The Prosecutor Lobby

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.