Whether prosecutors are elected or appointed depends on the level of government. Every federal prosecutor is appointed. At the state and local level, 47 states elect their chief local prosecutors, while three states and the District of Columbia fill those jobs by appointment.
Federal Prosecutors Are Appointed
The chief federal prosecutor in each judicial district is the United States Attorney. The President nominates each U.S. Attorney, the Senate confirms the choice, and the appointee serves a four-year term. The President can also remove any U.S. Attorney before that term expires.1Office of the Law Revision Counsel. 28 US Code 541 – United States Attorneys
Most of the day-to-day caseload falls to Assistant U.S. Attorneys. They are appointed by the Attorney General, not the President, and the Attorney General can remove them as well.2Office of the Law Revision Counsel. 28 US Code 542 – Assistant United States Attorneys No federal prosecutor, at any level, faces voters.
State and Local Prosecutors Are Usually Elected
Forty-seven states elect their chief local prosecutors. The exceptions are Alaska, Connecticut, and New Jersey. In the District of Columbia, the chief local prosecutor is the U.S. Attorney for D.C., a presidential appointee.3Connecticut General Assembly. Office of Legislative Research Report 2003-R-0231 – States That Elect Their Chief Prosecutors
In the three appointing states, the arrangements differ:
- Alaska local prosecutors serve at the pleasure of the state Attorney General, with no fixed term.
- New Jersey county prosecutors are appointed by the governor for five-year terms.
- Connecticut State’s Attorneys serve eight-year terms.
The title of the elected local prosecutor varies by state. Depending on where you live, you might see District Attorney, State’s Attorney, County Attorney, Prosecuting Attorney, or Commonwealth’s Attorney. The job is broadly the same across those labels: investigating and prosecuting violations of state criminal law within the jurisdiction.
Most elected local prosecutors serve four-year terms. New Hampshire uses two-year terms for its county attorneys. Alabama, Kentucky, and Louisiana use six-year terms. Races are typically partisan.
State Attorneys General
State attorneys general are a separate office and follow their own rules. Forty-three states hold direct elections for attorney general. In five states the governor appoints the attorney general, in Maine the legislature chooses, and in Tennessee the state Supreme Court selects.
The attorney general is usually the state’s top legal officer but is not usually the day-to-day criminal prosecutor. Routine criminal cases belong to the elected local district attorney or its equivalent. The attorney general typically handles statewide matters, public corruption, consumer protection enforcement, and criminal appeals. Some states allow the attorney general to supersede a local prosecutor, but the power is rarely used.
How Vacancies Are Filled Mid-Term
When a U.S. Attorney’s seat opens up before the four-year term ends, the Attorney General can appoint an interim U.S. Attorney. That interim appointment expires after 120 days. If the President has not nominated and the Senate has not confirmed a permanent replacement by then, the federal district court for that district can appoint someone to serve until the vacancy is filled through the normal process. The Attorney General cannot appoint someone whose nomination the Senate has previously rejected.4Office of the Law Revision Counsel. 28 US Code 546 – Vacancies
State-level vacancies for elected prosecutors follow less uniform rules. In most states, the governor appoints a replacement who serves until the next general election, when voters choose someone for a full term. Some states hand appointment authority to a different official or require a special election. In the three states that appoint their local prosecutors to begin with, a mid-term vacancy is filled the same way the original appointment was made.
How Prosecutors Can Be Removed
Because they arrived through different doors, federal and state prosecutors leave through different doors too.
The President can remove any U.S. Attorney at will, with no requirement to show cause.1Office of the Law Revision Counsel. 28 US Code 541 – United States Attorneys Assistant U.S. Attorneys can be removed by the Attorney General.2Office of the Law Revision Counsel. 28 US Code 542 – Assistant United States Attorneys Incoming presidents routinely ask most or all sitting U.S. Attorneys to resign.
Elected state and local prosecutors are harder to remove. Voters can decline to re-elect them, but between elections the options are typically impeachment by the state legislature or, in some states, removal by the governor for cause such as neglect of duty or misconduct. A few states allow recall elections. These mechanisms are rarely used, so an elected prosecutor operates with considerable independence during a term.
Special Counsel: Outside the Usual System
A special counsel is a prosecutor who sits outside both elections and the standard appointment track. The Attorney General appoints a special counsel when a criminal investigation would create a conflict of interest for the Department of Justice or when extraordinary circumstances call for outside oversight. Within the scope of that assignment, the special counsel has the same investigative and prosecutorial authority as a U.S. Attorney. The Attorney General defines the jurisdiction in writing, and any expansion of that jurisdiction requires the Attorney General’s approval.5eCFR. 28 CFR Part 600 – General Powers of Special Counsel