RED STATES ATTACK PROSECUTORIAL DISCRETION: A THREAT TO OUR LEGAL SYSTEM?

Post 3–March 24, 2023

Fulton County, Georgia prosecutor Fani T. Willis has guts.  Elected in 2020 with over 70 percent of the vote, she represents over 1 million people in a county that includes Atlanta. Willis is also vigorously conducting a probe to determine whether former President Donald Trump and powerful Georgia officials violated election law by illegally attempting to change the results of the 2020 election. The evidence of tampering appears strong, but many factors enter the prosecutorial decision of whether and who to charge for a crime.  To make matters even more challenging for Willis, the Georgia legislature, several members of which have been targets in the investigation, just passed a new law that would allow a state tribunal to remove her from office for “willful and prejudicial misconduct.”  Gov. Kemp is expected to sign the measure when it gets to his desk. Will this have a chilling effect on the investigation or simply embolden Willis? If Trump is charged, would the new law be used to shut down the prosecution?  The stakes are high and results unpredictable.   

NOT AN ISOLATED EVENT

Several things, however, are clear. First, this is not an isolated incident; similar statutes are now under consideration in numerous states, and Republicans in Congress have mounted a vicious campaign targeting Manhattan D.A. Alvin Bragg, as an  indictment of Trump looms for his payoff of Stormy Daniels. 

Second, while some argue that the Georgia proposal might be used to stop a prosecution of the former president, these laws will have much broader implications, including affecting the ability of democratically elected prosecutors to exercise what is called “prosecutorial discretion,” an approach rooted in American jurisprudence since the founding of the nation.  

Our system of criminal justice generally depends on local prosecutors to exercise their independent judgment in deciding if, when, and how to enforce our laws and bring wrongdoers to justice. These new laws, which have been opposed by a vast majority of both prosecutors and defense lawyers across the country, represent a radical departure from American tradition with their threats to undermine local prosecutorial discretion and centralize criminal prosecutions.  

Third, these actions represent yet another power grab by states to counter the efforts of local officials to devise creative solutions to their unique problems.  This approach is known as  “state preemption,” and has increasingly been used by conservative legislatures and governors to undermine local decisions with which they disagree.  The Georgia action is simply part of a broader trend.

DOBBS AS A CATALYST 

The most highly-publicized of the recent attacks on prosecutorial discretion occurred in Florida, when Gov. Ron DeSantis removed democratically-elected Andrew Warren from office after the Tampa Bay prosecutor stated he would not prosecute women who violated Florida’s new 15-week ban on abortion.  Florida’s constitution contains an explicit “right to privacy” and Warren argued that he should not enforce an unconstitutional law; he is suing to be restored to his position.  The case remains in litigation, and DeSantis will undoubtedly use the action as he appeals to the right wing political base necessary to secure the Republican nomination for President. 

Other red states are attempting to control local prosecutors, especially in the aftermath of the Dobbs abortion case, when about 90 prosecuting attorneys from across the country indicated their resistance to prosecuting doctors and women.  The backlash hit when many legislatures reconvened in January. A Texas bill would allow the state's attorney general or a private individual to petition a court for removal of a district attorney who fails to prosecute abortion-related offenses and other “crimes of violence.”  Proposed legislation in Indiana would allow a legislatively appointed special prosecutor to intervene and prosecute when a local prosecutor declines to do so. An Iowa bill would give the attorney general the right to prosecute any criminal charge without first receiving a request from the county attorney. These bills are all designed to rein in or dismiss democratically elected prosecutors with whom the legislators disagree.

Since most states remain in session throughout the spring, it is difficult to predict how many legislatures will actually pass these or similar measures.  But we know that who controls a state legislature makes a difference; similar efforts in Virginia, where one house is controlled by Democrats and the other by Republicans, failed after numerous prosecutors and those involved in the criminal justice arena expressed strong opposition.

SPECIAL ROLE OF POPULARLY ELECTED PROSECUTORS

Entering a courthouse in a county seat or big city in America provides great insight into our system of criminal justice. If you are lucky, you can watch prosecutors at work, trying cases, helping sentence violent offenders, attempting to do justice.  These attorneys are male and female, young and old, and from different ethnic and racial backgrounds.  Some are dressed in three-piece suits, while others take on the form of the stereotypical rumpled “small town country lawyer.”  They may differ politically, but most profess an allegiance to a prosecutorial ethic to defend the law and treat people impartially. Many believe, as the U.S. Supreme Court asserted in Berger v. United States, 295 U.S. 78 (1935), that the prosecutor’s role is “not that it shall win a case, but that justice shall be done.”

More than 2300 jurisdictions in this nation democratically elect their prosecutors; 43 of these communities each have populations in excess of one million people. That is a lot of people choosing who they think best represents their values in addressing crime. Once elected, their “prosecutorial discretion” is on display every day, as they exercise their judgment in deciding who to charge for violations of the law, and what to recommend as penalties for conviction.

RECIPE FOR CONFLICT

In recent years, persons from more diverse backgrounds and greater sensitivity to the racial implications of our system of crime and punishment have been elected as public prosecutors on platforms that include social justice concerns in prosecution and sentencing. Sometimes referred to as “progressive prosecutors,” they have drawn the attention and ire of conservative state legislators who favor more “law and order” approaches.  The differences have been accentuated as politics between urban and rural areas of states have splintered.  In states such as Georgia and Florida, where rural legislators dominate, there is a greater tendency to adopt policies to constrain urban jurisdictions where Democrats control.  The Dobbs decision exacerbated this division, especially when urban prosecutors announced decisions that conservative state legislators felt were efforts to nullify state law. 

THE THREAT – AND A CAVEAT

Because of the political context in which they emerge, actions like those in Florida, Georgia and other red states appear as attempts to undermine the democratic process of electing our prosecutors and our system of American jurisprudence.  And there are serious questions about whether such measures violate the principle of the separation of powers, a bedrock of our constitutional system.  When a legislature either imposes too many restraints on the independence of prosecutors, or subjects them to control by a governmental branch other than the judiciary, it risks elevating political considerations over the administration of justice.

Do prosecutors make mistakes? Yes.  Can they abuse their discretion? Certainly. Social and political pressure can short circuit prosecutions against people with power and influence. Alternatively, we have witnessed more than a few overzealous prosecutions. Elections provide some accountability, but history tells us that when African-Americans were effectively prevented from exercising the right to vote, a “democratically elected” prosecutor could still use his “discretion” in a racially discriminatory fashion.  In those instances, elections did not provide a sufficient level of accountability.  Hence, some oversight of these offices is justified, especially in the absence of free and participatory elections. One recent effort to do so occurred in New York, where the state legislature passed, and Governor Cuomo signed, a law to create a Commission on Prosecutorial Conduct staffed by judges to review prosecutorial impropriety.  Despite its constitutional challenges, the legislature’s intent in passing the measure was to address unfair prosecutions.  The present legislation in red states, however, clearly has a much different purpose–to stop prosecutors who act contrary to the interests and views of state legislators with whom they differ. This will only undermine our American legal traditions, and make it more difficult for prosecutors who strive to do justice.

COMING SOON IN “FIGHTS OF OUR LIVES”:

STATES AS LABORATORIES FOR VOTING RIGHTS

STATE SUPREME COURTS AND HOW THOSE         ELECTIONS MATTER

David J. Toscano is a Charlottesville attorney and author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022. You can see his other writings at www.davidtoscano.com.