Prosecutors Aren’t Just Enforcing the Law — They’re Making It

Just a few months ago, New York Governor Andrew Cuomo seemed sure that criminal justice reform was imminent. During his annual State of the State address in January, he called for a legislative package that would limit civil asset forfeiture, reform discovery, reduce trial delays, and most notably, significantly reduce the use of cash bail. “For far too long, our antiquated criminal justice system has created a two-tier system where outcomes depend purely on economic status — undermining the bedrock principle that one is innocent until proven guilty,” Cuomo said.

To underscore the dysfunction of New York’s criminal justice system, Cuomo told the story of Kalief Browder. Browder was 16 when he was jailed for stealing a backpack. He spent three years imprisoned at Rikers Island because his family could not afford his $3,000 bail. His time in jail was marked by abuse from guards and fellow inmates alike, as well as long stints in solitary confinement. Browder maintained his innocence, and eventually the charges against him were dismissed. But it was too late—Rikers had destroyed him. Two years after his release, Browder committed suicide. As Cuomo vowed to fix the state’s bail system, he addressed Browder’s brother, an invited guest, directly. “Akeem,” he proclaimed to the young man sitting in the audience. “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.”

Cuomo’s aides characterized the legislative package as “the most progressive set of reforms in the nation.” But as he tried to corral support from defense lawyers and reform supporters, many of them remained troubled by some of the details. At best, with some wrangling, it would be only the beginning of what is inevitably going to be a long road. But it was something.

Advocates were especially hopeful for bail reform: One poll found that more than 70 percent of people supported pretrial release for those accused of misdemeanors or nonviolent felonies, as long as they weren’t a flight risk. Even more striking, more than 70 percent of crime victims supported release under those conditions. “There’s a real delta between what the public wants and what is currently happening,” Zoe Towns, of FWD.us, said. “We hope that the finding will really … encourage lawmakers to be bold on this issue.”

Until late March, it looked as if significant change might move forward. But then, suddenly, it was over. The budget, signed earlier this month and primarily negotiated in private by the governor and just three powerful legislators, did not include the criminal justice reforms Cuomo so adamantly supported just weeks ago. Despite what he said to Akeem, the budget doesn’t fund bail reform at all. As journalist Max Rivlin-Nadler wrote in this publication, “For bail reform advocates, including public defenders and advocates for incarcerated people, the plan’s failure serves as a bitter reminder of how difficult it is to eliminate cash bail, despite overwhelming support to do so.”

Whose fault is it that criminal justice reform failed in New York? While there’s plenty of blame to go around — a corrupt legislature, Cuomo’s craven maneuvering, the bail bond lobby — there’s one behind-the-scenes player whose influence gets little attention: the District Attorney’s Association of the State of New York (DAASNY).

DAASNY has been shaping criminal justice legislation in New York for over a century. The association’s membership includes all 62 elected district attorneys in the state, as well as many assistant prosecutors. In many ways DAASNY is like any other professional organization: It holds trainings, hosts conferences, and issues a newsletter. But its enormous leverage in the state legislature makes it uncommonly powerful. DAASNY largely serves as a lobbying group — and a very effective one.

Since its inception, this has been part of the organization’s purpose. The first press piece about the association, published shortly after its formation in 1909, notes the group’s desire for legislative influence. “While the intentions of the legislators are of the best,” it reads, “they oftentimes enact laws … which embarrass the prosecuting attorneys of the state.”

Over 100 years later, that influence persists. In January, DAASNY sounded optimistic about bail reform. “We understand that there is room for improvement in New York State’s bail statute,” said Oneida County District Attorney and current DAASNY President Scott McNamara after Cuomo’s speech. But, in the end, the organization released a statement concluding that the proposed bail legislation, as well as the other legislative initiatives, “go too far.” The statement insisted that supporters of criminal justice reform don’t understand “the realities of human behavior” and “how the criminal mind operates.” It also “strongly advised” against including the reform measures in the budget. It’s unsurprising, then, that legislative reform was unable to get off the ground.

This phenomenon is not New York-specific. Every state has an equivalent organization of prosecutors with strong policy perspectives, which often have enough sway to simply shut down criminal justice reform at the legislative level. The failure of bail reform in New York mirrors countless other legislative reform failures in many other states. As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just “enforce” the law; in fact, they help to make it.”

Across the country, DA associations are using that power to defeat a wide range of bipartisan reform efforts. Though the criminal justice system has come under increasing scrutiny, these organizations continue to successfully hinder legislative reform. When it comes to criminal justice, associations like DAASNY are largely responsible for the gulf between policy and public opinion.

The stories are endless. Take Alabama. Not much is bipartisan in Alabama anymore, but recent efforts to rehabilitate civil asset forfeiture managed to bridge the impossible gap between parties. Civil asset forfeiture allows law enforcement to seize and keep someone’s property if they allege it is related to a crime — even if that person is never convicted or even charged with anything. Police and prosecutors can take millions of dollars’ worth of cars, cash, real estate, and other property from hundreds of innocent people, and often profits from those seized assets are deposited directly into law enforcement coffers.

Late last year, the Southern Poverty Law Center and the Alabama Policy Institute, a conservative organization, both supported a strong asset forfeiture reform law. “API and SPLC don’t agree on 99 percent of stuff, but we do agree that we need to monitor civil asset forfeiture,” said Leigh Hixon, API’s senior director of policy relations.

In January, Republican State Senator Arthur Orr introduced the Alabama Forfeiture Accountability and Integrity Reform Act, or FAIR, which would have required a criminal conviction before the government could seize a person’s property. Both parties supported the legislation — but the Alabama District Attorneys Association (ADAA) and other law enforcement groups did not. The presidents of the ADAA and the Alabama Sheriffs Association wrote an op-ed espousing the value of civil asset forfeiture, declaring, “Law enforcement uses civil asset forfeiture only to go after criminals.”

A wealth of evidence, of course, says otherwise. Frank Ranelli owned a small computer repair shop in Birmingham. Almost eight years ago, 20 police officers, some with assault rifles, barged into his store and confiscated almost 130 computers that they suspected were illegally purchased. In the end, though, only one laptop was actually even in question — and that charge was dismissed after Ranelli proved that he had followed the law. But, as of October, Ranelli still hadn’t gotten any of the computers back.

The prosecutor and sheriff’s op-ed conveniently fails to mention stories like Ranelli’s. Instead, it was chock full of outlandish predictions, none of which were undergirded by evidence. They insisted that if law enforcement had to share the profits from seized property with other agencies, there’d be “fewer busts of drug and stolen property rings” since there won’t be incentives to seize the assets if law enforcement has to share the spoils. They also claimed that limiting asset forfeiture law would result in “more people going to prison for lesser crimes.”

This is how many prosecutor associations maintain their influence — by trading on paranoia and fear, and convincing voters and lawmakers alike that, without harsh criminal sanctions for even the most minor offenses, crime will run rampant and legislators who vote for reform will be at fault.

Statements like these are easily rebuttable, but in Alabama it didn’t matter. In the end, the only thing that mattered was that prosecutors and cops didn’t like the bill, and legislators weren’t “comfortable” passing the legislation without their validation. So, civil asset forfeiture reform, which had overwhelming bipartisan support, was dead in the water, replaced by a diluted bill that only requires the state to maintain data on seized assets.

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

In California, the District Attorneys Association is pushing legislation that would limit Prop 47 and Prop 57, two criminal justice ballot measures that passed with overwhelming voter support. Last year, the association successfully stalled bail reform legislation. Meanwhile, the Arizona Prosecuting Attorneys’ Advisory Council has pushed for harsher drug penalties while opposing forfeiture and bail reforms. Earlier this month, Nebraska lawmakers failed to pass a bill requiring more transparency around the use of jail informants, after the Nebraska County Attorneys Association fought against it. Similarly, after legislators introduced civil asset forfeiture reform legislation in March, the Minnesota County Attorneys Association and other law enforcement agencies immediately started pushing back. And, in November, the Indiana Prosecuting Attorneys Council delivered a “firm warning” to lawmakers opposing any marijuana legalization, including for medical use, and linking it to welfare dependency.

And then there’s Louisiana.

The Louisiana District Attorneys Association is one of the most powerful DA associations in the country. According to Pishko, “from 2012 to 2015, criminal-justice bills backed by the LDAA had an 85 percent rate of passage in the Louisiana Statehouse, while criminal-justice bills it opposed passed only 38 percent of the time.” Given prosecutorial power in the state, then, it should not surprising that Louisiana is the most carceral state in America, which is the most carceral country in the world.

Last year, Louisiana was poised to pass a series of major criminal justice reform laws — a mighty feat in a state that has historically demonstrated an unshakeable commitment to tough-on-crime policies. But the LDAA reared its head, releasing a public opposition report while pushing legislators to vote against it. In the end, some pieces of last year’s reform legislation still passed. But, as Pishko reported, as a result of the LDAA’s involvement, “many key provisions had been gutted.”

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

This year, the LDAA came back to deal a death blow to criminal justice reform in Louisiana. Prosecutors are pushing five new bills that many advocates consider a rollback of the reforms that did pass last year. The bills would allow judges to extend probation past the current limit, and would require that people in the criminal justice system “pay restitution” to the court and their victims, which could add up to hundreds of thousands of dollars. Those who can’t pay would end up back in prison.

Earlier this month, Baton Rouge Representative Denise Marcelle introduced legislation that would “require criminal grand juries to review all officer-involved shootings resulting in injury or death.” She decided to bring the bill after the Louisiana attorney general decided last month not to file charges against the cops that killed Alton Sterling, a Baton Rouge man who was shot in 2016.

But LDAA Executive Director Pete Adams was fiercely opposed, claiming that the bill was “unconstitutional.” Marcelle decided to shelve the legislation.

The way prosecutor associations wield their influence reveals an uncomfortable truth about the current makeup of the profession. Prosecutors are tasked with a sacred duty — the duty to seek justice. But their lobbying efforts often reflect priorities that simply are irreconcilable with justice as a paramount concern.

Time and time again, these organizations throw their weight behind legislation that reflect the tough-on-crime dogma that has long defined criminal justice policy in America. This in itself reflects a troubling misunderstanding of their role — prosecutors are supposed to do what is right, and sometimes what is right is what is lenient.

But that misunderstanding is exacerbated by another pattern — as these organizations lobby for increased sanctions for ordinary citizens, they also fight to limit oversight over law enforcement. In states across the country, prosecutors are supporting more punishment for low-level theft while simultaneously fighting any attempts to limit law enforcement’s ability to seize property without cause. They fight to increase substantive punishments while reducing procedural safeguards.

How can these be reconciled? Only one value connects these otherwise inconsistent priorities: victory. Overwhelmingly, prosecutors throw their weight behind legislation that makes winning easier, even when it pushes them further from justice.

Nowhere is this truer than in Florida, where the Florida Prosecuting Attorneys Association (FPAA) has maintained colossal impact for at least half a century. The organization has repeatedly fought to enact harsher legislation at the state level, and last year, its dedication to barbaric tough-on-crime law enforcement led the group to turn on their very own. When Orlando State’s Attorney Aramis Ayala, a member of the FPAA, announced her decision to refuse to seek the death penalty, the FPAA filed a brief against her, which, according to Pishko, said that “Ayala had violated the separation-of-powers doctrine by effectively setting her own policy.” In a conversation with The Nation, Glenn Hess, another Florida prosecutor, justified the decision to file a brief against Ayala. “At the FPAA, our job as prosecutors is not to make law,” Hess said. “It is to take the law the legislature makes and enforce [it] in the state.”

The separation of powers is supposed to be sacrosanct, a way to ensure balance and prevent the always looming threat of authoritarianism, but the association’s appeal to these values is hypocritical.

Prosecutors are supposed to be squarely within the executive realm — tasked with enforcing the law, not making or interpreting it. As a rule, prosecutors have executed the enforcement mandate fanatically. Yet, Hess’s implication that the prosecutorial role is so narrow is misleading. Prosecutorial power has grown beyond the limits of mere enforcement. In fact, over the past forty years it has ballooned so drastically that prosecutors’ influence has seeped into the other two branches, as well.

The judicial branch is meant to be a relatively neutral force that protects the individual defendant from the power of the state. But, in a criminal system that handles most cases by plea deal, judges have less oversight over the criminal process than ever before, giving prosecutors a leash so long it is functionally non-existent. The presence of a judge has been replaced by the whims of a prosecutor.

This is why the legislative influence of DA Associations is so concerning. It gives prosecutors a stronghold over not only executive and judicial power, but legislative power, as well. More than any other position, prosecutors threaten the traditional balance of powers within the criminal justice system. Ultimately, this more than anything else has shifted tough-on-crime from hypothesis to axiom.

The presence of a judge has been replaced by the whims of a prosecutor.

Last month, Maricopa County Attorney Bill Montgomery was asked about the outsize influence of prosecutors on criminal justice legislation in Arizona. Like Hess, he responded by asserting that they aren’t lawmakers. “Prosecutors don’t have a vote at the Legislature,” he said. “We don’t sit on committees. We don’t sponsor bills. We don’t get to vote on the floor.” This, of course, is technically true. But in many—if not all—state legislatures, they have leverage over those that do.

This level of power is close to impossible to rein in, and DA associations serve as its primary guardian.

Last month, Pishko wrote for this publication about two bills that would implement prosecutorial oversight for elected DAs in Louisiana. “The legislation is intended to fill a gaping void that is especially noticeable in Louisiana,” she wrote. “There are limited ways in which prosecutors can be held accountable.”

Perhaps predictably, this proposal was unpopular with the LDAA. Neither bill made it out of committee.