Institute for Innovation in Prosecution Defends Prosecutorial Independence and Challenges the Legality of New Georgia Law, SB 92
By David M. Greenwald
Executive Editor
Atlanta, GA – On Tuesday, the Institute for Innovation in Prosecution at John Jay College (“IIP”) filed an amicus brief in Fulton County, Georgia, Superior Court in support of prosecutorial discretion and the rights of local prosecutors to implement approaches supported by their communities.
The IIP’s amicus brief was filed in support of a lawsuit by the Public Rights Project on behalf of four Georgia prosecutors who are challenging SB 92, a new law that establishes a commission with the power to remove locally-elected prosecutors for so-called abandonment of duties. Prosecutors who are removed by the commission cannot serve again 
for ten years.
The brief argues that prosecutors are endowed “with unique powers and broad discretion.” That is because, they argue, “the prosecutor’s primary duty is ‘not merely to convict,’ but ‘to seek justice within the bounds of the law.’”
To fulfill that duty, prosecutors are expected to “act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.”
Recently there has been a movement of elected prosecutors that have emphasized “new criminal justice approaches” and moved away from the strictly prosecution/punishment-based framework.
Against this backdrop, Governor Brian Kemp of Georgia signed SB 92.
The signers believe, “SB 92 will prevent prosecutors from making independent decisions based on their good faith assessments of how best to serve the interests of their communities.”
The law also violates “prosecutors’ First Amendment rights” and could “inhibit them from being transparent in their communications with the public, as well as hamper their ability to implement reforms that are responsive to the needs of their communities.”
The signers point out, “By allowing prosecutors to be removed based on disagreements with their approaches and decisions, the law will subvert the will of voters and penalize prosecutors for keeping their promises about how they would prioritize limited resources.”
According to the brief, “district attorneys must now review every case for which probable cause exists and make a charging decision based solely on the facts and circumstances of that individual case—a requirement that deprives prosecutors of the ability to consider non-case specific factors when making charging decisions, such as the particular enforcement needs of their community, whether their offices’ limited resources would be better deployed to investigating and prosecuting other types of crimes, or whether prosecution is even in the public interest at all.”
SB 92 also creates the Prosecuting Attorneys Qualifications Commission that is vested with broad powers to “discipline, remove, and cause involuntary retirement of appointed or elected district attorneys” who choose not to prosecute certain offenses based on a “state policy” or who “bring the office into disrepute.”
“SB 92 subverts the role of prosecutors, who have an obligation to use their vast discretion to advance justice for their communities—not to advance the preferences of state officials,” said Rachel Marshall, executive director of the IIP, who previously wrote a CNN op-ed on the harms of SB 92.
She added, “If allowed to stand, SB 92 will fundamentally alter the role of prosecutors in our legal system and hinder the ability of prosecutors to serve their local communities. Thanks to the invaluable pro bono work of Proskauer [Proskauer Rose LLP], the IIP is proud to stand alongside local prosecutors to defend prosecutorial discretion and to protect local democracy.”
The IIP, represented pro bono by Proskauer, filed its amicus brief in support of the prosecutors’ motion for an injunction to prevent the commission from acting.
