Prosecutor Lobbying In The States, 2015-2018 - UNC School Of Law

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ProsecutorLobbyingin the States,2015-2018The Prosecutorsand Politics ProjectJune 2021

Table of ContentsAbout the Prosecutors and Politics Project. 3Executive Summary . 4About the Study. 12State Reports . 14Alabama . 15Alaska . 19Arizona . 24Arkansas . 30California .35Colorado. 46Connecticut . 51Delaware . 59Florida . 62Georgia .73Hawaii . 80Idaho. 85Illinois . 90Indiana . 96Iowa . 104Kansas . 109Kentucky . 116Louisiana .120Maine .128Maryland . 134Massachusetts. 138Michigan . 143Minnesota . 149Mississippi .159Missouri .1621

Montana. 168Nebraska . 173Nevada. 177New Hampshire . 190New Jersey .197New Mexico. 198New York . 203North Carolina .210North Dakota .214Ohio. 220Oklahoma . 224Oregon . 233Pennsylvania . 239Rhode Island . 245South Carolina. 252South Dakota . 255Tennessee. 262Texas . 268Utah . 276Vermont . 283Virginia . 290Washington. 293West Virginia .299Wisconsin . 304Wyoming .311Acknowledgments .3142

About the Prosecutors and Politics ProjectThe Prosecutors and Politics Project is a research initiative at the University ofNorth Carolina School of Law. Founded in 2018, the Project studies the role ofprosecutors in the criminal justice system, focusing on both the politicalaspects of their selection and their political power. The Project endeavors tobring scholarly attention to the democratic accountability of electedprosecutors, to increase our understanding of the relationship betweenprosecutors and politics through empirical study, and to publicly shareresearch in order to increase voters’ knowledge about their electedprosecutors and broader criminal justice issues.For more information about the Prosecutors and Politics Project, its mission,and its research, please visit prosecutors-and-politics-project/Questions about this report should be directed to the PPP director,Professor Carissa Byrne Hessick (

Executive SummaryAmerican prosecutors are active lobbyists who routinely support making thecriminal law harsher. During the years 2015 to 2018, state and localprosecutors were involved in more than 25% of all criminal-justice-related billsintroduced in the 50 state legislatures. Prosecutors were nearly twice as likelyto lobby in favor of a law that created a new crime or otherwise increased thescope of criminal law than a law that would create a defense, decriminalizeconduct, or otherwise narrow the scope of criminal law. And when stateprosecutors lobbied in favor of a bill, it was more than twice as likely to passthan an average bill.Prosecutors appeared to have more success when they lobbied in favor of abill than when they opposed a bill. Although bills with prosecutor supportwere twice as likely to pass, prosecutor opposition to a bill did not reduce itslikelihood of passing.Notably, prosecutors were more successful when they supported criminaljustice reform bills than when they supported traditional law-and-order bills.Approximately 60% of bills that narrowed the scope of criminal law and 55%of bills that decreased punishment passed when supported by prosecutors.In contrast, when prosecutors supported bills that increased the scope ofcriminal law, only 40% of those bills passed; and bills that increasedpunishments did not fare much better, passing only 42% of the time.Criminal Justice Bills IntroducedMore than 22,000 criminal law and criminal justice bills were introduced in the50 state legislatures during the four-year period from January 1, 2015 toDecember 31, 2018. The number of bills introduced varied wildly by state. Themost bills (1536) were introduced in New York; the fewest bills (80) wereintroduced in Alaska. The median state introduced 296 bills. 1They way that different states grouped their companion bills affected these numbers. Forexample, if state legislature websites clearly linked companion bills to one another, then the stateand house version of the same bill may were sometimes counted as a single bill, while they were14

Our researchers coded the bills based on the criminal justice issues that theyinvolved. They identified the following types of criminal justice issues: Bills that increased the scope of criminal law by creating new crimes,broadening definitions, eliminating defenses, or otherwise increasingthe coverage of substantive criminal lawBills that decreased the scope of criminal law by creating new defenses,narrowing definitions, decriminalizing conduct, or otherwise decreasingthe coverage of substantive criminal lawBills that increased punishment by raising maximum sentences,instituting or increasing mandatory minimum sentences, increasing theamount of time before defendants are eligible for parole or earlyrelease, raising the amount of fines, or otherwise making punishmentharsherBills that decreased punishment by reducing maximum sentences,eliminating or decreasing mandatory minimum sentences, decreasingthe amount of time before defendants are eligible for parole or earlyrelease, lowering the amount of fines, or otherwise making punishmentmore lenientBills that changed relevant procedural limitations on criminal justiceactors, including but not limited to bills that required search warrantsfor certain law enforcement activities, bills that altered bail and pretrialrelease procedures, and bills that changed evidentiary requirements.Bills that involved either increased or decreased funding for criminaljustice activitiesBills that altered the rights, responsibilities, or liability of criminal justiceactors, including but not limited to bills that established or alteredcriminal-justice-related agencies, bills involving civil asset forfeiture, andbills that changed immunity protections for law enforcement.Bills that raised any other issueWhen a bill touched on multiple issues, we coded it using multiple issue codes.For example, a bill that both would create a mandatory minimum of 30 daysin jail for people convicted of driving while intoxicated and would providecounted as two separate bills in other states where the legislature did not make the relationship asclear.5

additional funding to county jails to offset the cost of increased jail populationsreceived two separate issue codes.Overall, state lawmakers were more likely to introduce bills that made thecriminal justice system harsher than bills that made the law more lenient.More 40% of the bills introduced either increased the scope of criminal law orincreased the sentencing range. In contrast, only 11% of bills narrowed thescope of criminal law or decreased punishment. Many criminal justice billsdealt with procedural issues. 35% of bills proposed changes in procedurallimits or altered the rights, responsibilities, or liabilities of criminal justiceactors. And less than 5% of bills dealt with funding issues.Topic of Bills Introduced7%increase criminal law33%20%decrease criminal lawincrease punishmentdecrease punishmentprocedural limits4%funding7%15%4%rights, responsibility, liabilityother10%Many of the bills that proposed changes in procedural limits or altered therights, responsibilities, or liabilities of criminal justice actors did so in a waythat favored prosecutors or law enforcement more generally. However, wedid not code bills according to whether they would have helped or hurt lawenforcement because such a designation would have required too much statespecific knowledge and because it may have proven to be too subjective of adetermination.6

Quantifying Prosecutor LobbyingOverall, prosecutors were involved with 27% of bills that were introduced. 2The extent of prosecutor lobbying varied from state to state. Prosecutors inNebraska and Ohio lobbied on more than 95% of bills, while prosecutors inMaryland and Pennsylvania lobbied on only 7% bills introduced andprosecutors in Oklahoma lobbied on less than 6% of bills. We were unable todetermine the full extent of prosecutorial lobbying in 12 states because therelevant legislative records were unavailable. 3Prosecutors were more likely to lobby on certain legislative issues than others.They were most likely to lobby in favor of bills involving the funding criminaljustice activities. They lobbied in support of 19% of all such funding bills thatwere introduced during the study period.Overall, prosecutors were more likely to support bills that made criminal lawharsher and to oppose laws that made criminal law less harsh. Prosecutorslobbied in favor of 15% of all bills that sought to create new crimes orotherwise expand the scope of criminal law. Similarly, they lobbied in favor of17% of all bills that sought to increase punishment. Prosecutors opposed 13%of all bills that sought to create defenses, decriminalize conduct, or otherwisenarrow the scope of criminal law. And they lobbied against 12% of all bills thatsought to decrease punishment. In contrast, prosecutors rarely opposed billsthat sought to increase the criminal law or increase punishment—theyopposed only 2% and 3% of those bills respectively.However, prosecutors’ lobbying activity was not uniformly in favor of harsherlaws and against leniency. They supported 8% of the bills that sought todecrease the scope of criminal law. And they supported 12% of bills thatsought to decrease punishment.This figure excludes 5,388 of the 22,216 bills for which we were unable to determine whetherprosecutors lobbied.3Those states are: Alabama, Arkansas, Kentucky, Mississippi, New Jersey, New Mexico, New York,North Carolina, South Carolina, Virginia, West Virginia, and Wyoming.27

Prosecutor Support by IssuePercentage of bills with prosecutor supportPercentage of bills with prosecutor opposition20%18%16%14%12%10%8%6%4%2%0%Quantifying Prosecutor SuccessNationally, prosecutors were most successful when they lobbied in favor of abill. On average, only 22% of criminal law and criminal justice bills passed.Those bills that prosecutors supported had a 45% pass rate.Prosecutors were less successful in blocking legislation that they opposed.The pass rate of bills that prosecutors opposed was 23%, which is slightlyhigher than the average pass rate. Notably, prosecutors were most successfulin blocking bills that sought to decrease the scope of criminal law. Whenprosecutors opposed such bills, they passed only 15% of the time.Of course, whether prosecutors lobbied in favor or against a bill does notnecessarily mean that their support or opposition caused the bill to pass or tofail. Other groups lobbied as well, and state lawmakers may have made their8

voting decisions without listening to lobbyists or interest groups. In otherwords, while this study measures the success rate of prosecutorial lobbying, itcannot offer any conclusions about the effect of that lobbying on the legislativeprocess.As with other issues, the success rate of prosecutor lobbying variedsignificantly from state to state. In Delaware, for example, every bill thatprosecutors supported ultimately passed. 4 Arizona prosecutors were alsovery successful lobbyists—none of the bills that they opposed was able topass.But prosecutors in other states did not fare as well. Bills supported byNebraska prosecutors were no more likely to pass than bills they did notsupport. And bills supported by Missouri prosecutors were actually less likelyto pass than the average criminal justice bill. In several states bills thatprosecutors opposed were more likely to pass than the average criminaljustice bill.Prosecutor success rates differed by the type of legislation. Prosecutors weremost successful when supporting bills that sought to decrease coverage ofsubstantive criminal law. They were also most successful in opposing thosetypes of bills.Prosecutor Success by IssueBills with prosecutor opposition that passedBills with prosecutor support that passeddecrease criminal lawchange procedural limititsdecrease punishmentrights, responsibilities, liabilityotherfundingincrease punishmentincrease criminal law0%10%20%30%40%50%60%70%We were unable to collect relevant information for 63 bills introduced in the Delaware legislatureduring the study period. So it is possible that not every single bill that prosecutors supportedactually passed.49

Coordinated Prosecutor LobbyingSome prosecutor lobbying comes from specific prosecutor offices. Anindividual elected prosecutor or an employee in her office may choose totestify in favor or against a bill. The same is true for state attorneys general—some state AGs were active lobbyists.But in many states the prosecutor lobbying was more coordinated. Moststates have one or more organizations—often called associations orcouncils—that exist in part to lobby the state legislature. Some of theseorganizations are private non-profit corporations; others were created bystatute. The organizations also serve other, non-lobbying purposes, such asproviding training materials to local prosecutor offices or appointing membersto serve on statewide commissions. 5The existence of these state organizations did not necessarily supplant thelobbying of individual prosecutors or the state AG. And, from time to time, thevarious prosecutors or their organizations took inconsistent positions on bills.When that occurred, we treated the bill as having both been supported andopposed by prosecutors.Variation in the StatesProsecutor lobbying is different in different states. For example, even thoughprosecutors, as a group, were not very successful at blocking legislation,prosecutors in particular states were very successful. Most notably, theArizona legislature did not pass a single bill that the states’ prosecutorsopposed. Thus, reports for each state—including both statistics and analysesof a select number of bills—are included in this report. As those reportsindicate, prosecutors in different states engage in different amounts oflobbying, and they experience different levels of success when they lobby.State variation notwithstanding, there are five clear national trends: First, prosecutors are heavily involved in the passage of criminal law andcriminal justice legislation.See generally Tyler Yeargain, Prosecutorial Disassociation, 47 AMERICAN JOURNAL OF CRIMINAL LAW 85(2020) (providing more information about state prosecutor organizations).510

Second, prosecutors are more likely to support legislation that expandscriminal law and criminal punishment than legislation that decreasesthe scope of criminal law or criminal punishment.Third, when prosecutors lobby in favor of legislation, it is much morelikely to pass.Fourth, prosecutors are more successful when they lobby in favor ofbills that seek to narrow the scope of criminal law and bills that seek todecrease punishment. Their success rate for these bills is 15% higherthan their success rate when they support bills that increase the scopeof criminal law or increase punishment. In other words, although theyare more likely to support traditional law-and-order legislation,prosecutors are more successful when they support criminal justicereform legislation.Fifth, prosecutors are less successful at having legislation that theyoppose fail than they are at having legislation that they support pass.The one notable exception to that trend is bills that seek to decreasethe scope of criminal laws. When prosecutors oppose those bills, theyare highly unlikely to pass.11

About the StudyThe information in this report was derived from three major sources: a) officiallegislative documents, b) news media accounts, and c) press releases,newsletters, and similar materials created and maintained by various stateprosecutor organizations. The study period includes information from January1, 2015 through December 31, 2018.For legislative documents, researchers identified every bill related to thecriminal justice system that was introduced in every state legislature duringthe study period. A separate spreadsheet was created for each state, and eachbill was given its own row in the spreadsheet. In most states, bills could beidentified by examining the legislature’s own website. When a legislature’swebsite proved difficult to navigate, researches used LegiScan to identify billsinstead.Once all relevant bills were identified, researchers employed content analysisto code the following information for each bill: the nature of legislative actionstaken (e.g., committee hearing, committee vote, floor vote, etc.), the topic thatthe legislation addressed (e.g., to increase the scope of criminal law, todecrease punishment, funding, etc.), and the nature of any involvement by aprosecutor association or an individual prosecutor (e.g., did they lobby in favoror against a bill, speak favorably but not endorse the bill, request amendmentsto the bill, etc.).Information about whether a prosecutor lobbied proved the most difficult tolocate. Some states had archived committee hearing videos, witness lists, orsimilar materials that allowed researchers to determine whether prosecutorsspoke in favor or against particular bills. But in some states those materialswere only sporadically available, and some states did not appear to make suchmaterials available at all—at least, we were unable to locate the materials onthe legislature’s website. Thus, in order to expand information aboutprosecutor involvement, we supplemented official legislative materials withnews media searches and materials from prosecutor associations.The news media searches looked for stories that mentioned the stateprosecutor organizations and their leadership in the newspapers of theirrespective states. Searches were conducted in two databases: LexisNexis and12

NewsBank’s America’s News. Researchers also supplemented those twodatabases with Google News searches.Researchers created a separate spreadsheet for news media results from eachstate. Using content analysis, researchers recorded any news story thatmentioned the policy positions or lobbying activity of a prosecutor association.Researchers also sought out any information on association support oropposition of particular bills from the associations’ website bill trackers,newsletters, press releases, etc. Using this information and the news mediaspreadsheet, researchers then updated the state spreadsheets of individualbills to include any additional information about prosecutorial involvement.News media searches sometimes revealed that prosecutors were lobbyingbehind closed doors. For example, there is no public record of prosecutorstestifying against an Arizona bill that would have expanded the state’s CriminalJustice Commission. However, news reports make clear that the bill was killedin committee after the Maricopa County prosecutor met privately with the bill’ssponsor. 6 It is doubtful that all such private meetings were reported by themedia. Thus, it is likely that our study undercounts the amount of prosecutorlobbying that occurs.All spreadsheets and the content analysis codebook are publicly available inthe UNC Dataverse. 7Megan Cassidy, Justice Statutes Resistant to Reform; Critics: Prosecutors Thwarting Bipartisan Bills, THEARIZONA REPUBLIC, May 9, 2018, at stentId doi:10.15139/S3/BQ2DRT613

State ReportsThe following state reports contain three sections. The first section providesa statistical overview of prosecutor lobbying in that state. For those states inwhich information about prosecutor lobbying was entirely or largelyunavailable, statistics are not provided.The second section provides information about any state prosecutororganizations. Drawing largely on the organizations’ websites, contemporaryand historical media accounts, and any relevant statutes, the section providesan overview of each organization’s composition and history. When a statecontains multiple organizations, the section also provides information (to theextent it is available) about any relationship between the organizations.The third section of each report provides information about the specific billson which prosecutors lobbied. Using both official legislative materials andmedia accounts, the section identifies the major legislative issues during thestudy period and the position that prosecutors took on those issues. Whereavailable, the section also provides direct quotes from prosecutors orprosecutor organizations explaining their support or opposition for particularbills.14

State of AlabamaAlabama District Attorneys AssociationIt is difficult to assess the lobbying efforts of Alabamaprosecutors because so much data was unavailable.We were able to confirm that prosecutors lobbied onat least 20 bills, which constitute 11% of the 188criminal justice bills introduced during the studyperiod. Given how much information is missing, it isnot possible to assess the frequency or success ofthose lobbying efforts.Association Composition and HistoryThe Alabama District Attorneys Association (ADAA) is composed of the state’s 42elected district attorneys, one per county. 1 The association has a five-personExecutive Committee composed of currently-serving district attorneys.The ADAA mission statement is largely focused on training and victims’assistance: “The ADAA is committed to creating safe communities, providingassistance to crime victims and advocating for excellence in the legal system.The association provides resources and assistance to district attorneys’ officesthroughout Alabama, contributing to the fair and efficient administration ofjustice.” 2Barry Matson is the Executive Director of the Alabama District AttorneysAssociation. 3 His current social media accounts list him as the Deputy Directorof Prosecutor Services. 4 There are several lobbyists on the ADAA payroll, but it isnot clear what their duties are. 5Recent media accounts suggest that the ADAA is an influential lobbying force.For example, one state legislator who was attempting to reduce the penalty formarijuana possession said, “If I don’t get the DAs’ support, the bill is not going tomove forward.” 6The Association appears to have some sort of authority over criminalprosecutions. In 2018, the ADAA entered into an agreement with Alabama15

federal prosecutors to send more cases to the federal courts in order to avoidovercrowding in Alabama prisons. 7News accounts suggest that the ADAA may have been in existence since theearly 1900s. A 1911 news article discusses the priorities of the ArkansasProsecuting Attorneys’ Association, which is presumably a precursor to thecurrent association. That article indicates that the association was focused onissues like the felony of perjury and whether the death penalty should beabolished. 8AnalysisThe most significant debate during the study period was a bill that would havelimited the use of civil asset forfeiture and required a systemic way of trackingthose forfeitures. The ADAA and the state sheriffs strenuously opposed thislegislation, which was supported by criminal justice reform groups. 9 BarryMatson, along with other district attorneys, criticized the bill, calling it “grosslyfalse” and full of “incorrect facts.”10 The 2018 bill failed to pass although a similarbill did become law in 2019 after the study period ended.Of the bills where we have relevant data, the ADAA sometimes assisted in thedrafting or amending of a bill. For example, the ADAA assisted with the draftingof SB 67, which increased the sentences for several crimes. 11 Prosecutors alsosupported harsher sentencing laws for repeat DUI convictions. 12The ADAA opposed legislation that would have created more lenient rules forcarrying loaded firearms 13 and supported adding fentanyl to a list of controlledsubstances that carried harsh criminal penalties for possession. 14No part of me or anybody on the proponents' side wants to putmore people in jail. This is about lives. This is such a deadlysubstance.Barry Matson, Executive Director of theAlabama District Attorneys Associa

Quantifying Prosecutor Lobbying . Overall, prosecutors were involved with % of bills 2that were introduced. 27 The extent of prosecutor lobbying varied from state to state. Prosecutors in Nebraska and Ohiolobbied on more than 95% of bills, while prosecutors in Maryland and Pennsylvania % bills introduced and lobbied on only 7

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