Prosecutors are the most powerful actors in the criminal justice system. Prosecutors’ decisions — which crimes to prioritize, what charges to bring, whether to offer plea bargains — are essentially unreviewable. We trust them to exercise this power, in part, because they are subject to elections. If a prosecutor is too harsh or too lenient, voters can elect a new prosecutor.
Like all public officials who have to run for election, prosecutors have to fund their campaigns through contributions. It is up to voters to ensure that officials’ campaign contributions do not cause them to make decisions that are against the public interest. Recent scandals from other states teach us that prosecutors sometimes accept contributions that cast doubt on their ability to act impartially.
Unfortunately for Kansas voters, finding out who donated to their local prosecutors’ campaigns is difficult. Although state election law requires counties to make prosecutors’ campaign finance reports available for public inspection, reports for only six of the state’s 105 counties are posted online. Voters in all of the other counties must request this information from their county. Many of those counties require voters to pay fees — sometimes significant fees — to get copies of those documents.
Counties can charge these fees because of the Kansas open records law, which allows public agencies, including counties, to charge fees “for providing access to or furnishing copies of public records.” And while the law suggests that counties should not charge more than 25 cents per page, the language of the law is vague enough that some counties charge more. Wichita County, for example, has a posted fee of $1.00 per page, in addition to up to $25 for clerical time. Clark County uses the 25 cent figure, but it charges that amount not only for physical, paper copies, but also for every “page” of an email (plus a $1.00 fee “for the first page” of the email and $21 per hour for labor).
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Counties and agencies have discretion to waive these fees. But many do not. They do not waive the fees because their office budgets have been cut so severely that they cannot afford to respond to public requests for information. And so they use these fees to help fund the operation of their offices. As a result, voters have to pay if they want to see these so-called “public records.”
This puts Kansans at a disadvantage. Most other states compile prosecutors’ campaign finance reports on a state-run website. New York, for example, has put all campaign finance information for its candidates in a searchable database available to the public. Journalists have made good use of that information. Reports surfaced recently that the Manhattan district attorney, Cyrus Vance Jr., accepted contributions from lawyers for the Trump Organization while his office was investigating Ivanka Trump and Donald Trump Jr. for fraud.
Some Kansans do have easy access to their local prosecutors’ campaign finance reports. The Kansas Governmental Ethics Commission maintains a central database of campaign finance reports for state officials. People who live in districts with district attorneys — the local prosecutors who serve in Douglas, Johnson, Reno, Sedgwick, Shawnee, and Wyandotte counties — can access campaign finance records in that database because district attorneys are considered state officials. But county attorneys — the local prosecutors for all other counties — are considered county officials. And so their reports are not included in the database.
It is unclear why district attorneys are treated differently than county attorneys. Both district attorneys and county attorneys are paid with county funds. And state law tells us that the two offices are essentially the same. So it is difficult to understand why voters in some counties should get easy access to these records, while others should have to pay.
It should be easy for all voters to find out who is donating to their prosecutors’ political campaigns. Kansas should follow the example of other states and make all prosecutor campaign finance information available on the Governmental Ethics Commission’s website.
Carissa Byrne Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina and the director of the Prosecutors and Politics Project. Jennifer Cofer is a law student at the University of North Carolina and a research associate at the Prosecutors and Politics Project.