Prosecutors and Their Legislatures, Legislatures and Their Prosecutors

Abstract

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology. Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation-of-powers story. Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep. And with respect to substantive criminal law, prosecutors have been enormously empowered. Prosecutors are not merely passive recipients of such power but indeed actively lobby for it — often quite successfully. But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets. Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable cash bail less frequently and providing defendants with more discovery than is required by law. In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

Keywords: Mandatory minimums, political economy, pathological politics, correctional free lunch, lobbying, sentencing law, bail, discovery, progressive prosecutors