing statewide programs, Sears says. He may be thinking of the program initiated by Donovan, state’s attorney in Chittenden County. It is a program to intervene in judicial proceedings, directing some defendants in the manner of diversion programs to solutions other than jail. During the race between Donovan and Sorrell, Donovan talked about scaling up the program to the state as a whole.
Sears’ proposal raises a number of questions about accountability and effectiveness. An attorney general appointed by the governor would be charged with carrying out the governor’s policies and criminal justice. Democratic accountability would flow from the people through the governor.
As it is now, democratic accountability flows directly from the people to the attorney general, whom the people elect. Presumably, if the people of Vermont wanted statewide programs for diversion, reparative justice or drug courts, they could elect an attorney general who could lead the charge for them. Under Sears’ plan, they would have to elect a governor who would push for those programs through the attorney general. Either way, they would have to persuade the Legislature to go along.
An attorney general elected independently of the governor may be in a better position to hold the governor’s administration accountable legally. In recent years, there has been little hostility between attorneys general and governors even when they were from different parties. It was the 1970s when Democratic Attorney General M. Jerome Diamond made a practice of annoying Republican Gov. Richard Snelling, eventually running against him and losing.
Lately, the state has shifted the status of the state’s education commissioner, who had been appointed by the State Board of Education. Now the commissioner is appointed by the governor, which means she will be part of his Cabinet and charged with carrying out his education policy. That arrangement has the danger of politicizing education policy. It also has the potential of more effectively achieving education reforms.
At the federal level, the attorney general, who is appointed by the president, is in a highly sensitive position, charged with enforcing the law but serves at the pleasure of the president. There have been some highly political attorneys general, such as John Mitchell, who ended up in jail because of Watergate, but also Robert Kennedy, viewed as one of the great attorneys general. Attorneys general, such as Eric Holder today, become flash points of criticism, accused of overlooking the wrongdoing of their presidents.
Attorneys general, even when elected independently of the governor, remain politically accountable, as Sorrell learned in 2012, when he almost lost his job to the challenger, who nearly persuaded voters that Sorrell had been in office too long. Former Attorney General Jeffrey Amestoy used to joke that the post could be labeled “eternal general” because officeholders tend to serve so long.
Sears’ bill would make the attorney general less eternal — but also less independent. That may not be a necessary trade-off.