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May 15, 2022

"The Prosecutor Lobby"

The title of this post is the title of this new article on SSRN authored by Carissa Byrne Hessick, Ronald Wright and Jessica Pishko. Here is its abstract:

Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process.  The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform.  In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America.  Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby.  Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform.  By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature.  We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.

May 15, 2022 at 10:06 PM | Permalink


My personal experience is that the legislative success of prosecutors depends upon what they are asking for. Most legislators are not lawyers (and even in the rural areas, they do not tend to ask the local prosecutors for input on bills related to the criminal justice system). Thus, it comes down to whether the proposal makes common sense to the legislator. If it does, it has a chance of getting through. If it takes more than three minutes to explain why the change would benefit the community/law enforcement, it has minimal chance of passing.

Most of the "tough on crime" bills are not on the prosecutors' wish list for the session. Rather, they tend to be the product of a constituent who has connections to the legislator who was told by the prosecutor that she could not get a tougher sentence because the offense was only a lower-level felony or the conduct was either not an offense under current law or only fit an offense that was a lower-level felony despite allegedly aggravating circumstance.

The bottom line is that, while prosecutors may have better chances of success than the criminal defense bar, both groups rank rather low on the list of influential lobbying groups. Whether the more influential groups align with prosecutors or the defense bar depends on the proposal.

Posted by: tmm | May 16, 2022 11:41:59 AM

Today as seldom if ever before, it's a mistake to treat "prosecutors" as a homogenous group, which the article seems to. With pro-defendant prosecutors holding power in so many populous cities (NYC, LA, Chicago, Philly, Baltimore, St. Louis, Seattle, Minneapolis, San Francisco, etc.) it's a big mistake to think that there is any one agenda being pushed by "prosecutors."

Posted by: Bill Otis | May 16, 2022 12:46:42 PM

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