By Zoë Robinson and Stephen Rushin. Full Text.
The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby sometimes operates without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that can institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the periphery of contemporary scholarly conversations about the democratization and design of criminal justice institutions.
This Article describes and evaluates the influence of the law enforcement lobby on criminal justice policy. It argues that the law enforcement lobby raises unique problems that extend beyond traditional lobbying concerns, including the ability to influence life and liberty, the power to perpetuate racial subordination, and a pervasive power over the operation of democratic institutions.
Drawing on the growing calls for democratization and power-shifting in the criminal justice system, this Article offers a range of recommendations to curtail the strength of the law enforcement lobby. First, the Article argues for reforms that “level up” of the power of competing interests that can counter the power of the law enforcement lobby in criminal justice policymaking. In doing so, the Article focuses specifically on reforms that imbed contestation in policymaking by communities most impacted by the criminal justice system. Second, the Article concurrently proposes mechanisms to “level down” the power of the law enforcement lobby, including realistic restrictions on the lobbying capacity of law enforcement interest groups that draws on First Amendment Speech Clause doctrine that permits restriction of public employee speech. Taken together, these reforms could facilitate broader transformation of the American criminal justice system.