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.
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