Editor’s note: On Wednesday, four DAs filed a legal challenge to block a Georgia Law that gives the state new powers to punish local prosecutors who don’t enforce tough-on-crime crackdowns. Filing the suit includes Sherry Boston, Jonathan Adams, Jared Williams and Flynn Broady.
Statement by the Attorneys
The Georgia Constitution provides for voters in each judicial circuit to elect a district attorney every four years. The district attorney has the duty “to represent the state in all criminal cases in the superior court of such district attorney’s circuit.”
The district attorney’s “duty is to seek justice, not merely to convict . . . because the prosecutor represents the sovereign and should exercise restraint in the discretionary exercise of governmental powers.” Every Georgia prosecutor must make decisions regarding how to best promote justice and public safety in their communities, amid scarce resources.
Discretionary decision-making is a daily feature of every prosecutor’s office and affects every single case in the system from charging to detention to sentencing and post-conviction relief.
In recent years, Plaintiffs and other prosecutors throughout Georgia have been elected to pursue a comprehensive approach to public safety. Responsive to the particular challenges and needs of their judicial circuits, these prosecutors employ pretrial diversion, accountability courts, and other tools to address real public safety problems, treat victims and the accused fairly and with dignity, and focus attention on those prosecutions that will have the greatest effect on public safety.
In 2023, the General Assembly passed, and Governor Kemp signed into law, Senate Bill 92 (“SB 92”), which established an unprecedented means of disciplining and removing elected prosecutors: the Prosecuting Attorneys Qualifications Commission (“PAQC”). The PAQC has authority to investigate, discipline, and remove a prosecutor, including on several novel grounds. The law authorizes the PAQC to discipline prosecutors for their decisions on whether and how to prosecute any potential case, without providing meaningful standards to evaluate those decisions.
SB 92 further provides that the PAQC may investigate a complaint based on a “stated policy, written or otherwise, which demonstrates that the district attorney or solicitor-general categorically refuses to prosecute any offense or offenses of which he or she is required by law to prosecute.”
The threat of discipline under SB 92 discourages prosecutors from exercising their discretion to address cases in the way that will best serve their communities.
By enabling the second-guessing of district attorneys’ exercise of prosecutorial discretion, SB 92 intrudes on their inherent powers as constitutional officers in Georgia, in violation of separation of powers principles. Further, the vague grounds for discipline fail to provide fair notice of the activities that could subject prosecutors to removal from office, in violation of the due-process protections of the Georgia and United States Constitutions. The vagueness of the SB 92 also constitutes an improper delegation of legislative authority to the PAQC.
Further, the explicit provision for a complaint based on a “stated policy” not to prosecute chills prosecutors from articulating their philosophies to their communities—but only if those approaches embrace the exercise of discretion. This violates prosecutors’ free-speech rights under the Georgia and United States Constitutions and undermines the ability of voters in their districts to make informed decisions at the ballot box.
SB 92 imposes a top-down approach to law enforcement, overriding local choices about how to keep communities safe. While that may be the preferred outcome for the General Assembly and Governor Kemp, the system established by SB 92 runs afoul of constraints established by the People of Georgia and embodied in the Georgia Constitution.
For all these reasons, SB 92 should be declared void and the PAQC should be enjoined from its enforcement.
Attorneys:
DeKalb County District Attorney Sherry Boston
Jonathan Adams, Butts, Lamar and Monroe counties
Cobb County District Attorney Flynn Broady
Augusta District Attorney Jared Williams.
I completely support this righteous lawsuit to strike down this unconstitutional Republican-backed law.