The Carceral Force of Prosecutor Associations, Explained
The California District Attorneys Association (CDAA), a statewide advocacy group, misappropriated almost $3 million that was earmarked to support public interest advocacy, and instead used it for general expenses including lobbying, according to a recent audit. The state attorney general’s office is currently reviewing the audit, but whether the CDAA’s misappropriation of funds results in criminal charges or other state action, the findings are remarkable and especially newsworthy because the CDAA is an organization of prosecutors—the chief county law enforcement officers in the state, and those primarily responsible for the day-to-day functions of the state’s criminal legal system.
The CDAA’s misappropriation of funds is significant not only because of its members’ professional duties, but because of its considerable power and influence in shaping criminal justice policy and practices in California. In fact, the CDAA used some of the misappropriated money to fund its lobbying efforts against criminal justice reforms. District attorney associations across the country wield similar or even greater power. While prosecutors routinely deflect criticism by claiming that they merely enforce, and do not make, the law, their professional advocacy groups work the halls of state houses across the country, often advocating harsh, punitive criminal justice policies that enhance the power of prosecutors. Yet until recently, these organizations operated largely under the radar with very little public scrutiny or even attention from criminal justice activists.
What Are District Attorney Associations?
Prosecutors (also called district attorneys, state’s attorneys, commonwealth attorneys, and county attorneys, depending on the jurisdiction) are not only the primary law enforcement officers in the criminal legal system—they are the most powerful. They decide whether to bring criminal charges or offer plea bargains and what those charges or pleas should be. When one considers that defendants plead guilty in as many as 97 percent of all criminal cases, the charging and plea bargaining powers give prosecutors virtual control of the criminal legal system. Most district attorneys are elected officials who run for office every four years, and many run unopposed and serve for decades. The primary district attorney hires the assistant district attorneys who perform day-to-day duties and establishes the policies and practices of the office—including, for example, the charging and plea bargaining policies, discovery practices, whether and when young people will be charged as adults, whether and when capital charges will be brought, among many others. The power and discretion of prosecutors cannot be overstated.
There are statewide district attorney associations in almost all 50 states. Some are more active and organized than others, and they do not all have the same functions and goals. However, most have stated goals that include sharing ideas and resources, establishing practice standards, promoting efficiency, and providing education and training. Most district attorney associations are nonprofit organizations with dues-paying members (elected and assistant district attorneys). Other funding for the organizations come from a variety of sources, including court-ordered settlements and civil asset forfeitures.
In some states, there are parallel district attorney government agencies with similar functions and goals. For example, the primary function of the Arizona Prosecuting Attorneys’ Advisory Council (APAAC) is to “coordinate and provide training and education to prosecutors throughout Arizona.” The APAAC was established by the state legislature and has a smaller membership than most statewide associations (the state Attorney General, the elected county prosecutors, and a few other appointed members). It is funded by the state’s Criminal Justice Enhancement Fund, which is derived from surcharges on criminal and civil fines. But even as a state agency, APAAC has played an active role in shaping criminal justice policy to serve the interests of prosecutors and systems of mass incarceration, though it technically no longer engages in legislative lobbying.
The Power and Influence of District Attorney Associations
District attorney associations wield tremendous power and influence in the criminal legal system. They lobby state legislatures, file amicus briefs, and issue reports. Although these organizations are apolitical and nonpartisan in theory, they almost always take positions that oppose the growing national trend towards criminal justice reform. District attorney associations consistently support laws that increase punitive sentencing and make it easier to prosecute more cases while opposing those that seek to reduce incarceration rates. Some associations have openly attacked district attorneys who do not share their punitive approach to prosecution.
Many district attorney associations continue to successfully defeat criminal justice reform efforts in state legislatures across the country. The general counsel and lobbyist for the Florida Prosecuting Attorneys Association (FPAA), for example, lobbied for mandatory minimum sentences and against legislation that would allow juveniles to remain in juvenile court. The Louisiana District Attorneys Association (LDAA) successfully lobbied for removal of key provisions of a criminal justice reform bill, including a provision that would have eliminated life without parole for juveniles. LDAA’s executive director even argued against funding for the state’s public defender system—one of the most underfunded, overburdened systems in the country. The Illinois State’s Attorneys Association opposed legislation that would end cash bail, expand police training on use of force and prohibit chokeholds. Likewise, the CDAA has consistently opposed legislation that would reduce criminal penalties, and urged governor vetoes when that has failed. There are many other examples.
District attorney associations have filed lawsuits and amicus briefs to maintain harsh, punitive criminal laws and policies. The CDAA filed a lawsuit to prevent the implementation of Proposition 57—a law overwhelmingly approved by the electorate that enacts a number of progressive reforms, including reducing criminal penalties for certain drug and property crimes, and preventing prosecutors from directly charging juveniles as adults without court approval. The District Attorneys Association of the State of New York (DAASNY) successfully sued to strike down a law that would have created a state commission to investigate prosecutorial misconduct. In Florida, the FPAA filed a brief opposing a law that would provide treatment instead of incarceration for first-time drug offenders.
District attorney associations also deploy public campaigns involving the publication of press statements, reports, and blog posts to influence public opinion and media narratives around criminal justice. In 2018, APAAC, the Arizona prosecutors group, released the latest version of its report entitled “Prisoners of Arizona.” According to the report, Arizona was already “lead[ing] the way in criminal-justice reform,” despite having one of the highest imprisonment rates in the country. Justice reform advocates immediately identified the report as a tool to justify mass incarceration and highlighted its methodological and data flaws. It later emerged that then-Maricopa County Attorney Bill Montgomery paid a conservative Fox News columnist $34,500 in RICO (Racketeering Influenced and Corrupt Organizations Act) funds to research and write the report—public dollars earmarked for violence intervention, substance abuse prevention, and crime victim assistance.
Attacks on Reform-minded Prosecutors
District attorney associations have vehemently opposed the efforts of prosecutors elected to implement criminal justice reform policies, often taking positions contrary to their own stated principles. Shortly after she was elected, Aramis Ayala, former State’s Attorney for Orlando and Orange counties in Florida, announced that she would never seek the death penalty. Then-Governor Rick Scott promptly removed her from all death eligible cases in her jurisdiction and assigned them to a state’s attorney in another Florida county. When Ayala filed a lawsuit to retain her authority, the FPAA filed an amicus brief supporting the governor’s decision, even though Ayala was a dues-paying member of the organization. Ayala, an African American woman, was the victim of numerous racist attacks, including racist messages sent by mail and on social media. Someone even sent her a noose by mail. Nonetheless, the FPAA provided no support for Ayala and continued to oppose her reform efforts.
Cook County State’s Attorney Kim Foxx was elected in 2016 after promising to implement bold criminal justice policies and practices. When she dismissed charges against actor Jussie Smollett for allegedly filing a false police report, the Illinois Prosecutors Bar Association issued a statement condemning her actions, calling them “abnormal,” “highly unusual,” and an “affront” to the public. The National District Attorneys Association issued a similar statement, despite the fact that prosecutors dismiss cases against defendants every day, often behind closed doors and without providing reasons, in the ordinary exercise of their vast power and discretion. Like Ayala, Foxx, who is African American, has been the victim of vicious racist attacks throughout her tenure as state’s attorney. Neither the state nor the National District Attorney Association have come to her defense. Foxx was re-elected in 2020 by an overwhelming margin after implementing numerous reforms and promising to continue her reform agenda.
In Los Angeles, George Gascón defeated incumbent District Attorney Jackie Lacey in 2020 after promising to implement sweeping reforms to decrease the county’s incarceration rate. After his election, he announced numerous policy changes, including his decision to no longer seek sentencing enhancements or apply the state’s harsh “three strikes” law. Soon after the announcement, the Association of Deputy District Attorneys of Los Angeles County (ADDA), an organization comprised of the deputy district attorneys in Gascón’s office, filed a lawsuit to prevent him from implementing his new policies. The CDAA filed an amicus brief supporting the lawsuit.
Progressive Prosecutor Associations
In recent years, a number of challengers have run against incumbent chief prosecutors on platforms of progressive criminal justice policies. These challengers promised to use their power and discretion to reduce the incarceration rate, end the use of cash bail, correct wrongful convictions, stop charging juveniles as adults and establish other practices and policies to reform the criminal legal system.
Many of them won their elections, even in some conservative-leaning jurisdictions, demonstrating broad support for criminal justice reform. In addition to Aramis Ayala, Kim Foxx, and George Gascón, progressive prosecutors won elections in counties and cities across the country, including Larry Krasner in Philadelphia, Pennsylvania, Rachel Rollins in Suffolk County, Massachusetts, Satana Deberry in Durham, North Carolina, Parisa Tafti in Arlington County, Virginia, and Chesa Boudin in San Francisco, California, among many others. Almost all of these chief prosecutors have faced attacks from those who wish to maintain the status quo, including police unions, city councilmembers, judges, and the very district attorney associations established, in theory, to support them.
Newly-elected chief prosecutors often need the resources that district attorney associations purport to provide. They would benefit from meeting other chief prosecutors, sharing ideas, and participating in education and training programs. However, because these associations vehemently oppose the policies and practices these prosecutors seek to implement, a number of progressive prosecutors have either declined to join, or resigned from, their state district attorney associations.
Larry Krasner resigned from the Pennsylvania District Attorneys Association within a year of his election. In California, San Joaquin District Attorney Tori Salazar and Los Angeles District Attorney George Gascón similarly resigned from the CDAA. All cited their state district associations’ opposition to the criminal justice reforms they were duly elected to implement. “CDAA continues to be a member organization solely for those willing to toe the ‘tough on crime’ line,” Gascon wrote in his resignation letter. “For the rest of us, it is a place that fails to support us, our communities, or the pursuit of justice.”
This momentum has extended to prosecutorial candidates, some of whom have included a commitment to resign from the relevant prosecutor association as a key component of their campaigns. In the 2019 district attorney race in Queens, New York, candidates Tiffany Cabán and Rory Lancman said they would break with DAASNY; in Pennsylvania, Allegheny County District Attorney candidate Lisa Middleman also announced that if elected she would withdraw from the Pennsylvania District Attorneys Association. In the ongoing election for Manhattan District Attorney, several candidates have stated that as District Attorney they would resign from DAASNY.
In states where there is a critical mass of reform-driven prosecutors, new progressive prosecutor associations have begun to emerge. In Virginia, 11 of the state’s commonwealth’s attorneys, who represent over 40 percent of the state’s population, formed the Virginia Progressive Prosecutors for Justice (VPPJ). VPPJ proved to be a powerful counterweight to the Virginia Association of Commonwealth’s Attorney’s (VACA). VACA, the state’s traditional prosecutor association, consistently opposes all criminal justice reform efforts. In 2020, VPPJ successfully lobbied the state legislature in support of a series of criminal justice reform bills. In 2021, Virginia became the first southern state to abolish the death penalty and legalize marijuana.
A group of California prosecutors, including Boudin, Gascon, Salazar, and Contra Costa County District Attorney Diana Becton, formed the Prosecutors Alliance of California (PAC). According to its website, PAC is “committed to reforming our criminal justice system through smart, safe, modern solutions that advance not just public safety but community well-being” and will “gather and grow the voices of law enforcement that support transformation of our criminal legal system.”
In most states, there are not enough progressive chief prosecutors to form alternative district attorney associations. However, as more progressive prosecutors are elected across the country, more of these organizations will undoubtedly emerge.
District attorney associations have been a powerful force in the criminal legal system for decades, and remain so. They have used their power and influence to increase the power of prosecutors, maintain and grow the carceral state, and shut down reform efforts. But the appetite for criminal justice reform continues to grow throughout the country. There is no better evidence of the desire for change than the increasing number of elected progressive prosecutors. These prosecutors are running for office on platforms of reducing the use of incarceration—and they are winning.
Time will tell whether traditional district attorney associations will continue to pursue policies that are out of step with the growing trend of criminal justice reform. A recent statewide poll in California may be informative. The poll revealed that the majority of California voters have an unfavorable view of the CDAA and believe that it is more interested in protecting its own members than the public. Although this poll was undoubtedly influenced by the CDAA’s recent misappropriation of funds, it should serve as a teachable moment for traditional district attorney associations as they decide whether to continue their current practices or listen to the will of the people.
Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law, is an expert in criminal law and procedure with a specific focus on prosecutorial power and racism in the criminal justice system.
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