This Note is concerned with the unique conflict of interest presented when a prosecutor who accepts campaign contributions from a police union is responsible for investigating police shootings or other officer misconduct. It approaches the question by first analyzing the American Bar Association Model Rules of Professional Conduct, the American Bar Association Criminal Justice Standards for the Prosecution Function, and the National District Attorneys Association National Prosecution Standards (NDAA Standards) to determine whether existing ethical guidance for prosecutors adequately addresses the issue. This Note finds that among these bodies of ethical guidance, the NDAA Standards offer the strongest basis for arguing that such conduct violates a prosecutor’s ethical duties. However, none of these sources offer substantive criteria for determining when campaign contribution conflicts warrant recusal. These sources also do not offer a reliable procedural mechanism for ensuring that conflicted prosecutors will recuse themselves. To fill these gaps, this Note then looks to a separate body of ethical guidance—ethics rules for judges—that directly addresses conflicts of interest arising from campaign contributions. By applying the judicial disqualification model to the prosecutorial context, this Note illustrates measures that states can implement to prevent the appearance of impropriety in police-shooting investigations when the district attorney has accepted campaign contributions from police unions.

Introduction

In 2018, controversy ignited in Alameda County, California, where District Attorney Nancy O’Malley was responsible for investigating the fatal shooting of Elena Mondragon, an unarmed pregnant teenager, during a botched undercover police operation.[1] While the investigation was still underway, O’Malley accepted $10,000 from the Fremont Police Association (FPA). This endorsement caused O’Malley to face allegations of impropriety when she cleared Detective Joel Hernandez and Sergeant Jeremy Miskella, the two Fremont officers who shot at the vehicle that Mondragon was riding in.[2] Even more concerning, Miskella was the president of the FPA at the time.[3]

O’Malley stood by the results of her investigation: “Under no circumstances was the decision regarding the Fremont police officers influenced in any way by any politics.”[4] She also defended her ability to remain impartial while accepting money from police unions, saying, “This is a law enforcement job and we work with the police. As I said before, when police do something that is against the law, they either get fired or they get prosecuted.”[5]

Indeed, prosecutors are key actors ensuring the enforcement of the law, and they must work closely with law enforcement during the investigation and the prosecution of cases. But policework’s indispensability to every case a prosecutor handles points to the disquieting conclusion that financial ties between prosecutors and police unions create an inappropriate incentive structure. Under this structure, a police department may influence the outcome of any case, especially when its own officers are under scrutiny. O’Malley might recognize this now, as in 2020 she agreed that she would no longer take money from police unions.[6]

The investigation into Mondragon’s death is not the only one overshadowed by financial ties between elected prosecutors and police unions. In 2019, Kenneth French was killed within District Attorney Michael Hestrin’s jurisdiction in Riverside, California.[7] French, a man with intellectual disabilities and schizophrenia, was shopping at Costco with his parents when he knocked Salvador Sanchez, an off-duty Los Angeles police officer, to the ground.[8] Sanchez then fired several shots at French and his parents.[9] The bullets hit French and his mother in the back and his father in the abdomen.[10] In addition to killing French, the shooting put his mother into a coma and caused his father to lose a kidney.[11]

Hestrin, who has accepted hundreds of thousands of dollars from sheriff deputies’ and police unions over the years[12]—and who was the nation’s largest recipient of law enforcement funds in 2014[13]—declined to prosecute Sanchez, triggering backlash and raising suspicions of impropriety.[14] The California Attorney General’s Office came to a different conclusion on the merits of the case and stepped in to prosecute Sanchez.[15]

As the Mondragon and French cases demonstrate, the conflict of interest created when elected prosecutors accept contributions from police unions is a pertinent issue that deserves greater attention, as calls for heightened scrutiny of extrajudicial police killings echo nationwide. Some scholars have argued that prosecutors should not investigate police in their own jurisdictions because the necessarily close and cooperative relationship between prosecutors and local law enforcement incentivizes prosecutors to be unfairly lenient with officers and undermines public confidence in prosecutorial decision-making.[16] This idea has been implemented in New York, where, in response to public dissatisfaction with a prosecutor declining to bring charges in the Eric Garner case,[17] a 2015 executive order required all police killings of unarmed civilians to be handled by an appointed special prosecutor.[18] Other scholars have criticized this approach, arguing that it oversimplifies the relationship between prosecutors and police while underestimating prosecutors’ ability to “switch roles from ally to adversary.”[19] Furthermore, singling out this one type of conflict for prosecutorial recusal fails to address the root of the issue.[20]

However, the math changes when money enters the equation, as the risk of the appearance of impropriety and the risk of actual impropriety both substantially increase.[21] A cooperative and professional relationship with the police is not necessarily cause for concern—but it does raise red flags when a police union helped the prosecutor win her[22] seat.

This Note analyzes the problem in two ways. First, it examines the existing ethical standards that govern the conflicts created when prosecutors accept campaign contributions from police unions. Second, it discusses the ethics rules that apply to judicial conflicts of interest based on campaign contributions and recommends adopting similar rules for prosecutors.

Part I analyzes the ethical standards of the legal profession and of prosecutors as stated by the most recent editions of the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules), the ABA Criminal Justice Standards for the Prosecution Function (ABA Standards), and the National District Attorneys Association National Prosecution Standards (NDAA Standards).[23] The analysis reveals that the Model Rules do not sufficiently address personal and financial conflicts of interest for prosecutors. Both the ABA Standards and NDAA Standards provide an ethical basis for arguing that prosecutors who accept contributions from police unions should recuse themselves from investigating officer misconduct, though the NDAA Standards are stronger than the ABA Standards in this respect. Still, both sets of standards are lacking in two key respects: 1) substantive criteria that can help determine when campaign contribution conflicts are severe enough to require recusal, and 2) a procedural mechanism to ensure recusal when it is warranted. Therefore, states need to create new rules that solve these issues—but they do not need to do so from scratch.

Part II discusses the existing ethical guidance for judicial disqualification on the basis of campaign contributions. This guidance contains various models that can inform lawmakers as they determine the standards for prosecutorial recusal. While the Due Process Clause only requires that judges recuse themselves when there is a “serious risk of actual bias,”[24] states can, and sometimes do, require judicial disqualification where there is a mere appearance of impropriety.[25] However, state rules vary greatly as to when, if ever, conflicts of interest based on judicial campaign contributions create an appearance of impropriety.[26] Some states have governed the issue by creating a monetary threshold for judicial disqualification.[27] Other states have opted for deciding these conflicts on a case-by-case basis in light of a certain set of factors.[28] This Note discusses these factors and responds to the common policy arguments made against judicial disqualification.

Finally, Part III applies the principles and arguments discussed in Part II to the prosecutorial context. This application demonstrates that narrowly tailored ethics rules for prosecutorial campaign contributions are not only possible but also a desirable way to regulate prosecutorial conflicts of interest in cases with police shootings and other types of officer misconduct.

I. Examining Existing Prosecutorial Ethics Standards with Respect to Campaign Contributions

A.     The Conflict-of-Interest Guidance from the ABA Model Rules Does Not Easily Translate to the Prosecutorial Context.

Although the ABA Model Rules provide some ethical guidance specific to prosecutors, this guidance does not address any personal or financial conflicts of interest that may arise for a prosecutor, let alone conflicts arising from campaign contributions.[29] The only potential guidance in this respect is Model Rule 1.7, which states that a lawyer may not represent a client in a matter where the lawyer’s personal or financial interests would materially impact her ability to represent her client with competence and diligence.[30] This rule applies to most attorneys, including those “currently serving as a public officer or employee,” but is very weak in its application to prosecutors.[31] Technically, a prosecutor does not have a client; thus, this rule is construed too narrowly to apply to a prosecutor’s context.[32] But just because a prosecutor serves no particular client does not mean she has no duties or interests that she must serve above all else. A prosecutor still must be a “zealous advocate” for the public interest and the administration of justice.[33] Thus, examining a prosecutor’s obligations under Model Rule 1.7 while considering the “People” at large to be the prosecutor’s “client” is still worthwhile.[34]

Under this construction, Model Rule 1.7(a)(2) would prohibit a prosecutor from handling a case where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”[35] Along these lines, it could be argued that a prosecutor accepting contributions from police unions creates a significant risk that her representation of the “People” in cases with officer defendants may be materially limited due to her financial dependence on a powerful third party. However, reliance on this argument could lead to inconsistent outcomes because what constitutes a “significant risk” is rather subjective and ultimately up to the prosecutor’s discretion.[36]

Additionally, the analogy breaks down with Model Rule 1.7(b), which allows for exceptions where

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.[37]

In the case of a conflict of interest arising from campaign contributions from police unions, a prosecutor may reasonably believe she will be able to handle the case competently and diligently without bias despite a “significant risk”—but it is unclear how the “People” would be able to grant informed, written consent to such “representation.”[38]

Aside from demonstrating that Model Rule 1.7 applies to prosecutors very weakly, if at all, this analysis highlights one of the ethical problems inherent in elected prosecutors accepting financial contributions from influential interested parties like police unions. An individual client can clearly communicate her own interests and desires to her legal representative and holds the majority of the decision-making power in an attorney-client relationship. But the prosecutor, as the legal representative of the public, holds far more decision-making power than the people whose interests she has a duty to serve. Additionally, the public has no unified voice that can provide informed consent to conflicts of interest.

It could be argued that the public consents to a prosecutor’s representation by electing her. If the public is aware that a candidate takes money from police unions and elects her anyway, then the public is effectively consenting to her representation, despite the potential for conflicts of interest. However, popular elections do not rise to the level of “informed consent” that is necessary to neutralize the ethical concerns that exist when an attorney has a conflict of interest.[39] Informed consent can only occur “after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”[40] It is extremely unlikely that an electorate could be adequately armed with this information before heading to the polls. And voters cannot possibly possess this information when the conflict of interest at issue arises after the prosecutor is elected.

Therefore, the Model Rules are insufficient to govern prosecutors’ conflicts arising from campaign contributions for two reasons. First, their client-oriented construction does not easily translate to the prosecutorial context. Second, even if they were interpreted with an understanding that the prosecutor’s client is the “People,” there still are no criteria for determining when campaign contributions would create a “significant risk” of a material impact on the representation, or in this context, the investigation of an officer defendant.

B.     The ABA Criminal Justice Standards for the Prosecution Function Provide Some Basis for Requiring Prosecutorial Recusal on the Basis of Campaign Contributions.

Unlike the Model Rules, the ABA Criminal Justice Standards for the Prosecution Function do address the personal and financial conflicts of interests of prosecutors. Standards 3-1.7(f)–(h) provide the relevant guidance. Standard 3-1.7(f) states:

The prosecutor should not permit the prosecutor’s professional judgment or obligations to be affected by the prosecutor’s personal, political, financial, professional, business, property, or other interests or relationships. A prosecutor should not allow interests in personal advancement or aggrandizement to affect judgments regarding what is in the best interests of justice in any case.[41]

Applying this standard, elected prosecutors should not allow election contributions from particular parties, such as police unions, to influence their professional judgment. Additionally, Standard 3-1.2(c) provides that prosecutors “should avoid an appearance of impropriety in performing the prosecution function.”[42] Therefore, prosecutors should avoid accepting contributions from police unions when doing so would create the appearance of impropriety—for example while investigating a police shooting[43]—or alternatively recuse themselves from cases with officer defendants.

However, the ABA Standards do not propose a reliable enforcement mechanism to ensure that prosecutors are not influenced by campaign contributions and that the public maintains confidence in prosecutorial investigations. Under Standard 3-1.7(g), a prosecutor should disclose any potential conflict of interest to her supervisor, who will determine whether recusal is appropriate.[44] If recusal is not deemed necessary, the prosecutor and her supervisor should determine whether to disclose the potential conflict to the court or the defense.[45] As elected district attorneys are the heads of their respective offices, Standard 3-1.7(g) as applied to campaign conflicts of interest would mean soliciting advice from the attorney general.[46]

The biggest problem with Standard 3-1.7(g) is that it lacks substantive criteria for determining when circumstances “could reasonably be viewed as raising a potential conflict of interest.”[47] Therefore, it does not guarantee that a district attorney with a campaign contribution conflict will even recognize the need to bring the conflict to her supervisor. And if she does, the Standards say that it may be “determined that the prosecutor should nevertheless continue to act in the matter” but do not explain how one might make that determination.[48] Therefore, this mechanism leaves behind too much discretion to regulate prosecutor conflicts of interest arising from campaign contributions with consistency.

Standard 3-1.7(h) provides a similar mechanism for discussion and recusal or disclosure where a prosecutor has a “significant personal, political, financial, professional, business, property, or other relationship” to the defendant’s counsel.[49] Campaign contributions create a relationship between contributor and candidate that could be classified as both political and financial. Therefore, this relationship could potentially lead to recusal for a prosecutor who has accepted police union contributions when an officer represented by the union is a defendant in a case. But as with Standard 3-1.7(g), the standard provides no substantive criteria for determining what amounts to a “significant . . . relationship,” so the mechanism is discretionary.[50]

The ABA Standards clearly imply that a prosecutor should not allow campaign contributions from a police union to affect her professional judgment while investigating a case against an officer. Additionally, applying the appearance of impropriety standard suggests that prosecutors should either avoid accepting police union contributions or recuse themselves from officer-misconduct cases. However, the mechanism for recusal proposed in the ABA Standards is far too discretionary and provides a weak impetus for prosecutors to recuse themselves.

C.    The NDAA National Prosecution Standards Provide an Even Stronger Basis for Requiring Prosecutorial Recusal on the Basis of Campaign Contributions.

Applying the NDAA National Prosecution Standards (NDAA Standards) offers a stronger argument that investigating or prosecuting cases with an officer defendant while accepting contributions from police unions is improper. This conclusion holds true for the 2009 edition of the Standards, but the argument is even stronger for the most recent edition released in January 2023, which includes a section that specifically addresses how a prosecutor should handle “Officer Involved Shootings.”[51] The sections on conflicts of interests in the 2009 and 2023 editions are identical, except for the new section on police shootings. Therefore, this Note will first carry out an analysis on the 2009 edition of the NDAA Standards and then discuss how the analysis changes in 2023 with the new section on police shootings.

1.     NDAA Standards, 2009 Edition

NDAA Standard 1-3.1 states that “a prosecutor should not hold an interest or engage in activities, financial or otherwise, that conflict, have a significant potential to conflict, or are likely to create a reasonable appearance of conflict with the duties and responsibilities of the prosecutor’s office.”[52] This language is stronger than ABA Standard 3-1.7(f), which only states that a prosecutor should not allow such interests to influence her professional judgment.[53] While ABA Standard 3-1.7(f) prohibits only the impropriety itself, NDAA Standard 1-3.1 prohibits both the appearance of and the potential for impropriety.

ABA Standard 3-1.2(c) does say that prosecutors should avoid the appearance of impropriety and thus could be read in conjunction with ABA Standard 3-1.7(f) to produce a result similar to NDAA Standard 1-3.1.[54] But the language of NDAA Standard 1-3.1 is still stronger as it directs the prosecutor to consider the potential for conflict, even when that conflict may not be apparent yet.[55] Thus, Standard 1-3.1 arguably discourages elected prosecutors from accepting contributions from police unions, which creates a potential for conflict in future cases involving officer misconduct and would create the appearance of impropriety when an investigation of an officer is ongoing.[56]

However, like the ABA Standards, the NDAA Standards do not provide a reliable procedure for prosecutors to follow to prevent impropriety or the appearance thereof. Per Section 1-3.3(d), a prosecutor should recuse herself where her personal interest “would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.”[57] Additionally, Standard 1-3.3(e) requires prosecutors to immediately report any potential conflicts to the chief prosecutor.[58] Thus, it would likely be up to the chief prosecutor to decide who counts as a “fair-minded, objective observer.”[59] But these provisions are unlikely to achieve consistent and objective results because the district attorney herself is typically the chief prosecutor.[60] Of course, the attorney general could be consulted for an opinion,[61] but as with the ABA Standards, the NDAA Standards provide no substantive criteria that would inform an inquiry into whether a campaign contribution “would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.”[62]

Thus, applying the 2009 NDAA Standards yields a strong argument that if prosecutors accept money from police unions, they should recuse themselves from cases with officer defendants. But in practice, the Standards still leave prosecutors enough discretion to determine otherwise.

2.     NDAA Standards, 2023 Edition

As of 2023, NDAA Standard 1-3.4 states that in general, a “local or state prosecutor with primary jurisdiction should retain the authority to prosecute cases involving ‘Officer Involved Shootings.’”[63] This is a clear rejection of the pushes to prevent all local prosecutors from handling cases involving local officers.[64] However, the NDAA Standards qualify this with two scenarios where “recusal should be considered”: first, where the prosecutor “believes that his/her relationship with the involved local law enforcement agency would impact the prosecutor objectively handling the case,”[65] and second, where “the prosecutor believes that public perception of the integrity of his/her office and public confidence in the handling of the case would negatively be impacted.”[66] Standards 1-3.4(c)-(d) further specify that prosecutors should make all evidence available if using a grand jury and should “insist on as much transparency as possible.”[67]

Standard 1-3.4 imposes a lower standard than Standards 1-3.1 and 1-3.3(d), and thus, on its face appears to weaken a prosecutor’s duty to avoid the appearance of impropriety in police shooting cases. Standard 1-3.1 says that prosecutors should not hold interests that “are likely to create a reasonable appearance of conflict” with their prosecutorial duties,[68] while Standard 1.3-3(d) says a prosecutor should recuse herself where an objective person may find her judgment compromised.[69] In contrast, Standard 1-3.4(a) merely says that a prosecutor should “consider” recusal when she “believes” her relationship with law enforcement would impact her judgment.[70] Standard 1-3.4(b) similarly says a prosecutor should “consider” recusal where she “believes” that public confidence in the case and her office’s integrity would be impacted.[71]

However, Standard 1-3.4 does not have to contradict the conflict-of-interest standards set in Standards 1-3.1 and 1-3.3(d). A prosecutor may believe her relationship with law enforcement would impact her ability to objectively handle the case, triggering application of Standard 1-3.4(a)—but that does not mean that she violated Standard 1-3.1 by “hold[ing] an interest or engag[ing] in activities, financial or otherwise, that conflict, have a significant potential to conflict, or are likely to create a reasonable appearance of conflict with the duties and responsibilities of the prosecutor’s office.”[72] For instance, a prosecutor could be friendly with law enforcement and know herself to have bias, despite not having committed anything improper. A prosecutor’s recusal per Standard 1-3.4(a) also does not necessarily mean that her “personal interests . . . would [have] cause[d] a fair-minded, objective observer to conclude that [her] neutrality, judgment, or ability to administer the law in an objective manner may [have been] compromised.”[73] An objective observer may conclude that the prosecutor is being overly cautious rather than reasonable.

Likewise, a prosecutor might violate Standard 1-3.1 and trigger application of Standard 1-3.3(d) for her recusal—but that does not mean she herself personally believes her relationship with law enforcement would compromise her objectivity. Thus, Standard 1-3.4(a) may not even apply.[74] Additionally, the fact that the prosecutor does not believe her objectivity to be compromised has no bearing on whether a “fair-minded, objective observer” would agree and thus is not determinative of whether she ought to recuse herself.[75]

The purpose of Standard 1-3.4(a), therefore, does not override the conflict-of-interest standards for prosecutors in cases of police shootings, but rather encourages prosecutors without obvious conflicts to consider whether their objectivity may be compromised in some other way. A similar analysis can be done for Standard 1-3.4(b). A prosecutor may believe public confidence in her investigation would be compromised if she handles the case, regardless of whether any impropriety or appearance thereof ever occurred.[76] Standard 1-3.4(b) calls on prosecutors to consider whether other factors outside of their own conduct might undermine the public’s faith in the process. It does not mean that the appearance of impropriety with respect to a police shooting case no longer necessitates recusal per Standards 1-3.1 and 1-3.3(d).[77]

Between the Model Rules, the ABA Standards, and the NDAA Standards, the last provides the strongest argument that accepting campaign contributions from police unions is outside the bounds of ethical prosecutorial conduct and that prosecutors who accept such contributions should recuse themselves from cases involving police shootings and other forms of officer misconduct. The NDAA Standards also encourage prosecutors to consider how both their own conduct and factors unrelated to their conduct may hinder the prosecution’s effectiveness in police shooting cases.

However, even if adopted by state legislatures, the NDAA Standards would still be weak at regulating prosecutorial conflicts of interests arising from campaign contributions for two reasons. First, although the NDAA Standards say that prosecutors should recuse themselves when necessary to avoid the appearance of impropriety, they offer no criteria for determining if and when campaign contribution conflicts create such an appearance. Second, they provide no reliable mechanism for ensuring that district attorneys recuse themselves from officer misconduct investigations when their involvement would create the appearance of impropriety. Thus, states need to tackle this issue directly. To determine how states might approach the issue, this Note turns to ethical guidance for different actors in the judicial system that exercise similar levels of discretion and are also usually elected: judges.

II. Examining Existing Judicial Ethics Standards with Respect to Campaign Contributions

The law of judicial disqualification is a useful point of comparison for the issue of prosecutorial recusal on the basis of campaign contributions for two reasons.[78] First, at the end of an investigation, prosecutors must make a quasi-judicial determination: whether to press charges against a defendant.[79] Second, as Part II will show, the ethics of judicial disqualification have become more attuned in recent decades to the unique conflict of interest created when a judge has accepted campaign contributions from someone awaiting her judgment. These circumstances are analogous to when a prosecutor has accepted campaign contributions from someone awaiting her decision on whether to initiate a prosecution. Therefore, judicial ethics in this respect can provide crucial guidance to states in developing regulatory solutions.

Part II will be broken into the following four Sections. Part II.A will focus on what the ABA Model Code of Judicial Conduct says about conflicts from campaign contributions. Part II.B will discuss the standard for judicial disqualification set in Caperton v. Massey. Part II.C will discuss the various state models for judicial disqualification that arose in the aftermath of Caperton. Finally, Part II.D will discuss the arguments against disqualifying judges on the basis of campaign contributions.

A.     The ABA Model Code of Judicial Conduct Encourages States to Regulate the Unique Conflicts of Interest Posed by Judicial Campaign Contributions.

The ABA Model Code of Judicial Conduct (MCJC) takes a strong stance on conflicts of interest stemming from judicial campaign contributions.

Rule 2.11(A) of the MCJC provides that “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”[80] Rule 2.11(A)(4) further specifies that a judge’s impartiality might reasonably be questioned where:

The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous [insert number] year[s] made aggregate contributions to the judge’s campaign in an amount that [is greater than $[insert amount] for an individual or $[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity].[81]

This language, adopted in 1999, encourages states to tackle judicial conflicts of interest due to campaign contributions head-on by determining at what point a contribution is too high to avoid the appearance of impropriety. Before the adoption of this rule, the MCJC simply noted that “[t]hough not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge . . . may be relevant to disqualification.”[82] Thus, the difference between the 1990 MCJC and post-1999 versions of the MCJC is that the former only suggests that judicial campaign contributions have the potential to create the appearance of impropriety, while the latter conclusively states that judicial campaign contributions will create the appearance of impropriety, and thus require recusal, if they meet a certain threshold and have taken place under certain circumstances.[83]

All fifty states have adopted some version or part of the MCJC into their own codes of judicial ethics or used them as the basis for their revised codes of judicial conduct.[84] The most common standard for judicial disqualification is that a judge must recuse herself where a reasonable person might question her impartiality.[85] However, there is room for debate and disagreement as to when exactly questioning a judge’s impartiality is reasonable. A significant number of states have addressed how campaign contributions may relate to judicial disqualification in their judicial ethics codes or by statute.[86] The most precipitous legal decision with respect to this question has been the Supreme Court case of Caperton v. A.T. Massey Coal Company, Inc., which held that judicial campaign contributions have the potential to violate the Due Process Clause of the Fourteenth Amendment but noted that such instances will be exceedingly rare.[87] The Caperton decision was far more influential than the MCJC in bringing the issue of judicial disqualification based on campaign contributions to the attention of state judiciaries and legislatures. The following Section will explain the constitutional limits on judges presiding over the cases of their own campaign contributors as per the Supreme Court’s decision in Caperton. Part II.C will then discuss how states have chosen to regulate this issue in response to Caperton.

B.     The Caperton Test Sets a Constitutional Threshold for Judicial Disqualification on the Basis of Campaign Contributions.

In Caperton v. Massey, the Supreme Court held that a litigant’s campaign contributions to an elected judge created a conflict of interest so improper that the Constitution mandated judicial disqualification.[88] This was a landmark decision because the Court had long construed very narrowly the kinds of conflicts that lead to constitutionally mandated judicial disqualification.[89] In Tumey v. Ohio, for example, the Court held that the Due Process Clause incorporates the common-law rule that a judge must recuse herself when she has “a direct, personal, substantial, pecuniary interest” in a case.[90] The common law also holds that personal bias and prejudice are not sufficient reasons to disqualify a judge.[91] Thus, the Court has held that “matters of kinship, personal bias, state policy, [and] remoteness of interest” do not breach constitutional boundaries and can be regulated by legislatures instead.[92]

Still, the Supreme Court has recognized “new problems . . . that were not discussed at common law” and accordingly has “identified additional instances which, as an objective matter, require [judicial] recusal.”[93] Before Caperton, these instances were (1) where the judge had a financial interest in the case that did not rise to the level of directness required in common law, and (2) where the case was a criminal contempt proceeding that had been ordered by the judge herself.[94] In both instances the Court has stressed that the criteria for disqualification “cannot be defined with precision. Circumstances and relationships must be considered.”[95] Thus, not every case where a judge has a less-than-direct financial interest in the outcome will require judicial disqualification. Similarly, not every criminal contempt proceeding will involve circumstances that will likely prevent the judge from “maintain[ing] that calm detachment necessary for fair adjudication.”[96] The key inquiry is “not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”[97]

Crucially, the Court in Caperton identified campaign contributions to elected judges as a third instance that may result in mandatory judicial disqualification by creating a “constitutionally intolerable probability of actual bias.”[98] Caperton held that “there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”[99] The Court also identified factors relevant to this inquiry: the relative size of the contribution, the total amount spent in the election, and the “apparent effect” of the contribution on the election outcome.[100]

The facts of Caperton struck the Court as an “extreme case” that necessitated the development of this new rule.[101] Don Blankenship, the chief executive officer of defendant A.T. Massey Coal Company, had contributed[102] $3 million to the campaign of Justice Brent Benjamin, who presided over the case.[103] Blankenship’s contributions were more than all other contributions to Benjamin’s campaign combined and three times the amount spent by the Benjamin’s own campaign committee.[104] Benjamin defeated the incumbent by just 6.6 percentage points.[105] Regardless of whether Blankenship’s contributions actually caused Benjamin to win the election, these factors were relevant in determining whether the contributions “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.”[106]

The Court also considered the temporal relationship between Blankenship’s campaign contributions and the pending case:

It was reasonably foreseeable when the campaign contributions were made that the pending case would be before the newly elected justice. The $50 million adverse jury verdict had been entered before the election, and the West Virginia Supreme Court of Appeals was the next step once the state trial court finished dealing with post-trial motions. So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor’s company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome.[107]

In light of all of these facts, the Court found that Justice Benjamin’s involvement in the case presented more than just the appearance of impropriety and constituted a “serious, objective risk of actual bias” that violated the Due Process Clause.[108]

The Court went to great lengths in Caperton to make it clear that most cases with judicial conflicts of interest arising from campaign contributions would not meet the threshold for unconstitutionality.[109] But it also wrapped up its opinion with a brief discussion of the role of state-adopted codes of judicial conduct in regulating such instances.[110] The Court highlighted, for example, that almost all states had codified Canon 2 of the ABA Model Code of Judicial Conduct—“A judge shall avoid impropriety and the appearance of impropriety”—which provided more protection than the Constitution against judicial conflicts of interest.[111] It also noted that some states already had regulations that explicitly required judicial disqualification based on a party’s campaign contributions.[112]

Although the Court did not explicitly say that states should adopt stricter standards in their judicial codes of conduct, this closing discussion reads as a nod towards the appearance of impropriety standard and the explicit recusal rules for judicial campaign contributions.[113] A major concern of the dissent was that the decision would open the floodgates to inappropriate motions for judicial disqualification based on bias.[114] The majority thus highlighted the ways in which states already regulated judicial conflicts of interest to show that the burden of dealing with judicial bias would not (or should not) fall on the courts.[115] In doing so, the majority essentially signaled to states and to litigants that judicial bias in the election context was an issue the legislatures needed to address promptly, because the courts were not going to solve the problem for them.

C.     After Caperton, States Created New Models for Judicial Disqualification on the Basis of Campaign Contributions.

A significant number of states did take Caperton as an impetus to provide clarity as to when judicial disqualification is warranted in cases involving campaign contributors. Before Caperton, only Alabama and Mississippi had rules addressing this issue.[116] Today, many state codes of judicial conduct touch on the issue with varying degrees of depth. A significant number of states do not have a rule or test but instead note that “[t]hough not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may be relevant to disqualification.”[117] Some states have recognized the decision in Caperton but rejected extending disqualification on the basis of campaign contributions beyond where there is a violation of due process. Fifteen states regulate judicial disqualification on the basis of campaign contributions with greater specificity and nuance than merely noting that disqualification may be implicated in such instances or by merely affirming the Caperton standard. This Section will discuss the various ways in which these fifteen states have determined that the appearance of impropriety standard can be met, and thus warrant judicial disqualification, without violating due process.

There are two overarching methods to approach the inquiry. The first approach is to craft a rule for judicial disqualification based on the specific monetary amount of a contribution. The second approach does not deem any particular monetary amount as suspect but instead indicates the factors and circumstances to be considered in determining whether campaign contributions warrant judicial disqualification.

1.     Model One: Monetary Triggers

Seven states have taken the first approach of treating certain monetary amounts as automatically suspect. In California, Arizona, New York, Utah, and Vermont, specific monetary triggers require judicial disqualification.[118] In Alabama, the monetary trigger creates a rebuttable presumption that judicial disqualification is required.[119] In Mississippi, the Code of Judicial Ethics indicates that “[a] party may file a motion to recuse a judge” on the basis of the monetary trigger, but the decision is ultimately up to the court’s discretion.[120] Each of these seven states has its own unique approach to determining what specific dollar amount in campaign contributions, combined with certain attendant circumstances, is inherently suspect.

Some states have set an absolute threshold. In California, more than $1,500 worth of campaign contributions from a party automatically disqualifies a judge from presiding over an action.[121] Arizona requires disqualification where a party’s contributions are greater than the legal limit for contributions to a candidate.[122] While Utah is remarkable for its very low threshold of $50,[123] Vermont goes even further by requiring disqualification when a party has made a campaign contribution of “any amount.”[124]

Some of the states have set differing monetary thresholds for different circumstances and contexts. One point of distinction is the type of judicial race. Alabama, for example, requires judicial disqualification when a party’s contributions exceed a certain percentage of the total campaign contributions that a judge received.[125] The percentage threshold varies based on the type of judicial race—10 percent for a statewide appellate court race, 15 percent for a circuit court race, and 25 percent for a district court race.[126] In a similar vein, a party in Mississippi may file a motion for judicial disqualification when a “major donor” is a party to the action.[127] The threshold for being a “major donor” is $2,000 for Supreme Court justices and Court of Appeals judges and $1,000 for all other court judges.[128]

New York distinguishes between when the contributions in question have been made individually or collectively. Recusal is required when an individual has contributed $2,500 or more to the judge’s campaign, or when a party, the party’s counsel, and the law firm of the party’s counsel have collectively contributed $3,500 or more.[129]

While the other six states do not make the same distinction as New York, they do address the possibility of contributions coming from multiple individuals on one side of an adverse action. In Arizona and Utah, the threshold can be met by the “aggregate” contributions coming from a party to the action, a party’s counsel, or the law firm of the party’s counsel.[130] California’s statute specifies that the $1,500 contribution threshold can be met by a “party or a lawyer in the proceeding,” but the contributions between a party and its lawyer cannot be aggregated to meet the threshold.[131] In Vermont, a contribution by a party, its lawyer, or its lawyer’s firm is enough to disqualify a judge.[132] Whether these contributions can be aggregated is irrelevant because any amount in contributions is sufficient.[133] In Mississippi, a party may move for recusal when either a party or the counsel of record is a major donor.[134] Alabama’s statute is the most comprehensive in defining what constitutes a “party” for the purposes of judicial disqualification based on campaign contributions. It includes the parties to the action, the parties’ counsel, other lawyers in practice with the parties’ counsel, the parties’ immediate family members, “[a]ny holder of five percent or more of the value of a party that is a corporation, limited liability company, firm, partnership, or any other business entity,” and “[a]ffiliates or subsidiaries of a corporate party.”[135]

Each of the seven states has limited its monetary triggers to apply only within specific timeframes, though the time limits set varies greatly among them. In New York, Utah, Arizona, and Vermont, the aggregate contributions must have been made within the past two, three, four, and five years, respectively.[136] In California, the $1,500 in campaign contributions must have occurred either during the judge’s last election cycle and within the past six years, or “in anticipation of an upcoming election.”[137] In Alabama, the threshold for campaign contributions is only applicable to the “immediately preceding election.”[138] Similarly, a party is only a “major donor” in Mississippi if the contributions in question were made “in the judge’s most recent election campaign.”[139]

2.     Model Two: A Factor-Based Approach

In eight states,[140] the threshold for judicial disqualification based on campaign contributions is not set at a particular amount. Rather, the test is applied on a case-by-case basis, taking into account the various circumstances surrounding the campaign contribution much like the Court considered in Caperton. Each of these states rests the inquiry on whether a reasonable person would believe the contributions to affect the impartiality of the judge, for which the following factors are relevant: the size of the contributions in question, their relative significance based on the judge’s total funds raised, and how the contributions relate temporally to the proceeding at issue.[141]

Some states consider public perception as critical to the inquiry. In Pennsylvania, for instance, whether contributions would raise the appearance of impropriety is an “objective [inquiry] involving the public perception of large contributions and their effect on the judge’s ability to be impartial.”[142] The Pennsylvania Judicial Conduct Board has clarified that it “will apply a reasonable person standard and will not be guided by what some might consider reasonable by those regularly involved in political campaigns.”[143] Additionally, “[a] judge’s strained view of the public perception of a sizable contribution when faced with a disqualification issue will not be considered favorably by the Board. . . . a contribution of several thousand dollars will almost always require an analysis of whether disqualification is warranted because of the public perception resulting from such a [sic] large contributions and its effect on the judge’s ability to be fair and impartial.”[144]

The states that opt for this factor-based approach each clarify that the mere existence of a conflict from campaign contributions does not per se warrant judicial disqualification. But by explicitly holding campaign contribution conflicts to the appearance of impropriety standard, and by specifying how that appearance of impropriety standard may be met, these states make clear that such conflicts need not violate due process to trigger judicial disqualification.

D.    Arguments Against Judicial Disqualification on the Basis of Campaign Contributions

Although many states have enumerated standards for dealing with conflicts of interest created by judicial campaign contributions, some have expressly rejected the notion that campaign contributions may ever warrant judicial disqualification unless the due process standard in Caperton is met.[145] This Section explains the three main reasons why courts are unlikely to offer this kind of relief and why some courts have fervently rejected extending judicial disqualification for campaign contributions beyond where the Constitution requires it.

1.     Practicality, Expediency, and Abuse

A key strain of the arguments against judicial disqualification on the basis of campaign contributions is that such disqualifications would be impracticable, clog the judiciary, and be ripe for abuse.

For example, in his Caperton dissent, Justice Antonin Scalia strongly criticized the majority for adding to the “vast arsenal of lawyerly gambits what will come to be known as the Caperton claim.”[146] He and the three other dissenting justices argued that by suggesting that campaign contributions can result in a due process violation, the Court had opened the floodgates to new claims of judicial bias that would eventually prove the test ill-conceived.[147] Chief Justice John G. Roberts compared the decision to United States v. Halper, in which the Court applied the Double Jeopardy Clause to a case involving civil penalties.[148] The Court overruled that case just eight years after deciding it due to “the wide variety of novel double jeopardy claims” proving the Halper standard “unworkable.”[149] Similarly, Chief Justice Roberts believed the Court would “come to regret this decision as well, when courts are forced to deal with a wide variety of Caperton motions, each claiming the title of ‘most extreme’ or ‘most disproportionate.’”[150]

Other courts have echoed similar concerns. According to the Nevada Supreme Court, a rule disqualifying judges solely on the basis of campaign contributions “would ‘severely and intolerably’ obstruct the conduct of judicial business.”[151] The Supreme Court of Florida found that judges presiding over cases involving their campaign contributors “are normal incidents in a campaign for public office.”[152] These perspectives are understandable, as the very nature of having an elected judiciary means that conflicts from campaign contributors will show up everywhere, especially since local lawyers are more likely than others to pay attention and contribute to judicial politics.[153] As the Texas Court of Appeals has stated:

It is not surprising that attorneys are the principal source of contributions in a judicial election. We judicially know that voter apathy is a continuing problem, especially in judicial races and particularly in contests for a seat on an appellate bench. A candidate for the bench who relies solely on contributions from nonlawyers must reconcile himself to staging a campaign on something less than a shoestring. If a judge cannot sit on a case in which a contributing lawyer is involved as counsel, judges who have been elected would have to recuse themselves in perhaps a majority of the cases filed in their courts. Perhaps the next step would be to require a judge to recuse himself in any case in which one of the lawyers had refused to contribute or, worse still, had contributed to that judge’s opponent.[154]

The Michigan Supreme Court has also expressed concern over how parties could abuse the rule to ensure their cases are heard by the judges they want: “For if a contribution to a judicial candidate can compel a judge’s disqualification, then a contribution to an opponent, or the funding of an opposition campaign, must operate in a similar fashion. If so, it would be a simple expedient for a party or a lawyer to ‘mold’ the court that will hear his or her cases by tailoring contributions and opposition contributions.”[155] This particular concern over litigants abusing campaign contribution rules to secure their preferred judge is not new. The ABA Ad Hoc Committee on Judicial Campaign Finance considered the issue while drafting the language that is now MCJC Rule 2.11(A)(4) but ultimately found that tailoring the rule to prohibit this abuse was “unworkable.”[156]

The practicality strain of argument provides a decent case against the per se disqualification of judges due to campaign contributions in jurisdictions where lawyers routinely contribute to judges’ reelection efforts. Per se disqualification in such jurisdictions would likely result in an impracticable level of disqualification due to the ubiquity of lawyers making judicial contributions.

But these criticisms against per se disqualification are a red herring. Regulations designed to prevent the appearance of impropriety do not have to require judicial disqualification in every single instance of a campaign contribution conflict. Of the fifteen states that have adopted some model for judicial disqualification on the basis of campaign contributions, only one state has required disqualification on the basis of any amount, and even that limitation is qualified by a five-year window of applicability.[157] Seven states set a clear monetary threshold, and eight specify factors to be considered in evaluating whether there is an appearance of impropriety.[158] Although these regulations vary greatly, they all rest on the following two premises: (1) the appearance of impropriety must result in disqualification, and (2) campaign contribution conflicts can create the appearance of impropriety, even if they do not rise to a due process violation. The conclusion is that there must be some standard for determining when a campaign contribution conflict results in the appearance of impropriety. The most manageable and effective standard will vary from state to state and depend on local context. For example, if a certain amount of contributions from lawyers is expected and normal, then a good regulation would take that into account.

Furthermore, the potential for abuse is likely overstated and sometimes unfounded. For example, Justices Scalia’s and Roberts’s predictions about a flood of Caperton motions have not come to fruition—such motions are extremely rare and even less likely to be granted.[159] Additionally, while a truly determined lawyer could strategically make donations to avoid a particular judge, this concern seems extremely speculative, especially when weighed against the real threat that campaign contributions can pose to judicial impartiality and public confidence in the judiciary.[160]

2.     Free Speech and Democratic Interests

Another criticism of judicial disqualification argues that it is contrary to the democratic process and chills political speech by discouraging campaign contributions.[161] The commentary to the Wisconsin Code of Judicial Conduct, for example, explains that disqualifying judges per se on the basis of campaign contributions “would have the effect of discouraging ‘the broadest possible participation in financing campaigns by all citizens of the state’ through voluntary contributions . . . because it would deprive citizens who lawfully contribute to judicial campaigns, whether individually or through an organization, of access to the judges they help elect.”[162] The Michigan Supreme Court has expressed a similar sentiment, emphasizing the importance of the public’s campaign contributions to a successful democratic process:

[T]he most notable strength of our system of judicial selection is that it requires candidates for judicial office to go out among the electorate and explain why they should be placed in office. . . . [I]t is better that campaigns be well-funded and informative, and that candidates be afforded the fullest opportunity to explain their differing perspectives on the judicial role, than that campaigns be poorly funded and result in candidates securing election on the basis of little more than a popular surname.[163]

This democratic concern is a strong reason not to adopt per se judicial disqualification on the basis of campaign contributions. Campaign contributions are regarded as political speech in the American context because contributions express approval for a particular candidate and assist that candidate in spreading her message.[164] If a lawyer believes that a contribution to a judge she really likes would prevent that judge from hearing any of her cases, then the lawyer probably would not donate anything. This chilling effect could distort the democratic process and lead to suboptimal outcomes by discouraging lawyers from donating to the best judges.

While the concern about democratic distortion is reasonable, it does not mean that disqualification rules should be dismissed; rather, disqualification rules should be designed with this consideration in mind. A rule that sets a clear and objective threshold for disqualification can still allow lawyers to donate meaningful amounts without creating an appearance of impropriety.

3.     The Integrity of the Judiciary

Another strain of argument invoked against judicial disqualification is that the practice reflects poorly on the integrity of the judiciary and insults judges’ ability to be impartial. Chief Justice Roberts expressed this sentiment in his Caperton dissent, arguing that the majority’s decision “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”[165] The Chief Justice emphasized that judges should be trusted to uphold their oaths impartially, as “[t]here is a presumption of honesty and integrity in those serving as adjudicators.”[166] Furthermore, constitutionally mandated judicial disqualification has long been construed so narrowly in part because “[w]e should not, even by inadvertence, ‘impute to judges a lack of firmness, wisdom, or honor.’”[167]

Some state judiciaries have also endorsed the idea that judicial disqualification challenges the integrity of the courts. The Supreme Court of Wisconsin, for example, notes in the commentary to its Code of Judicial Conduct that “[d]isqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity.”[168] In a similar vein, the Florida Supreme Court noted in MacKenzie v. Super Kids Bargain that “[w]e cannot operate a judicial system, or indeed a society, on the basis of the factually unsubstantiated perceptions of the cynical and distrustful.”[169]

The criticism that judicial disqualification insults the integrity of the judiciary is based on a romanticized vision of the courts and thus is not particularly persuasive. The fact that judges can sometimes be impermissibly biased is not controversial. Even the common law, which gives judges great deference in controlling their own biases, requires disqualification where the judge has a direct, pecuniary interest in the case.[170] And before Caperton, the Supreme Court had already expanded upon the common-law rule to include cases with less direct interests and certain cases involving criminal contempt proceedings.[171] Judges are also generally expected to recuse themselves from matters involving family members.[172] Each of these rules is a recognition that judges cannot always be impartial, even with the noblest of intentions. It is unclear why disqualification on the basis of campaign contributions is more degrading to the profession than any of these other bases.

In sum, critics of judicial disqualification provide strong arguments against the per se disqualification of judges based on campaign contributions. But they completely miss the point of disqualification laws: to prevent the appearance of impropriety. Just because regulation can have drawbacks does not mean that the issue should be left untouched. The various state models discussed in Part II demonstrate that disqualification rules can be thoughtfully crafted to minimize undesirable consequences and to balance institutional limitations with the need to cultivate public confidence in the judiciary. The idea that campaign contributions present little to no risk of creating the appearance of impropriety should not be assumed simply because it is most convenient for the institution. As one scholar remarked, “One could reasonably conclude that an attorney’s $10,000 campaign contribution to the judge who is handling his case creates a fair question about the ability of the judge to decide a case according to the law, not the money. That the courts say otherwise suggests that they perceive corruption differently than most others do.”[173]

III. Application of Judicial Disqualification Ethics to the Prosecutor’s Context

Part III draws on the discourse surrounding judicial disqualification due to campaign contributions to offer legislative solutions to the conflict of interest created when a prosecutor who has accepted campaign contributions from a police union is responsible for investigating a police shooting. Part III.A provides a normative argument for why states should consider judicial ethics to be relevant to prosecutorial ethics in the context of campaign contribution conflicts. Part III.B then evaluates the applicability and desirability of the various judicial disqualification models with the goal of helping lawmakers fill the two key gaps in the ethical standards for prosecutors: (1) criteria for determining when prosecutorial campaign contributions create an appearance of impropriety, and (2) a reliable mechanism for ensuring recusal when the appearance of impropriety standard is met.

A.     Rules for Judicial Disqualification on the Basis of Campaign Contributions Should Be Extended to the Prosecutorial Context.

The judicial and prosecutorial roles share enough similarities to warrant an application of judicial disqualification ethics to prosecutors in the context of campaign contributions.[174] The prosecutor is an “administrator of justice” with the responsibility to “exercise sound discretion and independent judgment.”[175] The role of the prosecutor has three main functions: administrative, adversarial, and quasi-judicial.[176] The quasi-judicial role is most heavily implicated when a prosecutor determines what charges to bring, if any, and whether a plea bargain is appropriate.[177] In making these decisions, the prosecutor considers how the law applies to the facts to evaluate the likelihood of a successful prosecution.[178] Her decision to pursue or decline to press charges must be made impartially and with the public’s best interests in mind.[179]

Of course, prosecutors have much broader discretion in making charging decisions than judges typically have in making their rulings. Prosecutors may also consider factors other than how the law applies to the facts when making charging decisions. Such factors may include the unique circumstances of the defendant, risks to public safety, strain on public resources, and subjective judgments about public policy.[180] However, this does not detract from the quasi-judicial nature of the decision to press charges against a defendant. After all, judges can sometimes consider similar factors and exercise similarly broad discretion where the law allows it, particularly in the context of sentencing.[181] If anything, prosecutors’ broad discretionary power underscores the importance of maintaining robust ethical rules that curb the appearance of impropriety.[182]

In light of the prosecutor’s unique function, courts have repeatedly drawn analogies between prosecutorial and judicial conduct.[183] In Imbler v. Pachtman, for example, the Supreme Court upheld absolute immunity for the decision to initiate prosecution.[184] The Court justified its holding in part by appealing to the common law notion that a prosecutor’s charging decisions have a “quasi-judicial” nature:

Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials judge, grand juror, and prosecutor exercise a discretionary judgment on the basis of evidence presented to them. . . . It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as “quasi-judicial” officers, and their immunities being termed “quasi-judicial” as well.[185]

This does not mean that the ethical standards for judges and prosecutors should be the same in all circumstances. Prosecutors cannot have the same kind of disinterestedness and impartiality as a judge because, in addition to being a minister of justice, a prosecutor must also be a zealous advocate for the public interest.[186] Her responsibility as an advocate for the public interest will necessarily factor into charging decisions—for example, she is allowed to make judgments about which types of crimes her office will aggressively pursue as a matter of policy. But with respect to individual defendants, she must maintain a level of disinterestedness similar to that of a judge. She cannot solely consider the interests of any particular individual, client, or group, but rather must take into account and balance all the interests involved.[187]

Other differences between the judicial and prosecutorial contexts are no reason to discard the analogy for the purpose of informing ethical standards. Judicial disqualification on the basis of campaign contributions almost always has to do with the contributions of the parties, lawyers, or law firms in a proceeding. Before a prosecutor decides whether to bring charges against an officer accused of misconduct, that officer is neither a lawyer, law firm, nor yet a party in the case. But accepting contributions from the officer’s police union is not a far step from these categories, especially since police unions typically are responsible for the legal representation of their officers.[188] Just as a lawyer’s interests in a proceeding are aligned with her client’s interests in that proceeding, a police union’s interest in an investigation will align with its officer’s interests in that investigation. Therefore, such contributions will have similar potential to create the appearance of impropriety.

Because determining whether to press charges against a police officer who shoots a civilian is a quasi-judicial function to which a prosecutor has a duty of impartiality, the judicial ethics rules and models described in Part II can offer guidance for developing a prosecutorial ethics framework for police union campaign contributions. The following Section considers how the standards for judicial disqualification could apply to the circumstances of a prosecutor exercising her quasi-judicial function in the investigation of a police shooting.

B.     Statutorily Adopting the Caperton Standard for Prosecutorial Recusal Would be Ineffective at Governing Conflicts Arising from Campaign Contributions.

A statute that adopted the Caperton standard would be ineffective at governing conflicts arising from prosecutorial campaign contributions. Such a statute would require prosecutorial recusal from an investigation when there is a “serious risk of actual bias.”[189] There would be a serious risk of actual bias when “based on objective and reasonable perceptions . . . a person with a personal stake in a particular case had a significant and disproportionate influence in placing the [prosecutor] on the case by raising funds or directing the [prosecutor’s] election campaign when the case was pending or imminent.”[190] This inquiry would take into account the relevant size of the contribution, the total spending in the election, and the apparent effect of the contribution on the election outcome.[191]

Most instances of police union contributions to a district attorney’s campaign will not rise to the high standard set in Caperton. In Caperton, Blankenship contributed 300 percent more than the amount spent by the justice’s own campaign committee and more than both candidates spent combined.[192] Blankenship’s $3 million contribution was also more than all other campaign contributions combined.[193]

Although it is highly unlikely that police union contributions to any elected official’s campaign will be as disproportionate as the facts in Caperton, Caperton does not specify at what point a contribution meets the “significant and disproportionate influence” standard.[194] The closest example would be Hestrin, who received $149,300 from law enforcement contributions in 2014, out of a total $490,000 raised.[195] This is only 30 percent, however, and a far cry from the fact pattern in Caperton.

Temporality is also an important factor in Caperton. O’Malley accepting $10,000 from the Fremont Police Association while she was also responsible for investigating the president of that union is naturally suspect and is comparable to Justice Benjamin accepting the contribution from Blankenship when it was foreseeable that Blankenship’s case would come before him.[196] However, because $10,000 is a small fraction of the $1.07 million that O’Malley spent in 2018, this scenario is again highly unlikely to rise to the “serious risk of actual bias” standard defined in Caperton.[197] Therefore, this standard would do little to prevent the appearance of impropriety in most, if not all, cases where a prosecutor handles a police shooting while accepting contributions from a police union. Of course, a state could adopt the phrase “serious risk of actual bias” and choose to define it differently. It could do so using either a monetary trigger or factor-based approach, as described in Part II.

C.    While Monetary Triggers and Factor-Based Approaches Are Both Useful Models, Monetary Triggers Will Likely Be More Effective in Addressing the Appearance of Impropriety.

There are pros and cons to adopting either a monetary trigger or a factor-based approach with respect to prosecutorial recusal on the basis of campaign contributions. A statute that triggers prosecutorial recusal from police shooting cases on the basis of a specific monetary amount would have the benefit of eliminating both actual bias and the appearance of impropriety in a reliable and consistent manner. The legislature would have to determine the exact threshold at which the appearance of impropriety arises, a number that some may regard as arbitrary. However, states that have already adopted this kind of monetary trigger with respect to judicial campaign contributions surely could determine a threshold for prosecutors. The primary downside of such a rule is that it may trigger recusal where it is unnecessary.

The alternative would be a factor-based approach so that recusal would be evaluated on a case-by-case basis. Such a statute would specify relevant factors to consider in determining whether a reasonable person would believe the contributions to affect the impartiality of the prosecutor investigating the shooting. These factors likely would include the size of the contributions, their relative significance based on the prosecutor’s total funds raised, and how the contributions relate temporally to the investigation in question.[198] The benefit of this approach is that it can be used more flexibly so that recusal occurs only where the circumstances meet the appearance-of-impropriety standard. But flexibility is also a major weakness of this approach as it may not lead to consistent outcomes and still leaves room for bias, especially if the district attorney with the conflict is the one doing the analysis. A solution could be having an independent third party apply the factors to determine whether the prosecutor investigating the shooting while having received a contribution from the police union would create the appearance of impropriety.

But even with a third-party analysis, adding yet another discretionary element to the equation might do little to reduce the appearance of impropriety when a district attorney investigates a police shooting while having accepted contributions from a police union. Lack of confidence in independent review may be exacerbated by the widespread distrust the public has in the ability of the judiciary to hold police officers accountable for brutality in recent years.[199] From the perspective of public confidence, a rule for prosecutorial recusal that is based on a monetary amount, or even a percentage, could help restore legitimacy to the judicial process with an objective metric. That number would be up to each state to decide and dependent on the local context. Furthermore, a law that uses a monetary trigger can also incorporate elements of the factor-based approach to provide some nuance, as do all the state models that use monetary triggers for judicial disqualification.[200]

D.    Critiques of Judicial Disqualification Are Unconvincing When Applied to the Prosecutorial Context.

This final Section of Part III discusses how the arguments against judicial disqualification can similarly be applied against proposals for prosecutorial recusal on the basis of campaign contributions.

The first critique of judicial disqualification on the basis of campaign contributions, which may also be levied against prosecutorial recusal, is that it is impracticable. As noted earlier, however, the point of judicial disqualification is to only be applicable where there is an appearance of impropriety, and most campaign contributions will not rise to that level. Because judicial disqualification on the basis of campaign contributions is applied so rarely, it does not have the effect of clogging the courts, and motions to disqualify are not that common.[201] This criticism has a similar response with respect to prosecutorial recusal. The proposal here is specifically tailored to disqualify a prosecutor based on police union contributions with respect to police shootings and other officer misconduct. This would likely be a narrow subset of the cases that appear on the prosecutor’s docket. Therefore, the impact of such a rule would not present a meaningful disruption to a prosecutor’s work.

Another criticism is that judicial disqualification is against the public’s interest in the democratic process and creates a chilling effect on campaign contributions,[202] which are a constitutionally protected form of speech and are important to the success of the electoral process.[203] In a similar vein, some have argued that disqualifying prosecutors from investigating the police cuts against the public’s interest in having their elected prosecutor handle its cases.[204] Additionally, as some have argued that judicial disqualification on the basis of campaign contributions chills the speech of critical donors like lawyers, others might suggest that the proposal to require prosecutorial recusal on the basis of police union contributions targets and attempts to silence the speech of police unions.[205]

There are two responses to this line of argument. First, requiring recusal for certain conflicts of interest is not incompatible with democratic interests. Prosecutors already must recuse themselves from cases for various reasons. For example, if the defendant is a former client, then the prosecutor must not handle that case.[206] Prosecutors also should not be involved in investigating or prosecuting their own family members.[207] It is hard to see how democratic interests would be served by a prosecutor prosecuting her former client or investigating her own spouse. Of course, the public has an interest in having the prosecutor it elects handle most of the cases in her jurisdiction, just as it is in the public’s interest that an elected judge presides over most of the cases assigned to her. But conflicts of interest present exceptions. Recognizing and mitigating conflicts of interest is not contrary to the public’s interest in democracy; if anything, it ensures that the job the public elected the recusing official to do gets done properly.

Second, this proposal is unlikely to significantly impact or disincentivize campaign contributions from police unions—actually, the risk to officers’ speech in the prosecutorial context is even smaller than it is for lawyers’ speech in the context of judicial disqualification. The reason is that a police union is likely to support a candidate for district attorney for many reasons, such as a belief that they will have a good working relationship or agreement with the candidate’s policies.[208] But a rule disqualifying the police union-funded prosecutor from investigating shootings and other uses of force by officers would not detract from such reasons. It would only disqualify the prosecutor in a very specific context, but otherwise, the union would get to enjoy the benefits of its political contributions by working with the elected prosecutor every day. By contrast, if a lawyer’s contributions disqualify a judge, there is no equivalent way the lawyer can enjoy the benefits of her political contributions because she will not be able to litigate any cases before that judge. Therefore, disqualifying prosecutors from investigating police shootings and other officer misconduct presents a very minimal risk to the speech of police unions.

Finally, similar to the concerns about judicial disqualification degrading the legitimacy and prestige of the judiciary, there is also the notion that requiring prosecutorial recusal would constitute an insult to the prosecutor’s professionalism and ability to remain impartial. However, the purpose of the rule would be to comply with the appearance of impropriety standard. Avoiding the appearance of impropriety would increase the legitimacy of the prosecutorial function, not decrease it. Prosecutorial recusal, in this instance, is not an admission of guilt and is not even an admission of bias. Rather, it is an act designed to improve the public’s confidence in the judicial system and the legitimacy of law enforcement accountability mechanisms.

Conclusion

This Note has addressed the conflict of interest created when prosecutors accept campaign contributions from police unions by analyzing existing ethical guidance for prosecutors. It has found that among the Model Rules, the ABA Standards, and the NDAA Standards, the NDAA Standards provide the strongest argument that accepting campaign contributions from police unions is outside the bounds of ethical prosecutorial conduct and, furthermore, that prosecutors who do accept money from police unions have a responsibility to recuse themselves from officer misconduct cases, especially police shootings. Nonetheless, none of these sources of ethical guidance offer any substantive recusal standards for conflicts arising from campaign contributions and they do not provide reliable procedural mechanisms that would prevent the appearance of impropriety arising from such conflicts. Thus, there is a strong need for states to establish ethical regulations that address these shortcomings directly.

Efforts to govern this unique type of prosecutorial conflict would find the existing judicial ethics rules with respect to campaign contributions to be well-instructive. While Caperton holds that a “serious risk of actual bias” must be present for judicial disqualification to be constitutionally mandated, states generally apply the appearance of impropriety standard to determine whether judicial disqualification is warranted. Fifteen states have established some method for determining whether a judge presiding over a case involving her campaign contributors creates an appearance of impropriety. States should consider the various judicial disqualification models to develop rules that specifically apply to the elected prosecutor’s context. While each state should consider its own local context, regulations that adopt some form of the monetary trigger model can be applied more objectively and consistently, and thus are likely to be effective in combating the appearance of impropriety than ones that only adopt a factor-based approach.

The significance of the appearance of impropriety becomes more acute when we reconsider the deaths of Elena Mondragon and Kenneth French and the pain that the appearance of a conflict of interest inflicted upon their families and communities.[209] Their cases demonstrate that campaign contribution conflicts of interest for elected prosecutors can no longer be ignored. In California, a contribution of just $1,500 from a party or lawyer in a proceeding is enough to disqualify a judge from presiding over a case. But a prosecutor is also a minister of justice with a duty to avoid the appearance of impropriety.[210] Therefore, the legislature should, at minimum, extend the judicial disqualification rule to the prosecutorial context and expand it to include contributions from police unions. The legislature should also consider going further by requiring prosecutorial recusal for police contributions made in any amount because this rule is unlikely to discourage the speech of police unions in the way that it would discourage the speech of lawyers in the judicial disqualification context.[211] These reforms would go a long way to prevent future conflicts of interest that would otherwise cause unnecessary suffering for victims, families, and communities.

Copyright © 2024 Maria I. A. Oliveira, J.D. Candidate, 2024, University of California, Berkeley, School of Law. I would like to extend my deepest gratitude to the editors at the California Law Review for their time, thoughtfulness, and indispensable feedback.

           [1].     Steven Tavares, DA O’Malley Took $10K From Fremont Police Union Before Clearing Fremont Cops in Killing of Pregnant Teen, East Bay Express (Mar. 16, 2018), https://eastbayexpress.com/da-omalley-took-10k-from-fremont-police-union-before-clearing-fremont-cops-in-killing-of-pregnant-teen-2-1 [https://perma.cc/2CYC-GSQP]; Sam Levin, Police Shot a Pregnant California Teen – But with No Video, the Case Dried Up, Guardian (Mar. 15, 2018), https://www.theguardian.com/us-news/2018/mar/15/elena-mondragon-police-shooting-california-no-video [https://perma.cc/76G9-67UQ].

           [2].     Tavares, supra note 1.

           [3].     Id.

           [4].     Joseph Geha, Conflict of Interest? DA Accepted $10,000 Donation From Fremont Cops While Investigating Them, Mercury News (Mar. 20, 2018), https://www.mercurynews.com/
2018/03/20/da-accepted-10000-donation-from-fremont-cops-while-investigating-them [https://perma.cc/NP5K-3KX7].

           [5].     Tavares, supra note 1.

           [6].     Angela Ruggiero, Alameda County DA Promises Not to Accept Police Union Money, Advocacy Group Says, Mercury News (July 10, 2020), https://www.mercurynews.com/
2020/07/09/da-promises-not-to-accept-police-union-money-advocacy-group-says [https://perma.cc/5ZWV-46ME].

           [7].     Richard Winton, Parents Wounded by LAPD Officer in Costco Shooting Are Outraged by Lack of Charges, LA Times (Sept. 26, 2019), https://www.latimes.com/california/story/2019-09-26/parents-wounded-in-corona-costco-shooting-furious-at-district-attorney [https://perma.cc/PRB5-BZ3S]; $17 Million Verdict in Corona Costco Shooting Death Against Ex-LAPD Officer and City of LA, Karlin & Karlin, https://www.karlaw.com/blog/17-million-verdict-in-corona-costco-shooting-death-against-ex-lapd-officer-and-city-of-la [https://perma.cc/A9MN-LSMQ].

           [8].     Winton, supra note 7.

           [9].     Id.

         [10].     Id.

         [11].     Id.

         [12].     Tom Coulter & Christopher Damien, Riverside County DA Race: Hestrin Outraises Opponents, Who Criticize His Acceptance of Police Union Money, Desert Sun (May 4, 2022), https://www.desertsun.com/story/news/politics/elections/2022/05/04/riverside-county-das-race-raises-debate-over-police-union-contributions/7335530001 [https://perma.cc/NHD3-DTSR].

         [13].     Law Enforcement Campaign Contributions, Univ. of N.C. Sch. of L. Prosecutors & Pol. Project (2020), https://law.unc.edu/wp-content/uploads/2020/09/PPP-factsheet-2020.pdf [https://perma.cc/DTT3-HBWK].

         [14].     Winton, supra note 7; S.E. Williams, Keeping it Real: Message to Riv DA Mike Hestrin, Police and Deputies Are Not Above the Law, Black Voice News (Nov. 1, 2021), https://blackvoicenews.com/2021/11/01/keeping-it-real-message-to-riv-da-mike-hestrin-police-and-deputies-are-not-above-the-law [https://perma.cc/BWB9-B9F5].

         [15].     Ex-cop Accused of Killing Mentally Challenged Man at Corona Store Pleads Not Guilty, Desert Sun (Jan. 13, 2022), https://www.desertsun.com/story/news/crime_courts/2022/01/13/ex-cop-accused-killing-mentally-challenged-man-corona-store-pleads-not-guilty/6515646001 [https://perma.cc/DK76-ND6T]; Former LAPD Officer to Stand Trial in Fatal Off-Duty Shooting at Corona Costco Store, ABC News (Aug. 16, 2022), https://abc7.com/costco-shooting-corona-lapd-officer-salvador-alejandro-sanchez/12131419 [https://perma.cc/WZ5V-VQYJ]. In January 2024, Sanchez’s trial for voluntary manslaughter and assault with a firearm resulted in a hung jury. Christopher Damien, Hung Jury in Trial of Ex-Los Angeles Police Officer Who Killed Man in Costco in Corona, Desert Sun (Jan. 18, 2024), https://www.desertsun.com/story/news/crime_courts/2024/01/18/hung-jury-in-trial-of-ex-lapd-officer-who-killed-man-in-costco/72258415007/ [https://perma.cc/Q9YV-WFC4].

         [16].     See, e.g., Kate Levine, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447, 1464–85 (2016); Kami Chavis Simmons, Increasing Police Accountability: Restoring Trust and Legitimacy Through the Appointment of Independent Prosecutors, 49 Wash. U. J. L. & Pol’y 137, 144–45 (2015); Peter A. Joy & Kevin C. McMunigal, Prosecutorial Conflicts of Interest and Excessive Use of Force by Police, 30 Crim. Just. 47, 48 (2015).

         [17].     In 2014, police killed Eric Garner in Staten Island by restraining him with a prohibited chokehold. Troy Closson, Officers to Testify About Eric Garner’s Death in Long-Delayed Inquiry, N.Y. Times (Nov. 2021), https://www.nytimes.com/2021/10/25/nyregion/eric-garner-death-inquiry.html [https://perma.cc/QL7G-EQCQ].

         [18].     Noah Remnick, Cuomo to Appoint Special Prosecutor for Killings by Police, N.Y. Times (July 7, 2015), https://www.nytimes.com/2015/07/08/nyregion/cuomo-to-appoint-special-prosecutor-for-killings-by-police.html [https://perma.cc/HL6P-6VET].

         [19].     Bruce A. Green & Rebecca Roiphe, Rethinking Prosecutors’ Conflicts of Interest, 58 B. C. L. Rev. 463, 508–09 (2017).

         [20].     “Even if it is appropriate to require recusal, we cannot possibly require recusal in all cases where institutional ties would warp a prosecutor’s judgment. . . . [A]ny prosecutor will have general attitudes of one kind or another relevant to the work of the police and their general credibility. Conceptualizing conflicts of interest to incorporate personal predispositions built up over a lifetime of experiences and education, possibly including professional interaction with police, is impractical.” Id.

         [21].     In the judicial context, studies show that campaign contributions can affect both judges’ impartiality and the public’s perception of the institution. For example, one study found that there is a positive relationship between campaign contributions from business interests and probusiness rulings from judges in jurisdictions with partisan judicial elections. Michael S. Kang & Joanna M. Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, 86 N.Y.U. L. Rev. 69, 73 (2011). The study also found that the contributions likely cause the probusiness rulings, rather than the other way around. Id. at 102–05. See also Michael Heise, Monsanto Lecture: The Complicated Business of State Supreme Court Elections: An Empirical Perspective, 52 Val. U. L. Rev. 19, 25 (2017) (finding that contributions from non- and antibusiness interests positively correlate with antibusiness judicial rulings). Another study found that conflicts of interest arising from campaign contributions decrease public confidence in the judiciary and that judicial disqualification can somewhat mitigate this effect. James L. Gibson & Gregory A. Caldeira, Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey, 10 J. Empirical Legal Stud. 76, 78 (2013); see also Joan Biskupic, Supreme Court Case with the Feel of a Best Seller, USA Today (Feb. 16, 2009), https://web.archive.org/web/20090220101947/https://www.usatoday.com/news/washington
/2009-02-16-grisham-court_N.htm [https://perma.cc/9YLP-Q888] (reporting a USA Today/Gallup Poll in which “89% of those surveyed believe[d] the influence of campaign contributions on judges’ rulings is a problem”); Justice at Stake & Brennan Center for Justice, National Poll, 10/22–10/24, Brennan Ctr. for Just. (2013), https://www.brennancenter.org/sites/default/files/toplines337_B2D51323DC5
D0.pdf [https://perma.cc/8CDV-NM2P] (finding that 59 percent of survey participants believed that campaign contributions have a “great deal” of influence on judicial decisions and 28 percent of participants believed that campaign contributions have “some” influence on judicial decisions a judge). For surveys of the empirical literature, see Thomas E. McClure, Perceptions of Bias: Do Campaign Contributions Create Public Perceptions of Judicial Bias?, 102 Judicature 28, 30–31 (2018); Hugh D. Spitzer & Philip A. Talmadge, Amending Codes of Judicial Conduct to Impose Campaign Contribution and Expenditure Limits on Judicial Campaigns, 25 Va. J. Soc. Pol’y & L. 87, 97–100 (2018). It is reasonable to think that campaign contributions would have similar impacts in the prosecutorial context.

[22].      To maintain the clarity and flow of the text, I have opted to use "she/her" pronouns consistently throughout this Note.

         [23].     While none of these authorities are legally binding, they are authoritative sources that provide useful guidance to lawmakers and to prosecutors designing their office’s policies.

         [24].     See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009).

         [25].     See infra Part II.C.

         [26].     Id.

         [27].     See infra Part II.C.1.

         [28].     These factors typically include the size of the contributions, their relative significance based on the judge’s total funds raised, and the temporal relationship between the contributions and the current proceeding. See infra Part II.C.2.

         [29].     See Model Rules of Pro. Conduct r. 3.8 (Am. Bar Ass’n 2020).

         [30].     Model Rules of Pro. Conduct r. 1.7 (Am. Bar Ass’n 2020).

         [31].     See Model Rules of Pro. Conduct r. 1.11 (Am. Bar Ass’n 2020).

         [32].     See Nat’l Prosecution Standards § 1-1.2 (Nat’l Dist. Att’ys Ass’n 2023) (“A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client.”); Crim. J. Standards for the Prosecution Function § 3-1.3 (Am. Bar Ass’n 2017) (“The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim. When investigating or prosecuting a criminal matter, the prosecutor does not represent law enforcement personnel who have worked on the matter and such law enforcement personnel are not the prosecutor’s clients.”); Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. Rev. 721, 726 (2001) (“Prosecutors represent only ‘the state’ or ‘the people.’ Prosecutors have significant, often controlling, discretion to determine which constituency of the state should be considered dominant in any particular case. As a result, rules governing conflicts among clients and rules designed to protect the autonomy and decision-making authority of clients rarely apply to them.”).

         [33].     Crim. J. Standards for the Prosecution Function §§ 3-1.2(a)-(b) (Am. Bar Ass’n 2017); Nat’l Prosecution Standards § 1-1.2 (Nat’l Dist. Att’ys Ass’n 2023).

         [34].     For discussions on the accountability of prosecutors to their electorates, see Ronald F. Wright, Beyond Prosecutor Elections, 67 S.M.U. L. Rev. 593 (2014); Russell M. Gold, Promoting Democracy in Prosecution, 86 Wash. L. Rev. 69 (2011); Ronald F. Wright, How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581 (2009).

         [35].     See Model Rules of Prof. Conduct r. 1.7(a)(2) (Am. Bar Ass’n 2020).

         [36].     See Green & Roiphe, supra note 19, at 487–88 (“There is no foolproof barometer for measuring risk. Deciding whether a prosecutor or other lawyer has a conflict of interest that creates a significant risk requires a judgment informed by common sense, experience, and conventional professional understandings.”).

         [37].     Model Rules of Prof. Conduct r. 1.7(b) (Am. Bar Ass’n 2020).

         [38].     For a critical analysis on the relationship between the “People” and the prosecutor and the People’s ability to hold prosecutors accountable for their representation, see Laurie L. Levenson, Do Prosecutors Really Represent the People? A New Proposal for Civilian Oversight of Prosecutors, 58 Duq. L. Rev. 279 (2020).

         [39].     See Model Rules of Prof. Conduct r. 1.0 (Am. Bar Ass’n 2020); Green & Roiphe, supra note 19, at 488 n.113 (“Considerations [of the absence of a check on prosecutorial power] were once the predicate of a view that the government cannot consent to conflicts of interest to which individuals ordinarily could consent.”); N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 654 n.4  (1994) (“This committee recently held that a governmental entity may consent to be represented . . . where a private party would be permitted to consent to the representation. . . . [C]lient consent . . . is not available [to district attorneys] because there is no mechanism by which the People, whom the district attorney represents in prosecuting criminal cases, may meaningfully consent.”).

         [40].     Model Rules of Prof. Conduct r. 1.0(e) (Am. Bar Ass’n 2020).

         [41].     Crim. J. Standards for the Prosecution Function § 3-1.7(f) (Am. Bar Ass’n 2017).

         [42].     Crim. J. Standards for the Prosecution Function § 3-1.2(c) (Am. Bar Ass’n 2017).

         [43].     See Tavares, supra note 1.

         [44].     Crim. J. Standards for the Prosecution Function § 3-1.7(g) (Am. Bar Ass’n 2017).

         [45].     Id.

         [46].     See Wright, supra note 34, at 589 n.41.

         [47].     See Crim. J. Standards for the Prosecution Function § 3-1.7(g) (Am. Bar Ass’n 2017).

         [48].     Id.

         [49].     Crim. J. Standards for the Prosecution Function § 3-1.7(h) (Am. Bar Ass’n 2017).

         [50].     See id.; Crim. J. Standards for the Prosecution Function § 3-1.7(g) (Am. Bar Ass’n 2017).

         [51].     See Nat’l Prosecution Standards § 1-3.4 (Nat’l Dist. Att’ys Ass’n 2023).

         [52].     Nat’l Prosecution Standards § 1-3.1 (Nat’l Dist. Att’ys Ass’n 2009) (emphasis added).

         [53].     See Crim. J. Standards for the Prosecution Function § 3-1.7(f) (Am. Bar Ass’n 2017).

         [54].     See Crim. J. Standards for the Prosecution Function § 3-1.2(c), 3-1.7(f) (Am. Bar Ass’n 2017); Nat’l Prosecution Standards § 1-3.1 (Nat’l Dist. Att’ys Ass’n 2009).

         [55].     See Nat’l Prosecution Standards § 1-3.1 (Nat’l Dist. Att’ys Ass’n 2009).

         [56].     See discussion supra in Introduction.

         [57].     Nat’l Prosecution Standards § 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [58].     Nat’l Prosecution Standards § 1-3.3(e) (Nat’l Dist. Att’ys Ass’n 2009).

         [59].     See Nat’l Prosecution Standards § 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [60].     See George Coppolo, Off. of Leg. Rsch., Conn. Gen. Assembly, OLR Research Report: States that Elect Their Chief Prosecutors (2003), https://www.cga.ct.gov/2003/rpt/
2003-R-0231.htm [https://perma.cc/3KYJ-PAEL].

         [61].     See Wright, supra note 34, at 589 n.41.

         [62].     Nat’l Prosecution Standards § 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [63].     Nat’l Prosecution Standards § 1-3.4 (Nat’l Dist. Att’ys Ass’n 2023).

         [64].     See, e.g., Levine, supra note 16, at 1464–85; Chavis Simmons, supra note 16, at 144–45; Remnick, supra note 18.

         [65].     Nat’l Prosecution Standards § 1-3.4(a) (Nat’l Dist. Att’ys Ass’n 2023).

         [66].     Nat’l Prosecution Standards § 1-3.4(b) (Nat’l Dist. Att’ys Ass’n 2023).

         [67].     Nat’l Prosecution Standards §§ 1-3.4(c)-(d) (Nat’l Dist. Att’ys Ass’n 2023).

         [68].     Nat’l Prosecution Standards § 1-3.1 (Nat’l Dist. Att’ys Ass’n 2009).

         [69].     Nat’l Prosecution Standards § 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [70].     Nat’l Prosecution Standards § 1-3.4(a) (Nat’l Dist. Att’ys Ass’n 2023).

         [71].     Nat’l Prosecution Standards § 1-3.4(b) (Nat’l Dist. Att’ys Ass’n 2023).

         [72].     See Nat’l Prosecution Standards § 1-3.1 (Nat’l Dist. Att’ys Ass’n 2009).

         [73].     See Nat’l Prosecution Standards § 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [74].     See Nat’l Prosecution Standards § 1-3.4(a) (Nat’l Dist. Att’ys Ass’n 2023).

         [75].     See Nat’l Prosecution Standards § 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [76].     See Nat’l Prosecution Standards § 1-3.4(b) (Nat’l Dist. Att’ys Ass’n 2023).

         [77].     See Nat’l Prosecution Standards §§ 1-3.1, 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009).

         [78].     The terms “disqualification” and “recusal” traditionally have different meanings. “Disqualification” describes a mandatory action while “recusal” refers to a discretionary action. Debra Lyn Bassett, Recusal and the Supreme Court, 56 Hastings L.J. 657, 658 n.5 (2005). However, the terms have become increasingly interchangeable, and even synonymous, in legal discourse as it is used to refer to any time a judge steps down due to a conflict of interest. Id.; Model Code of Jud. Conduct, r. 2.11 cmt. (Am. Bar. Ass’n 2020). This Note will also use the terms synonymously to refer to any time a judge or a prosecutor steps away from a case due to a conflict of interest. But for clarity, this Note elects to use “disqualification” in the judicial context and “recusal” in the prosecutorial context.

         [79].     For the argument as to this point, see infra Part III.A.

         [80].     Model Code of Jud. Conduct r. 2.11(A) (Am. Bar Ass’n 2020).

         [81].     Model Code of Jud. Conduct r. 2.11(A)(4) (Am. Bar Ass’n 2020).

         [82].     Model Code of Jud. Conduct Canon 5(C)(2) cmt. (Am. Bar Ass’n 1990).

         [83].     Compare Model Code of Jud. Conduct Canon 5(C)(2) cmt. (Am. Bar Ass’n 1990), with Model Code of Jud. Conduct Canon 5(C)(2) cmt. (Am. Bar Ass’n 1999).

         [84].     See Stuart Banner, Disqualifying Elected Judges from Cases Involving Campaign Contributors, 40 Stan. L. Rev. 449, 467–68 (1988) (noting that all states and the District of Columbia have adopted at least some part of the MCJC except for Illinois, Montana, and Mississippi). Since then, Illinois, Montana, and Mississippi each have used the MCJC has the basis for their revised codes of judicial conduct. Id.

         [85].     See, e.g., Tenn. Code of Jud. Conduct r. 2.11(A) (2021); Mo. Code of Jud. Conduct r. 2.11(A) (2012); Conn. Code of Jud. Conduct r. 2.11(A) (2011); Fla. Code of Jud. Conduct Canon 3(E)(1) (2023).

         [86].     See infra Part II.C.

         [87].     Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 890 (2009).

         [88].     Id. at 880.

         [89].     See id. at 876–81.

         [90].     Tumey v. State of Ohio, 273 U.S. 510, 523 (1927).

         [91].     Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986).

         [92].     Id.; Tumey, 273 U.S. at 523; Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009).

         [93].     Caperton, 556 U.S. at 877.

         [94].     Id. at 877, 880.

         [95].     Id. at 879-80.

         [96].     Id. at 881.

         [97].     Id.

         [98].     Id. at 882.

         [99].     Id. at 884.

      [100].     Id.

      [101].     Id. at 887.

      [102].     Technically, Blankenship’s direct contributions to Benjamin’s campaign were $1,000—the legal limit. Id. at 873. In addition to the $1,000 in direct contributions, Blankenship also donated $2.5 million to a political action committee and spent $500,000 on independent expenditures to support Benjamin. Id. Throughout its analysis, the Court considers all of these categories of political spending together, simply calling them “contributions.” Id. For the sake of simplicity, this Note does the same in its discussion of Caperton.

      [103].     Id. at 884.

      [104].     Id.

      [105].     Id. at 873.

      [106].     Id. at 885.

      [107].     Id. at 886.

      [108].     Id.

      [109].     Id. at 887.

      [110].     Id. at 887–90.

      [111].     Id. at 888 (“One must also take into account the judicial reforms the States have implemented to eliminate even the appearance of partiality. Almost every State—West Virginia included—has adopted the American Bar Association’s objective standard: ‘A judge shall avoid impropriety and the appearance of impropriety.’ . . . The ABA Model Code’s test for appearance of impropriety is ‘whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.’”).

      [112].     Id. at 889 (“Indeed, some States require recusal based on campaign contributions similar to those in this case. See, e.g., Ala. Code §§ 12–24–1, 12–24–2 (2006); Miss. Code of Jud. Conduct, Canon 3E(2) (2008).”).

      [113].     Id. at 887–90.

      [114].     Id. at 891, 900 (Roberts, C.J., dissenting); Id. at 903 (Scalia, J., dissenting).

      [115].     Id. at 887–90 (explaining that the circumstances in this case are “extraordinary” and that most authority to regulate judicial disqualification lies with the states).

      [116].     Id. at 889.

      [117].     See, e.g., N.D. Code of Jud. Conduct r. 4.6 cmt. (2012); S.C. Code of Jud. Conduct Canon 5(C)(2) cmt. (2019); Alaska Code of Jud. Conduct Canon 5(C)(2) cmt. (2023).

      [118].     Cal. Civ. Proc. Code § 170.1(a)(9) (West 2011); Ariz. Code of Jud. Conduct r. 2.11(A)(4) (2019); N.Y. R. of the Chief Adm’r of the Cts., § 151.1(B) (2011); Utah Code of Jud. Administration r. 2.11(A)(4) (2023); Vt. Code of Jud. Conduct r. 2.11(A)(4) (2019).

      [119].     Ala. Code § 12-24-3(b) (2014).

      [120].     Miss. Code of Jud. Conduct Canon 3(E)(2) (2022).

      [121].     Cal. Civ. Proc. Code § 170.1(a)(9) (West 2011).

      [122].     Ariz. Code of Jud. Conduct r. 2.11(A)(4) (2019).

      [123].     Utah Code of Jud. Admin. r. 2.11(A)(4) (2023).

      [124].     Vt. Code of Jud. Conduct r. 2.11(A)(4) (2019).

      [125].     Ala. Code § 12-24-3(b) (2014).

      [126].     Id.

      [127].     Miss. Code of Jud. Conduct Canon 3(E)(2) (2022).

      [128].     Miss. Code of Jud. Conduct Terminology (2022).

      [129].     N.Y. R. of the Chief Adm’r of the Cts., § 151.1(B) (2011).

      [130].     Ariz. Code of Jud. Conduct r. 2.11(A)(4) (2019); Utah Code of Jud. Administration r. 2.11(A)(4) (2023).

      [131].     Cal. Civ. Proc. Code § 170.1(a)(9) (West 2011); Cal. Sup. Ct. Comm. on Jud. Ethics Ops., Formal Op. No. 2013-003, at 11 (2013).

      [132].     Vt. Code of Jud. Conduct r. 2.11(A)(4) (2019).

      [133].     See id.

      [134].     Miss. Code of Jud. Conduct Canon 3(E)(2) (2022).

      [135].     Ala. Code § 12-24-3(c) (2014).

      [136].     N.Y. R. of the Chief Adm’r of the Cts., § 151.1(B) (2011); Utah Code of Jud. Administration r. 2.11(A)(4) (2023); Ariz. Code of Jud. Conduct r. 2.11(A)(4) (2019); Vt. Code of Jud. Conduct r. 2.11(A)(4) (2019).

      [137].     Cal. Civ. Proc. Code § 170.1(a)(9) (West 2011).

      [138].     Ala. Code § 12-24-3(b) (2014).

      [139].     Miss. Code of Jud. Conduct Terminology (2022).

      [140].     The eight states are Arkansas, Georgia, New Mexico, North Dakota, Oklahoma, Pennsylvania, Tennessee, and Washington. Ark. Code of Jud. Conduct r. 2.11 cmt. (2016); Ga. Code of Jud. Conduct r. 2.11(A)(4) (2020); N.M. Code of Jud. Conduct r. 21.211 cmt. (2018); N.D. Code of Jud. Conduct r. 2.11 cmt. (2012); Ok. Code of Jud. Conduct r. 2.11(A)(4) (2011); Pa. Code of Jud. Conduct r. 2.11(A)(4) (2014); Tn. Code of Jud. Conduct r. 2.11(A)(4) (2023); Wa. Code of Jud. Conduct r. 2.11(D) (2011).

      [141].     See, e.g., Ga. Code of Jud. Conduct r. 2.11(A)(4) (2020) (“When determining impartiality with respect to campaign contributions or support, the following may be considered: (a) amount of the contribution or support; (b) timing of the contribution or support; (c) relationship of contributor or supporter to the parties; (d) impact of contribution or support; (e) nature of contributor’s prior political activities or support and prior relationship with the judge; (f) nature of impending matter or pending proceeding and its importance to the parties or counsel; (g) contributions made independently in support of the judge over and above the maximum allowable contribution that may be contributed to the judicial candidate; and (h) any factor relevant to the issue of campaign contribution or support that causes the judge’s impartiality to be questioned.”); N.M. Code of Jud. Conduct r. 21-211 cmt. (2018) (“An appearance of impropriety may result when attorneys or parties appearing before a judge generate large amounts of money for a campaign, either by contributing directly to the campaign, by contributing to political action committees supporting the judge, or by organizing large fund raisers.”); N.D. Code of Jud. Conduct r. 2.11 cmt. (2012) (“The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or publicly supported the judge in the judge’s election does not of itself disqualify the judge. However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign and proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge’s impartiality . . . .”).

      [142].     Penn. Judicial Conduct Bd., Statement of Policy Regarding Disqualification Based on Campaign Contributions Under Rule 2.11(A)(4), at 1 (2016).

      [143].     Id. at 9.

      [144].     Id.; see also Ok. Code of Jud. Conduct r. 2.11(A)(4) (2011) (“The judge should consider what the public perception would be as to such contributions affecting the judge’s ability to be fair to the parties.”).

      [145].     See infra Part II.D.

      [146].     Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 903 (2009) (Scalia, J., dissenting).

      [147].     Id. at 891, 899, 900 (Roberts, C.J., dissenting).

      [148].     Id. at 899–900.

      [149].     Id.

      [150].     Id.

      [151].     City of Las Vegas Downtown Redevelopment Agency v. Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 5 P.3d 1059, 1062 (2000).

      [152].     MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1338 (Fla. 1990).

      [153].     See Roy A. Schotland, Elective Judges’ Campaign Financing: Are State Judges’ Robes the Emperor’s Clothes of American Democracy, 2 J.L. & Pol. 57, 86 (1985) (“The degree of the public’s unawareness of and apathy toward judicial elections may surprise many lawyers and others highly conscious of the courts.”). Lawyers contribute a substantial portion of judicial campaign contributions across the country, though the percentage can vary widely across different states and localities. See, e.g., Alicia Bannon, Cathleen Lisk, & Peter Hardin, The Politics of Judicial Elections 2015–16: Who Pays for Judicial Races? 11 (2017) (finding that 31.7 percent of state supreme court contributions in 2015–16 came from lawyers and lobbyists); Deborah Goldberg & Samantha Sanchez, The New Politics of Judicial Elections 2002: How the Threat to Fair and Impartial Courts Spread to More States in 2002 18 (2002) (finding that on average lawyers accounted for 37 percent of all state supreme court contributions, with the highest being 66 percent in Texas and the lowest being less than 10 percent in Minnesota and Wisconsin); Philip L. Dubois, Financing Trial Court Elections: Who Contributes to California Judicial Campaigns, 70 Judicature 8, 12 (1986) (finding that, in California, lawyers and law firms contributed 39.2 percent of funds in judicial primary elections and 32.4 percent of funds in judicial runoff elections); Schotland, supra note 153, at 94 (“In Pennsylvania’s 1983 supreme court election, for example, the winning candidate received about 53 percent of his $193,575 campaign funds from lawyers; but over $75,000 of that was raised after he had won both parties’ nominations in the primaries, and of that sum, 75 percent came from lawyers.”); Marlene Arnold Nicholson & Bradley Scott Weiss, Funding Judicial Campaigns in the Circuit Court of Cook County, 70 Judicature 17, 21 (1986) (finding that, in 1984, about half of contributions in the Cook County, Illinois, Circuit Court elections came from lawyers and law firms).

      [154].     Rocha v. Ahmad, 662 S.W.2d 77, 78 (Tex. App. 1983).

      [155].     Adair v. State, Dep’t of Educ., 709 N.W.2d 567, 580 (2006).

      [156].     Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge’s Impartiality Might Reasonably Be Questioned, 14 Geo. J. Legal Ethics 55, 101–02 (2000).

      [157].     See Vt. Code of Jud. Conduct r. 2.11(A)(4) (2019).

      [158].     See supra Part II.C.

      [159].     See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 891, 899, 900, 903 (2009); Aman McLeod, Caperton v. A.T. Massey Coal Co.: A Ten-Year Retrospective on Its Impact on Law and the Judiciary, 124 W. Va. L. Rev. 67, 82 (2021) (finding that over the course of ten years, only sixteen Caperton motions were filed in thirteen states, and only one of them was granted).

      [160].     For empirical evidence on how campaign contributions can affect judicial impartiality and public perception of the judiciary, see supra note 21.

      [161].     James Bopp Jr. & Anita Y. Woundenberg, Extreme Facts, Extraordinary Case: The Sui Generis Recusal Test of Caperton v. Massey, 60 Syracuse L. Rev. 305, 333 (2010); Richard M. Esenberg, If you Speak Up, Must you Stand Down: Caperton and Its Limits, 45 Wake Forest L. Rev. 1287, 1325 (2010).

      [162].     Wis. Code of Jud. Conduct r. 60.04(7) cmt. (1979).

      [163].     Adair v. State, Dep’t of Educ., 709 N.W.2d 567, 580 (2006).

      [164].     The Supreme Court has held that campaign contributions and expenditures constitute political expression and are entitled to First Amendment protections. Buckley v. Valeo, 424 U.S. 1, 14–16 (1976).

      [165].     Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 891 (2009) (Roberts, C.J., dissenting).

      [166].     Id.

      [167].     Id.

      [168].     Wis. Code of Jud. Conduct r. 60.04(7) cmt. (1979).

      [169].     MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1338 (Fla. 1990).

      [170].     Tumey v. State of Ohio, 273 U.S. 510, 523 (1927).

      [171].     Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 891 (2009)

      [172].     See Model Code of Jud. Conduct r. 2.11(A)(2) (Am. Bar Ass’n 2020).

      [173].     John C. Nagle, The Recusal Alternative to Campaign Finance Legislation, 37 Harv. J. on Legis. 69, 89-90 (2000).

      [174].     See generally, Roberta K. Flowers, What You See Is What You Get: Applying the Appearance of Impropriety Standard to Prosecutors, 63 Mo. L. Rev. 699 (1998) (arguing that the appearance of impropriety standard applied to judges should also be applied to prosecutors).

      [175].     Crim. J. Standards for the Prosecution Function s. 3-1.2(a) (Am. Bar Ass’n 2017). See also, Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer.”).

      [176].     Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 Am. J. Crim. L. 197, 215­–16 (1988).

      [177].     See Gerard E. Lynch, Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, 55 Stan. L. Rev. 1399, 1403–04 (2003) (arguing that the plea bargaining system has made prosecutors the central adjudicators of fact because “[p]otential defenses are presented by the defendant and his counsel not in a court, but to a prosecutor, who assesses their factual accuracy and likely persuasiveness to a hypothetical judge or jury, and then decides the charge of which the defendant should be adjudged guilty. Mitigating information, similarly, is argued not to the judge, but to the prosecutor, who decides what sentence the defendant should be given in exchange for his plea.”); Bennett L. Gershman, The Prosecutor’s Duty to Truth, 14 Geo. J. Legal Ethics 309, 337 (2001) (“[A] prosecutor’s duty to truth embraces a duty to make an independent evaluation of the credibility of his witnesses, the reliability of forensic evidence, and the truth of the defendant’s guilt.”); Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 1454 (2008) (“Since prosecutorial discretion and plea bargains control most outcomes, the system as it actually operates relies on both the priorities and the judgments of prosecutors. The default is the plea bargain (or sentence bargain), with the adversarial jury trial serving as a kind of judicial review for defendants who are not content with administrative adjudication by the prosecutor.”).

      [178].     See, e.g., Crim. J. Standards for the Prosecution Function s. 3-4.3(a) (Am. Bar Ass’n 2017) (“A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.”).

      [179].     For discussions on the history and origins of the prosecutor’s role as a minister of justice see, e.g., Bruce A. Green, Why Should Prosecutors “Seek Justice”? 26 Fordham Urb. L.J. 607 (1999); Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 39 Am. Crim. L. Rev. 1309 (2002). Critics of the conception of prosecutors as ministers of justice question how compatible it is with the prosecutor’s role as a zealous advocate and the demands of an adversarial system. But even commentators who have argued for zealous advocacy as the prosecutor’s predominant duty recognize the centrality of the quasi-judicial role in investigation period when the prosecutor is making charging decisions. See, e.g., Whitney North Seymour Jr., Why Prosecutors Act Like Prosecutors, 11 Rec. Ass’n B. City N.Y. 302, 312 (1956) (arguing that characterizing a prosecutor as a quasi-judicial officer is “essentially true . . . when a case is first brought in to the office and is being readied for Grand Jury presentation,” because that is “where we exercise our judicial role in making our decision as to whether to prosecute or decline,” but that once a case is at trial, “most of the prosecutor’s quasi-judicial functions have long since passed, and he is an eager lawyer trying to protect his client’s [the government’s] interests.”); Robert H. Aronson, Professional Responsibility: Education and Enforcement, 51 Wash. L. Rev. 273, 311 (1976) (“[A]bsolute adversariness is not always the goal and is in many instances constitutionally impermissible. The prosecutor’s primary duty ‘is not to convict, but to see that justice is done.’ Therefore he may not act as an equal adversary, employing all valid means to win a case. . . . If the system is to be truly adversary, however, and justice can best be obtained by means of partisan advocates, the prosecutor’s dual allegiance must be kept to a minimum. One way of ensuring fairness in an adversary system would be to impose upon the prosecutor a greater duty towards the defendant prior to trial, but permit the same aggressive partisanship at the trial itself.”) (emphasis in original); H. Richard Uviller, Ethics in Criminal Advocacy, Symposium, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Pursuit, 68 Fordham L. Rev. 1695, 1714–16 (2000) (arguing that the advent of plea bargaining has forced prosecutors into a dual role of both adversary and adjudicator, but that this distinction is untenable, and therefore the quasi-judicial and adversarial functions of prosecutors should be handled by separate teams within a prosecutor’s office).

      [180].     See Bruce Frederick & Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making – Summary Report 3–4 (2012).

      [181].     See e.g., 18 U.S.C. § 3553(a) (“The court, in determining the particular sentence to be imposed, shall consider—(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range . . . (5) any pertinent policy statement . . . (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.”).

      [182].     See Lynch, supra note 177, at 1403–04; Stith, supra note 177, at 1454; Shima Baradaran Baughman, Subconstitutional Checks, 92 Notre Dame L. Rev. 1071, 1090 (2017) (“[P]rosecutors have the latitude to charge a wide range of crimes and to seek a wide range of penalties as long as the prosecutor believes the charges and sought-after penalties are ‘consistent with the nature of the defendant’s conduct’ or the likelihood of success at trial is high . . . .”); Gold, supra note 34, at 84 (“Prosecutors exercise sovereign authority when they determine who may be punished for legal transgressions and who will not.”). The power of prosecutorial discretion is amplified by a lack of meaningful judicial review. See Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. Rev. 105, 164 (1994) (noting that “courts are reluctant to intervene when their own notions of what constitutes a proper charging decision conflict with the prosecutor’s charging decision because they believe the nature of the decision is one that the prosecutor is equipped to make competently and independently”); Samuel Becker, Judicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint, 71 Marq. L. Rev. 749, 749 (1988) (“While prosecutorial discretion to institute criminal proceedings is subject to judicial review under certain circumstances, it has been recognized that there is no effective procedure for reviewing the decision not to prosecute.”).

      [183].     Porter v. People, 182 Ill. 516, 521 (1899) (“Where, under the laws of a state, the attorney general is empowered to determine in what cases proceedings by information in the nature of a quo warranto shall be instituted to try the title to any public office or franchise, he is regarded as vested with a discretion the exercise of which is, in its nature, a judicial act, over which the courts have no control.”); Yau v. Carden, 23 Haw. 362, 368 (1916) (“A public prosecuting officer, in determining whether certain purported facts which have been brought to his attention justify the accusation and prosecution of a person believed to have committed an offense, acts in a quasi-judicial capacity, and he is not to be held liable in damages for an honest mistake or error of judgment in instituting a criminal proceeding against such person.”); Smith v. Parman, 101 Kan. 115, 116, 165 P. 663, 663 (1917) (“The reference to the prosecutor as a judicial officer might seem open to question. Much of his work is advocacy. But the important matter of determining what prosecutions shall be instituted is committed in a considerable degree to his sound judgment, and in the exercise of that function he acts at least in a quasi judicial capacity.”); Watts v. Gerking, 111 Or. 641, 657, 228 P. 135, 137 (1924) (“The district attorney, in determining whether to institute a prosecution, is a quasi judicial officer, who possesses a certain discretion as to when, how, and against whom to proceed.”).

      [184].     Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (internal citation and quotations omitted).

      [185].     Id. at 423 n.20 (emphasis added). But see Marshall v. Jerrico, Inc., 446 U.S. 238, 247 (1980) (declining to extend due process requirements for judicial conflict of interest to actors in a “prosecutorial or plaintiff-like capacity” because such actors “perform[] no judicial or quasi-judicial functions”). Why the Court in Marshall went so far as to declare that prosecutors perform “no judicial or quasi-judicial functions,” given that it had previously stated the opposite in Imbler, is unclear. See Dirk G. Christensen, Incentives vs. Nonpartisanship: The Prosecutorial Dilemma in an Adversary System, 1981 Duke L.J. 311, 318 (1981). The Court could have justified its conclusion simply by relying on the fact that prosecutors play an adversarial role in addition to their quasi-judicial role. Furthermore, the Court still acknowledged in Marshall that “[a] scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” 446 U.S. at 249–50. It found that a legislative scheme to encourage the prosecution of certain violations as a matter of public policy was so obviously not personal or compromising enough to require prosecutorial recusal, that it declined to define a standard. Id. at 250. Thus, with respect to elected prosecutors accepting campaign contributions, there is an open question as to what circumstances, if any, would result in a conflict of interest substantial enough to create a due process violation. Regardless, the Supreme Court, lower courts, and state courts have continued to affirm functional comparability between prosecutorial and judicial discretion in cases long after Marshall. See, e.g., Rehberg v. Paulk, 556 U.S. 356, 372 n.3 (2012); Singleton v. Cannizzaro, 956 F.3d 773, 780–81 (5th Cir. 2020); Rosenthal v. Cnty. of Madison, 339 Mont. 419, 426 (2007); Barese v. Clark, 62 Conn. App. 58, 63 (2001). Historically, courts that have recognized this functional comparability between prosecutorial and judicial decision-making have also emphasized that prosecutors have a comparable duty of impartiality. See, e.g., People ex rel. Peabody v. Att’y Gen., 1856 WL 6441 (N.Y. Sup. Ct. 1856) (“The power of determining whether the action shall be commenced must exist somewhere. As we have seen, it has sometimes been vested in the court, and sometimes in the public prosecutor. Our legislature have [sic] seen fit to invest the attorney-general with this discretion. His office is a public trust. It is a legal presumption that he will do his duty; that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is, in its nature, a judicial act, from which there is no appeal, and over which courts have no control.”); Engle v. Chipman, 51 Mich. 524, 525–26, 16 N.W. 886, 887 (1883) (“The prosecuting attorney is a very responsible officer, selected by the people, and vested with personal discretion intrusted [sic] to him as a minister of justice, and not as a mere legal attorney. He is disqualified from becoming in any way entangled with private interests or grievances in any way connected with charges of crime. He is expected to be impartial in abstaining from prosecuting as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.”); Appeal of Nicely, 130 Pa. 261, 270, 18 A. 737, 738 (1889) (“The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only,—equal and impartial justice,—and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial officer, but becomes a heated partisan.”).

      [186].     Crim. J. Standards for the Prosecution Function s. 3-1.2(a) (Am. Bar. Ass’n 2017).

      [187].     See Nat’l Prosecution Standards § 1 cmt. (Nat’l Dist. Att’ys Ass’n 2023) (“A prosecutor is responsible for the presentation of the truth. Justice is not complete without the truth always being the primary goal in all criminal proceedings. A prosecutor is not a mere advocate and unlike other lawyers, a prosecutor does not represent individuals or entities, but society as a whole. In that capacity, a prosecutor must exercise independent judgment in reaching decisions while taking into account the interest of victims, witnesses, law enforcement officers, suspects, defendants and those members of society who have no direct interest in a particular case, but who are nonetheless affected by its outcome.”).

      [188].     See Samuel Walker, The Neglect of Police Unions: Exploring One of the Most Important Areas of American Policing, 9 Police Prac. & Rsch. 95, 102 (2008).

      [189].     Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009).

      [190].     Id.

      [191].     Id.

      [192].     Id.

      [193].     Id.

      [194].     See id.

      [195].     Univ. of N.C. Sch. of L. Prosecutors & Pol. Project, supra note 13.

      [196].     See Tavares, supra note 1; Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886 (2009).

      [197].     See Ruggiero, supra note 6; Caperton, 556 U.S. at 884.

      [198].     See supra Part II.C.2.

      [199].     See, e.g., Gary Langer, Confidence in police practices drops to a new low: POLL, ABC News (Feb. 3, 2023), https://abcnews.go.com/Politics/confidence-police-practices-drops-new-low-poll/story?id=96858308 [https://perma.cc/L4HA-67E4] (noting that survey results indicate that only 39 percent of Americans believe that police are properly trained to avoid excessive use of force, as opposed to 2014, when 54 percent of Americans believed that police were properly trained to avoid excessive use of force).

      [200].     See supra Part II.C.1 (discussing various factors that states consider in addition to monetary triggers, such as the type of judicial race, whether contributions were made individually or collectively, the aggregate amount contributed from one side of an action, who counts as a party for the purposes of disqualification, and timing limitations).

      [201].     See McLeod, supra note 159, at 82 (2021) (finding that over the course of ten years, only sixteen Caperton motions were filed in thirteen states, and only one of them was granted).

      [202].     Bopp & Woundenberg, supra note 161, at 333; Esenberg, supra note 161, at 1325.

      [203].     See Buckley v. Valeo, 424 U.S. 1, 14–16 (1976).

      [204].     Green & Roiphe, supra note 19, at 508.

      [205].     See supra Part II.D.2.

      [206].     See Crim. J. Standards for the Prosecution Function s. 3-1.7(d) (Am. Bar Ass’n 2017).

      [207].     See Crim. J. Standards for the Prosecution Function s. 3-1.7(h) (Am. Bar Ass’n 2017).

      [208].     See Carissa Byrne Hessick & Nathan Pinell, Special Interests in Prosecutor Elections, 19 Ohio St. J. Crim. L. 39, 56–57 (describing reasons law enforcement may contribute to a prosecutor’s campaign). See also Green & Roiphe, supra note 19, at 508–09 (“Prosecutors and the police serve the same law-enforcement interests. Arguably, prosecutors will be aware of the dangers police face and the difficulties they encounter on the job. . . . [P]rosecutors’ institutional interest in maintaining good working relationships with the relevant police department is not necessarily illegitimate.”).

      [209].     See Levin, supra note 1; Winton, supra note 7.

      [210].     See Cal. Rules of Prof. Conduct r. 3.8, cmt (2020) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”).

      [211].     See supra Part III.D (explaining how a police union will reap the benefit of its contribution even if the prosecutor recuses herself from investigating officer misconduct, while a lawyer will reap almost no benefit from her contribution if it disqualifies the judge from all of the lawyer’s cases).