by Matt Clarke
Around the nation, powerful lobbying groups composed of associations of prosecutors are influencing state legislatures to reject certain laws, regardless of how popular the proposed laws are with the electorate.
In his January 2018 State of the State address, New York Governor Andrew Cuomo called for justice reform legislation that would limit civil-asset forfeiture, revamp discovery, reduce trial delays, and significantly lessen the use of cash bail. To underscore his commitment, he told the story of Kalief Browder who, at age 16, was jailed for allegedly stealing a backpack.
Browder, who maintained his innocence, was unable to post the $3,000 cash bond, so he spent three years in New York City’s notorious Rikers Island jail awaiting trial. There, he was abused by other prisoners and staff and was frequently placed in solitary confinement. The charges were dropped, but the trauma remained. Two years after he was freed, Browder took his own life.
During the address, Cuomo told Browder’s brother, who was an invited guest, “I want you to know that your brother did not die in vain. Sometimes, the Lord works in strange ways—but he opened our eyes to the urgent need for real reform.... We will address it, and you have my word on that.”
Polls showed over 70 percent of voters—including more than 70 percent of crime victims—supported pretrial release of those accused of misdemeanors or nonviolent felonies who were not a flight risk. But when it came time to pass the legislation as a budget rider, Cuomo met with just three powerful legislators and negotiated a budget that did not include the reform package.
What happened to bail reform in New York?
The District Attorneys’ Association of the State of New York, whose membership includes all of the state’s 62 district attorneys and many assistant district attorneys, used its influential lobbying power to kill the bill. It released a statement saying the bail reforms “go too far” and its supporters didn’t understand “the realities of human behavior” and “how the criminal mind operates.” That was enough to get it dropped from the agenda.
New York is not unique. A rare, bipartisan attempt to reform civil asset forfeiture laws in Alabama was opposed by the Alabama District Attorneys Association and other law enforcement groups that said there would be “fewer busts of drug and stolen property rings” because law enforcement would lack incentives, as if enforcing the law was not enough reason to make the busts.
Both the conservative Alabama Policy Institute and liberal Southern Poverty Law Center supported the reform. It still failed to pass.
The California District Attorneys Association is pushing legislation to limit criminal justice reform passed by the voters in two propositions. The Arizona Prosecuting Attorneys’ Advisory Council opposes reform of bail and civil forfeiture while pushing for stiffer drug sentencing.
The Nebraska County Attorneys Association scuttled proposed legislation to make the use of jailhouse informants more transparent. The Minnesota County Attorneys Association is opposing pending civil-asset forfeiture legislation. The Indiana Prosecuting Attorneys Council gave legislators a “firm warning” against any marijuana legalization in November 2017.
Perhaps the most powerful prosecutors association is the Louisiana District Attorneys Association, which can boast that only 38 percent of criminal justice legislation it opposes gets passed while 85 percent it endorses makes it into law.
Examination of the lobbying done by prosecutors associations shows a singular bias. Prosecutors endorse what makes it easier to win, not what makes it more likely justice is served. Yet seeing that justice is served is supposed to be their mandate.
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