Prosecutors sue to strike down a new law that hamstrings their authority

By Jeff Amy
Associated Press

ATLANTA (AP) — Four district attorneys in Georgia are asking a judge to strike down a law creating a commission to discipline and remove state prosecutors, arguing it violates the U.S. and Georgia constitutions.

The attack on Georgia’s Prosecuting Attorneys Qualifications Commission, filed Wednesday in Fulton County Superior Court in Atlanta, comes after Republicans pushed through a law creating the panel earlier this year.
Republican Gov. Brian Kemp pledged when he signed the law that it would curb “far-left prosecutors” who are “making our communities less safe.”

Sherry Boston, the district attorney in the overwhelmingly Democratic Atlanta suburb of DeKalb County and the lead plaintiff challenging the law, called the issue “bigger than Georgia.”

“We are talking about prosecutorial discretion and prosecutorial independence, both of which have been solidly under assault the last few years,” Boston told The Associated Press.

Republicans nationwide are pushing back on a sea change in prosecution, after some progressive prosecutors have declined to prosecute crimes including marijuana possession and have sought to lessen long prison sentences. Kemp and other Georgia GOP candidates, like those nationwide, ran anti-crime campaigns in 2022, accusing Democrats of coddling criminals.

Carissa Hessick, a University of North Carolina law professor who directs the Prosecutors and Politics Project, said that especially where crime has risen, it’s been “incredibly convenient” for Republicans to oppose progressive prosecutors. Other efforts to rein in prosecutors have taken place in Tennessee, Missouri, Indiana, Pennsylvania and Florida.

“As the progressive prosecution movement gained national prominence, I think it was an easy target for folks on the right, especially once there was an uptick in certain crimes in certain cities,” Hessick said.

A spokesperson for Gov. Brian Kemp did not immediately respond to a request for comment.

The Georgia law raises fundamental questions about prosecutorial discretion — a bedrock of the American judicial system that says a prosecutor gets to decide what cases to try or reject, what charges to bring, and how heavy of a sentence to seek.

Besides Boston, district attorneys challenging Georgia’s law include Flynn Broady of suburban Cobb County, Jared Williams, whose circuit covers Augusta and neighboring Burke County, and Jonathan Adams, whose circuit covers Butts, Lamar and Monroe counties south of Atlanta. Adams is a Republican, the others are Democrats.

They say the law oversteps by requiring district attorneys to review every single case on its individual merits, and by barring district attorneys from making policies rejecting the prosecution of any whole category of crimes.
Their lawsuit contends that the duty to review every case violates the separation of powers in the Georgia Constitution, which places district attorneys in the state’s judicial branch. The lawsuit says considering every case will force prosecutors to waste time examining low-level offenses, draining limited resources from more serious prosecutions.

“This duty is practically unworkable, limiting district attorneys’ ability to define enforcement priorities and approaches and distracting from the prosecution of meritorious cases,” the lawsuit states.

The suit also says the ban on establishing “stated policies” against prosecuting some cases will force district attorneys to consider prosecuting crimes such as adultery, sodomy and fornication, which most prosecutors refuse to even consider trying. It could also require prosecutors to consider prosecution for possession of small amounts of marijuana, even though the Georgia Bureau of Investigation refuses to test for amounts of marijuana less than an ounce.

The plaintiffs also argue that the ban on stated policies conflicts with a state law allowing certain crimes to be resolved without a criminal conviction. That law requires a written policy on diversion.

But more importantly, the ban on stated policies creates a bias in favor of prosecution, said Josh Rosenthal of the Public Rights Project. That liberal-leaning legal group is bringing the lawsuit on behalf of the prosecutors.

Rosenthal said the law interferes with prosecutorial discretion “by basically creating a one-way preference for always saying yes, the answer is to prosecute or is to prosecute more, regardless of the severity, regardless of the seriousness, and saying that there is a potential for discipline for decisions not to prosecute everything to that extreme.”

The prosecutors also argue that the ban on stated policies violates federal and state constitutional free speech rights by dampening their ability to discuss their prosecutorial philosophy with voters.

That free-speech harm is taking place now, Rosenthal said, and makes the law ripe for challenge immediately, even before all the members of the commission have been appointed or it has set rules.

Efforts in some other states have run up against legal obstacles. A Tennessee law that let the state attorney general intervene in death penalty cases was struck down last month, with a judge finding it unconstitutionally limited the power of the locally elected district attorney.

But in Florida, the state Supreme Court said Andrew Warren waited too long to ask to be reinstated as state attorney in Tampa’s Hillsborough County, even after a federal judge found Gov. Ron DeSantis illegally targeted Warren because he’s a Democrat who publicly supported abortion and transgender rights.