Prosecutors Don’t Just Enforce Laws—They Lobby Hard to Make Them

    Prosecutors are famous for saying they don’t make the law, they only enforce it. In recent years, prominent legal scholars and journalists have made the case that this adage is a calculated ruse.

    Top state lawmakers know this is the case, too. Before former Maricopa County Attorney Bill Montgomery became a state supreme court justice, Russell Bowers, the speaker of the Arizona House of Representatives, said of him: “I understand what a marriage takes, and I want to stay married.”

    Buddy Jacobs, the director of the Florida Prosecuting Attorneys Association for decades, was once called the single most powerful lawyer in Florida. That was due to his incredible ability to convince state lawmakers that any new law to lock more people up, including children, was a uniquely good idea.

    What was lacking on the subject was empirical study, but not anymore. The Prosecutors and Politics Center at the University of North Carolina School of Law just released a report that studied all incidents of prosecutorial lobbying at the state level from 2015 to 2018.

    To a significant extent, prosecutors don’t just enforce the law; they often seek to make it.

    More than 22,000 criminal justice bills were proposed in all 50 states from 2015 to 2018. Excluding 5,388 bills from 12 states that did not have the records, prosecutors lobbied for or against 27 percent of all criminal justice bills, or 4,485 of them.

    They asked for more funding, harsher laws (supporting 17 percent of those bills) and broader application of those laws (supporting 15 percent of bills) more often than they asked for decreased harshness (12 percent) or a narrowing of the law (8 percent).

    Nonetheless, they were overall more successful at lobbying for reform (a 55-60 percent success rate) than for mass incarceration (a 40-42 percent success rate).

    However, that does not mean that all or even more than a few prosecutors support reform in general. Prosecutors just often serve as the gatekeepers of the possible. Just last month, Louisiana’s district attorneys protested a bill that would have let people sentenced to life without parole for crimes they committed as children apply for parole. The legislator who introduced it took it off the floor.

    Generally, the reforms that prosecutors end up supporting are tepid measures that have done little to ameliorate mass incarceration. The total number of US prisoners briefly dipped during the height of the coronavirus pandemic due to health concerns, but it is quickly climbing back to last decade’s “normal” of 2.1 million people behind bars.

    The study also did not take into account how prosecutors use their influence through public statements and behind-the-scenes chats with legislators to water down and sometimes gut bills. For example, back in 2018, former Maricopa County Attorney Bill Montgomery convinced a state representative that people with nonviolent felony convictions need to wait seven years, not two, before getting the chance to seal their records. 


    Huge Variation Among States

    In states as diverse as California, Colorado, and Indiana, prosecutors are more likely lobbying than not, so far as criminal justice bills are concerned. Perhaps that is why cannabis advocates decided to go the ballot initiative route to legalization in California and Colorado.

    In Nebraska and Ohio, prosecutors showed up to lobby for or against over 95 percent of all criminal justice bills, usually to further mass incarceration. A story from 2019, when Ohio state senators wanted to change drug possession charges from felonies to misdemeanors, shows how that usually plays out. Vic Vigluicci, the Ohio Prosecuting Attorneys Association president and Portage County’s elected prosecutor, told the legislature that, “Judges need the discretion and flexibility to fashion the appropriate penalty to incentivize recovery, up to and including prison and the collateral consequences of felony conviction.”

    The bill passed the Senate. Once it got to the House, it died in committee without a vote.

    In other states, like Oklahoma, prosecutors barely show up. Sometimes, they just spout their hyper-carceral feelings to the media. But their lobbying would likely be superfluous. Sadly, in the most incarcerated state in the most incarcerated nation in the world, support for mass incarceration is practically in the drinking water.

    The California District Attorneys Association, meanwhile, is also very conservative. This association for the state’s elected local prosecutors virtually never supports reform. It even acted like the sky would fall over Proposition 64, which legalized cannabis for adults.

    The CDAA lobbied for or against over half of the state’s criminal justice bills. Ironically, the CDAA would appear to be rather bad at this job. When the CDAA lobbied for a bill, the likelihood of the bill’s success went up less than three percentage points, from 45 percent to 47.4 percent. When it lobbied against a bill, the bill’s likelihood of passage increased by seven percentage points. Is it because California has a very liberal state legislature? Or is it because the state’s DAs cry wolf over even the most modest reform proposals? It’s hard to say.

    Only 38 percent of bills targeted for destruction by Nevada prosecutors passed.

    On the flip side, people may be wondering how Nevada, a newer blue state where Bernie Sanders dominated in the 2020 presidential primaries, manages to have an incarceration rate above the US average. The answer may well be “prosecutors.”

    When Nevada prosecutors lobbied in favor of a criminal justice bill to pass, its passage rate soared from 55 percent—a coin toss—to a solid 75.8 percent. Meanwhile, only 38 percent of bills targeted for destruction by the prosecutors passed. This is troubling, since too many Nevada prosecutors, particularly the ones based in Las Vegas, have a draconian and sometimes bigoted ideology.

    For example, the state recently moved its age of criminal responsibility up from the medieval age of eight to the marginally less-barbaric age of 10. But before this eminently reasonable proposal became law, Brigid Duffy, the director of the Juvenile Division of the Clark County (Las Vegas) district attorney’s office, fear-mongered about 8- and 9-year-olds molesting kids and turning more kids into child molesters.

    Disturbing comments amongst that office’s leadership have also gone viral. After Clark County Chief Deputy DA Jonathan VanBoskerc slammed Disney for removing old racist caricatures from its amusement parks in a Florida newspaper, he became “Disney Karen,” a vital internet sensation. Perhaps unsurprisingly, his office has repeatedly been humiliated by the Nevada Supreme Court for its desperate attempts to keep Black people from serving on juries.


    Wider Implications

    Prosecutors’ lobbying influence is frequently bad, as we would expect. But a more constructive implication of the statistics in the new report is that when bills seek to decrease incarceration, or the coercive power of the criminal-legal system over people’s lives, prosecutors being supportive—or at least staying out of the conversation—is of key importance for passage.

    While the study provides comprehensive data on the “success rate” of prosecutor lobbying, its authors don’t claim to demonstrate causation, noting that “it cannot offer any conclusions about the effect of that lobbying on the legislative process.” A variety of factors must be taken into account when trying to figure out why a certain bill passed or failed—not least the horse-trading that is a typical part of how state law is made.

    What would be amazing is if state legislators saw this report for what it is: an honest mirror-image of themselves.

    For veteran prosecutor-watchers, this report will be fascinating for the suspicions it confirms as well as for its new revelations.

    In Arizona, not a single bill that prosecutors lobbied against passed in the legislature. Thus, when Arizonans wonder why their state does not have a law permitting cannabis use for adults, they should know who to blame: people like the frantically anti-cannabis Bill Montgomery, who once infamously called a war veteran “the enemy” for using the venerable plant.

    What would be amazing is if state legislators saw this report for what it is: an honest mirror-image of themselves. Lawmakers enjoy a lot of deference from courts and supposedly a lot of power. But if you have to stay “married” to someone like Montgomery, who tried to put a pair of parents in jail for using medical cannabis to successfully treat their terminally ill son’s seizure disorder, maybe that power is only skin-deep.



    Image via Stockvault

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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