Jurisprudence

If You Want to Reform the Police, Get Prosecutors on Your Side

A group of police officers in riot gear with batons raised at night
A police officer hits a woman with a baton after a peaceful march to mourn the death of George Floyd in downtown Houston on June 2, 2020. Mark Felix/Getty Images

George Floyd’s murder sparked a renewed national conversation around police reform, but progress in the year since his death has been stop-and-go. Reform at the federal level has languished in the Senate, while progress has been mixed in the states with some progressive efforts succeeding and others succumbing to obstinate legislatures or excessive compromise.

Stalled or failed efforts at reform are nothing new to the criminal justice community. It took Congress more than 24 years to finally address the indefensible 100-to-1 sentencing ratio for crack versus powder cocaine; then the number was only changed to a still onerous 18-to-1 ratio. It took eight more years for Congress to make that change retroactive. And repeated, bipartisan efforts to actually reduce those mandatory minimum sentences have gone nowhere.

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A new report produced by our academic research initiative suggests that those who seek to change policing policy or to make other criminal justice reforms might need to seek out an unlikely ally: their local prosecutors.

American prosecutors are active lobbyists, and their opposition to criminal justice reform in Congress has been well documented. A report released this month by the Prosecutors and Politics Project at the University of North Carolina, where we both work, shows that prosecutors also actively lobby state legislatures. The report documented that, during the years 2015 to 2018, state and local prosecutors lobbied on more than 25 percent of the more than 22,000 criminal justice–related bills introduced in the 50 state legislatures. A bill supported by prosecutors was twice as likely to pass as compared to criminal justice bills generally, while bills opposed by prosecutors passed at essentially the same rate.

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Prosecutors were most successful when they supported criminal justice reform bills. Nationwide, approximately 60 percent of bills that narrowed the scope of criminal law and 55 percent of bills that decreased punishment passed when supported by prosecutors. In contrast, when prosecutors supported bills that increased the scope of criminal law or increased punishments, only about 40 percent of those bills passed.

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Unfortunately, prosecutors generally appear to be more interested in supporting traditional tough-on-crime bills than bills aimed at reform. The study found that, on the whole, prosecutors were twice as likely to lobby in favor of a law that created a new crime or otherwise increased the scope of criminal law than for a law that would create a defense, decriminalize conduct, or otherwise narrow the scope of criminal law. In some states, those numbers are even more lopsided. For example, California prosecutors supported 127 bills that increased punishments or created new crimes, while supporting only 14 bills that decreased punishment or decriminalized conduct.

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The bills that prosecutors oppose reveal a similar tough-on-crime strategy. Prosecutors opposed 13 percent of all bills introduced that created new defenses or decriminalized conduct, and they opposed 17 percent of all bills that decreased punishment. In contrast, they opposed only 2 percent of bills that created new crimes and 3 percent of bills that increased punishment. Put simply, prosecutors consistently supported bills that gave them more power and opposed bills that would have limited that power.

These lobbying positions make prosecutors seem like unlikely partners for criminal justice reform. Indeed, a lot of prosecutor lobbying is conducted by statewide associations in which rural prosecutors are overrepresented. And advocates are likely to worry that if they partner with prosecutors, then prosecutors will insist on amendments to bills that will lessen the impact of reforms.

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But in some states, getting prosecutors on board may be the only path to reform. Although prosecutors generally are not particularly successful in blocking legislation that they oppose, prosecutors have better luck when it comes to bills that create defenses or decriminalize conduct. Nationwide, when prosecutors lobbied against those bills, they passed only 15 percent of the time. In some states, that number was even lower. In four states—Arizona, Minnesota, Oklahoma, and Pennsylvania—not a single bill that prosecutors opposed was passed into law. Reformers across the country should look at these numbers and seek to ensure that, at a minimum, prosecutors decide not to take an anti position on reform bills.

There may also be another path for reformers. Rather than trying to convince the statewide association to back their bills, they could seek to attract the support of a subset of prosecutors within their state. Prosecutors in urban and suburban jurisdictions tend to adopt more forward-looking policies and, as a group, send a smaller proportion of people to prison. In some states, these more reform-oriented prosecutors have started their own lobbying efforts, and the early results look promising.

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In Virginia, 12 elected prosecutors have banded together to form the Virginia Progressive Prosecutors for Justice. The organization actively lobbies the Virginia legislature and supported legislation in 2020 that abolished the death penalty, reformed the expungement process, and ended the “three strikes” felony enhancement for petit larceny offenses. In 2021, the Virginia Progressive Prosecutors for Justice successfully lobbied for the legalization of marijuana, making Virginia the first Southern state to both legalize marijuana and abolish the death penalty.

In California, three prosecutors broke away from the California District Attorneys Association and joined the Prosecutors Alliance of California. They have been lobbying in favor of S.B. 710, which would require elected prosecutors to recuse themselves in cases of police misconduct if they have received campaign contributions from police unions or other law enforcement groups. (California prosecutors receive more campaign contributions from law enforcement than prosecutors in most every other state.) S.B. 710 passed the California Senate earlier this month, despite opposition from the California District Attorneys Association; it is now headed to the House.

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It’s too early to tell what the long-term effect of this new progressive prosecutor lobby will be. But there is every indication that these new associations will be more willing and active voices for reform than we have seen in the past.

That would be a welcome change. America needs more criminal justice reform; we incarcerate the largest number of people in the world, and we have the world’s highest incarceration rate. So long as prosecutors continue to be successful lobbyists, having prosecutors who are willing to push for sensible reform could help reverse the tide of mass incarceration and make the criminal justice system more fair.

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