Most U.S. Prosecutors ‘Routinely’ Support Harsh Punishments: Study

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District attorneys around the country are deeply involved in lobbying for tough criminal justice legislation, but the minority of prosecutors who push for reform measures exert a powerful influence on state legislators, according to researchers at the University of North Carolina Chapel Hill Law School.

In a 50-state study examining the impact of prosecutors on the political process, researchers found that, overall, they were twice as likely to throw their support behind bills that hardened sentencing or added new crimes than to bills that might decriminalize conduct.

The findings, published as part of the Prosecutors and Politics Project, didn’t establish whether support from prosecutors made a critical difference in getting such bills passed, as opposed to lobbying from other sources.

However, if a prosecutor, or an association of district attorneys, comes out in favor of reforms, that support was likely to swing votes in state legislatures considering such legislation, the report found.

Data for the study was gathered mostly from state legislative documents from the years 2015 to 2019, as well as news articles and press releases to fill in the gaps when states lacked public data.

Editor’s note: A number of “progressive” prosecutors swept into office in many cities in the 2016 and 2020 elections, typified by the victory of George Gascón in Los Angeles last November; but researchers say they remain a minority among the justice jurisdictions around the country.

The report contains breakdowns for each state, displaying information on prosecutorial involvement, and the different bills that prosecutors lobbied for. Length and thoroughness of each state report varied based on available data in each state.

American prosecutors act as “active lobbyists who routinely support making the criminal law harsher,” said the report, noting that more than 22,000 criminal law and criminal justice bills were introduced in state legislatures during the four-year period under review.

According to the report, 40 percent of bills with prosecutorial support introduced during that period either “increased the scope of criminal law or increased the sentencing range,” indicating a harsher effect on criminal law.

But the extent of prosecutors’ involvement varied greatly state to state, as did their success rate.

Arizona, for example, had a high success rate, with 69 percent of bills lobbied by a prosecutor or by the Arizona Prosecuting Attorneys’ Advisory Council succeeding in passage, and a zero percent pass rate if they lobbied against a bill.

Nevertheless, “although they are more likely to support traditional law-and-order legislation, prosecutors are more successful when they support criminal justice reform legislation,” said the report.

Prosecutors in California supported 405 bills from 2015 to 2018, while Georgia had only 32. Bills ranged from juvenile justice to sexual assault kits, marijuana use, and spending recommendations.

Lobbying by prosecutors in each state was rated on its level of activity, from not active at all to very active.

The state of Maryland’s prosecutors were labeled “not particularly active,” only lobbying for 7 percent of criminal justice bills; while Montana was labeled “very active,” with proof of lobbying for 69 percent of criminal justice related bills.

While prosecutor support of punitive bills varied from state to state, the report indicated that there was an overall trend in prosecutorial support of measures that would make crime law stricter and make sentences harsher.

Although the report doesn’t draw conclusions based on a prosecutor’s influence on the passing of legislation, they generally experienced more success when supporting a bill instead of opposing it.

According to the report, a bill with support from a prosecutor or a prosecutor organization was twice as likely to pass.

On the other hand, opposition was less likely to have an effect on the passing of a bill.

For some states, this wasn’t the case. In Arizona, as noted above, not a single bill that prosecutors opposed passed.

“Of course, whether prosecutors lobbied in favor or against a bill does not necessarily mean that their support or opposition caused the bill to pass or to fail,” the researchers acknowledged.

“Other groups lobbied as well, and state lawmakers may have made their voting decisions without listening to lobbyists or interest groups.

“In other words, while this study measures the success rate of prosecutorial lobbying, it cannot offer any conclusions about the effect of that lobbying on the legislative process.”

The role of prosecutors in tough-on-crime legislation has long been noted by researchers.

By supporting more punitive laws, prosecutors have the power to build a criminal justice system that makes prosecuting more cases easier, noted said The Appeal, in an article examining the California District Attorneys Association.

“While prosecutors routinely deflect criticism by claiming that they merely enforce―and do not make―the law, their professional advocacy groups work the halls of state houses across the country, often advocating harsh, punitive criminal justice policies that enhance the power of prosecutors.”

Access the full report here.

Read more: “Progressive Prosecutors ‘Undercut’ by State Legislators: Paper“, The Crime Report, May 17, 2021

Emily Riley is a TCR justice reporting intern.

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