Guest Commentary: Efforts to Undermine Reform-Minded Prosecutors Pose a Threat to Democracy and Public Safety

By Sam McCann

If some lawmakers have their way, elected prosecutors who implement reforms will be answering to them, and not to voters.

The Georgia state legislature recently passed legislation designed to intimidate reform-minded prosecutors and curtail their discretion to enact necessary reforms. The bill, which is expected to be signed by Governor Brian Kemp, will create an oversight commission comprised of eight people appointed by state officials who would be able to discipline, or even remove, elected prosecutors.

The legislation in Georgia is part of a larger effort by “tough-on-crime” lawmakers to wrest power from reform-minded prosecutors nationwide. In Texas, Lieutenant Governor Dan Patrick and lawmakers in both chambers are pushing legislation that would prevent district attorneys from declining to prosecute certain charges or, in capital cases, declining to seek the death penalty. The bill, which passed the state senate earlier this month, would also allow the attorney general to fine or remove prosecutors who fail to comply. In Florida, Governor Ron DeSantis last year ousted Tampa-area prosecutor Andrew Warren after Warren said he would not prosecute people who sought abortions.

States are moving to undermine local democratic control of public safety in other ways, too. In Mississippi, lawmakers passed a bill that creates a new, unelected court system in the capital of Jackson, which is nearly 83 percent Black. The law expands the jurisdiction of the Capitol Police to the entire city and allows state officials, almost all of whom are white, to appoint district attorneys in the new court system. Critics say the legislation was motivated by racial and political divisions and limits the ability of Jackson’s voters to make local decisions about public safety priorities.

Since 2017, 17 states have tried to pass bills that undermine prosecutorial reforms designed to curb some of the injustices of the criminal legal system. Prosecutors in those states say the motivations are clear. Sherry Boston, the elected district attorney of Dekalb County, Georgia, calls it an effort to circumvent democracy.

“Whether it’s abortion, whether it’s creating laws around decisions that parents make about transgender children, whether it’s what bathrooms you use: lawmakers are writing laws that are not supported by the majority. They need people in office that are going to enforce those,” she said. “District attorneys have become, in some ways, the last line of defense. [Legislators] want to remove that line of defense so that they can push forward with things that are harmful to the community, that are unpopular and unsupported by the community.”

That last line of defense that Boston refers to is prosecutorial discretion, or the ability of elected prosecutors to decide how to use their office in the interest of their community. Prosecutors use this discretion to set office policy, to instruct staff on how to make decisions on their cases, and to ensure the office is operating in line with their vision. It means deciding what cases to charge, how to charge them, and when to use other tools, rather than prosecution. And because the vast majority of lead prosecutors are elected by their local communities, the election cycle is a feedback loop for local voters to approve or reject their prosecutor’s policies and approaches. That feedback forces prosecutors to assess what their communities want and allows voters the opportunity to elect leadership that aligns with their values.

As more reform-minded prosecutors are elected across the country on platforms of safety and justice, their policies increasingly reflect their local communities’ priorities and growing dissatisfaction with the “tough-on-crime” status quo. These prosecutors support and adopt policies that prevent crime before it happens, instead of just reacting after. For instance, a prosecutor may decide to decline to charge people for low-level drug offenses because they know that prosecuting these offenses does not make their community safer and in fact increases the likelihood the person will continue to interact with the criminal legal system. Or they could decide diversion programs are the best way to address the underlying drivers behind an arrest. Vera’s Motion for Justice initiative partners with prosecutors nationwide who make these kinds of decisions in the interest of public safety.

The bill in Georgia and the bills under consideration in other states undermine democracy by overriding the will of local communities. Instead of a local prosecutor being able to function as an elected official, the power would rest with the state oversight committee, controlled by unelected officials appointed by state officials, severing the connection between the will of local communities and their elected prosecutors. In fact, the bills could mean that prosecutors are removed from office precisely because they follow the will of their constituents.

“If I make a decision, and the vast majority of my community is unhappy with it, then I fully understand that [voters] might not put me back in this chair,” Boston said. “But to have to make a decision that perhaps my community is 100 percent in support of, but then a small group of five people not living in my community can think it’s the wrong choice, override my decision, [and take me out of office].… that’s not how we should be making decisions.”

The new legislation in Georgia also requires prosecutors to charge every case and limits their discretion to create policies that favor declination or diversion. This overly prescriptive approach undermines public safety by expending already limited resources—no matter how minor the case is—diverting attention away from the most serious cases. Prosecutors who are responding to local voters have a better understanding of community needs and make decisions tailored to them in a way that state oversight committees cannot. Prosecutorial discretion can also help address situations where laws do not align with social norms. For instance, Boston points out that in Georgia, adultery remains a crime, but not one that she, nor any other prosecutor in the state regardless of their political leanings, will likely ever prosecute.

Of course, Boston and others believe that these new laws are driven by legislators seeking to prosecute abortion, not adultery. This makes sense: the bills were introduced just months after Boston and other reform-minded prosecutors announced their commitment to not prosecute abortion cases after the Dobbs Supreme Court decision threatened reproductive freedom. Georgia, Texas, and other states that may limit prosecutorial discretion also criminalize abortion but have local prosecutors who have said they will not press charges under laws that restrict reproductive freedom.

The issue is compounded by the increased strength of the reform prosecutor movement, which saw its ranks grow following a number of electoral victories in 2022. That poses a problem for lawmakers who pass laws that are unpopular in many communities. Boston also says it’s impossible to ignore the racial politics around the proposed bills in Georgia. In 2022, the state nearly tripled the number of prosecutors of color it had previously. The legislation would take power away from those elected leaders, instead placing it in the hands of a white governor.

In the face of such dangerous legislation, lawmakers nationwide need to reject bills that would limit prosecutorial discretion. Failing to do so will undermine the democratic process and jeopardize public safety. And even if those laws pass, reform-minded prosecutors should continue to fulfill their obligation to their communities and their commitments to the electorate—even if that means challenging these dangerous bills in court.

Voters need to recognize these efforts for what they are: an attempt to seize control of the legal system from local communities and to keep policies that uphold mass incarceration in place. Communities can signal to lawmakers that their jobs are to uphold, not undermine, democracy.

Sam McCann is a Senior Writer with Vera Institute of Justice.  Originally published by Vera Institute of Justice.

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