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February 25, 2018

"The Perverse Power of the Prosecutor"

The title of this post is the title of this notable new commentary authored by John Pfaff in the journal Democracy. The piece asks this question in a subheadline: "How responsible are prosecutors for holding back progressive criminal justice reform?". And here is how it starts:

One of the more important shifts in criminal justice reform over the past five or so years has been a growing awareness of just how powerful and influential prosecutors truly are. Perhaps startled to find themselves under such attention after decades of little to no scrutiny, prosecutors are now pushing back.  One common rebuttal prosecutors make is that they don’t actually have that much power.  It is the legislature, they argue, which passes the laws and thus really calls the shots.  Prosecutors simply impose what the legislature enacts.

Such claims, however, are quite disingenuous, since they conveniently overlook one of the most important sources of prosecutors’ power: their oversized influence over the legislative process.  District attorneys are not passive players in the politics of crime, sitting idly by awaiting their orders from on high.  In states from Pennsylvania to Louisiana to California, district attorneys aggressively, and effectively, lobby against reforms they dislike and for new laws that they do.  Louisiana recently adopted an expansive criminal justice reform bill, but the final version was significantly watered down from the original proposal, almost entirely due to aggressive and effective lobbying by the state’s district attorneys.  And in Pennsylvania the House of Representatives recently passed a bill (which still languishes in the Senate) reinstating drug-focused mandatory minimums that had been invalidated by the state’s supreme court; despite a majority of voters of all ideological stripes opposing the bill, it passed unanimously thanks to the concerted efforts of the state’s prosecutors.

In other words, as reformers start to pay closer attention to the power of prosecutors, they need to keep their eyes not just on how prosecutors have driven up incarceration rates in their day-to-day decisions — like deciding how many people to charge with felony charges or what type of sentence to impose on them during plea bargaining — but also on how they shape the broader politics of criminal justice.  Many former prosecutors are now judges and legislators, and current district attorneys frequently work hard to impose tougher laws and to stifle reform.  Regulating prosecutors will require looking at not just their direct powers, but their significant indirect political influence as well.

February 25, 2018 at 10:23 PM | Permalink


These law school radicalized morons are in utter failure. They are allowing 95% of serious to pass without inconveniencing the vicious predators in any way.

First end all their wrongful immunities. They should be liable, not just for false prosecutions but for wrongful discretion of failing to prosecute a dangerous predator. The Congress should not have to pass an amendment to overcome the Supreme Court's protection of these lazy, worthless, government make work jerkoffs. What the hell are they doing, slurping coffee, chomping donuts, and chatting up the secretaries? Warn the Supreme Court, you repeal this liability law, you get impeached in an hour.

If liability does not improve their performance, fire them. Replace them with public self help. Public self should be immunized and rewarded. Kill a violent criminal, get $10,000 cash. Have hunting parties who want to make good money killing criminals. To deter.

Posted by: David Behar | Feb 26, 2018 1:23:54 AM

"In states from Pennsylvania to Louisiana to California, district attorneys aggressively, and effectively, lobby against reforms they dislike and for new laws that they do."

As a California prosecutor I can tell you this is totally untrue in California and has been untrue for more than 15 years. With Burton running the shots pre term limits, and ever since, prosecutors have only succeeded when the stars aligned just right.

This piece sounds like it is part of the deceptive ACLU campaign to get to know your DA. That website's half truths and falsehoods along with the silly remark above should cause us all pause when evaluating the rest of Mr. Pfaff's claims.

Posted by: Eric | Feb 26, 2018 6:45:09 AM

here is some DoJ nonsense:


Posted by: federalist | Feb 26, 2018 8:20:24 AM

Eric. How does it feel to have a 95% false negative rate and a 20% false positive rate in your business. In what other business would error rates of such magnitude be allowed to continue.

Isn't it high time to end your unconscionable immunity from tort liability?

You stink.

Posted by: David Behar | Feb 26, 2018 8:26:56 AM

Eric, didn’t CA prosecutors help kill bills to create a state sentencing commission about 10 years ago not long after Gov declared a prison emergency? That was, as I see it, a very big deal that contributed in part to Plata and all that followed.

Posted by: Doug B. | Feb 26, 2018 9:02:23 AM


That California prosecutors have joined forces with others who call the shots in the California legislature regarding criminal justice does not make the point of the author. My point is that CA prosecutors by themselves (or in conjunction with law-enforcement) have zero power to control legislation or kill bills. This reality has been true for a very long time.

The sentencing commission would have failed regardless of the position of CDAA. The Legislature at that time knew and wanted the feds to solve their dilemma.

Posted by: Eric | Feb 26, 2018 9:17:07 AM

Eric, I appreciate your response, but I am not sure I fully get the nuances of your language in your criticisms of the Pfaff commentary. One could accurately assert that the NRA or the AARP has "zero power to control legislation or kill bills" given that these groups do not formally have elected positions and so do not have formal votes/power to move or thwart the formal legislative process. But we all know that the NRA and AARP still have lots of political power because they, in the words Pfaff uses here, "aggressively, and effectively, lobby against reforms they dislike and for new laws that they do."

I think this is the heart of the point being put forward in this commentary --- namely that prosecutors often do operate as a powerful and effective lobby in legislatures opposing reforms they dislike and advocating for those they do like. (And, not to be overlooked, legislatures often have a number of former prosecutors in their ranks.)

I am most familiar with the legislative process in the federal system and in Ohio, and I can say without hesitation that any and all legislative reforms actively supported by police and prosecutors stand a MUCH MUCH greater chance of passage than any and all legislative reforms actively opposed by police and prosecutors. Would you dispute that characterization in California, Eric?

Posted by: Doug B | Feb 26, 2018 10:26:43 AM

The legislative power of the NRA and of the AARP does not come from aggressive lobbying, nor from their wealth, nor from their campaign contributions. It comes from the number of their members that vote, in the millions.

I would support a crime victims' organization, along the lines of those organizations. It would have 10's of millions of members. Prosecutors could join in, and inform the membership of the implication of legal proposals.

Posted by: David Behar | Feb 26, 2018 11:14:00 AM

The simple fact is that the CA Legislature and specifically the democrats who run the public safety committees are not beholden to prosecutors. We have not been "effective" in our lobbying for years unless you count effectiveness by acquiescing in what the defense bar wants just so that wehave a seat at the table to mitigate the damage.

Just look at CALECPA as a recent example. It was written by the ACLU and EFF. Nobody in law enforcement wanted it, but it could not be stopped. Prosecutor groups are received here like defense attorney groups in other states. It has been that way for years.

Posted by: Eric | Feb 26, 2018 1:44:52 PM

As an example of recent legislation. LWOP for juveniles has been repealed. Judges now have the power to dismiss outright any gun enhancement for ANY crime, including murder. Except for special circumstances murder, all defendants who committed their crimes prior to age 26 are eligible for parole at 25 years no matter how many crimes, including sex offenders. The Legislature would have included 25 and younger defendants subject to the three strikes law if they could have but they need 2/3 in each house of the Legislature for that. They will go for it when they get their supermajority back. Next I expect they will target special circumstance (aka death eligible) murderers under age 26 who are serving LWOP citing Miller v. Alabama.

Pfaff's comment is most assuredly true in many places, but not California. Plus if you read the article from The Nation that he links as support for the point, the so called evidence is that CDAA opposed Prop 57. Yes they did and got clobbered. Hardly evidence of blocking progressive reform.

Posted by: Eric | Feb 26, 2018 2:10:57 PM

Many thanks, Eric, for this specific accounting of the types of reforms that now move forward in CA despite opposition from prosecutors. I suspect Pfaff may be thinking about the pre-Plata, Schwarzenegger era when it often seemed that a lot of reform talk/efforts were seemingly thwarted by police and prosecutors. But that is now nearly a decade ago, and I am not surprised to hear you assert that the reality on the ground is much different now.

That said, I went to the CDAA site and saw this accounting of 2017 developments: "CDAA sponsored 12 bills this year. Of those, 7 made it to the Governor’s desk, and all were signed into law. Considering the current legislative environment, this was a very successful year. Several bills that would have had profoundly negative effect on the criminal justice system were either killed in the Legislature, vetoed by the Governor, or negotiated to a point that they will have a minimal impact on prosecutors." https://www.cdaa.org/

I do not know exactly what it means for CDAA to "sponsor" a bill --- but getting 7 sponsored bills signed into law in a single year seems pretty impressive and strike me as a sign of continued legislative significance.

Posted by: Doug B. | Feb 26, 2018 3:39:21 PM

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