Republicans Try to Rein in ‘Rogue’ Progressive Prosecutors

By: - March 23, 2023 12:00 am

Republican lawmakers in Missouri initially wanted to target St. Louis Circuit Attorney Kimberly Gardner, shown in April 2022, with a bill that would allow the governor to appoint a special prosecutor to handle certain violent felonies. Backers later amended the legislation to apply to any elected prosecutor, fearing the narrower bill might be unconstitutional. T.L. Witt/Pool Missouri Lawyers Media via The Associated Press

Vowing to rein in so-called progressive prosecutors, Republican lawmakers in at least half a dozen states are pushing bills that would curb the discretion that local district attorneys have in deciding which crimes to prosecute — and, in some cases, make it easier to remove those elected officials from office.

GOP backers say the legislation is necessary to protect public safety in places where elected prosecutors have declined to charge people for certain categories of crime, such as drug possession. The prosecutors say that by using drug treatment, community service and other strategies to deal with low-level offenders, they can reduce mass incarceration and conserve resources for more serious crimes.

In recent years, such diversionary efforts have attracted support from across the political spectrum. But rising crime rates have fed a backlash: The GOP hopes its law-and-order push will resonate politically at a time when many Americans, especially city dwellers, feel unsafe. And they want to burnish their anti-abortion credentials by punishing prosecutors who have pledged not to enforce abortion bans.  

“It’s ridiculous that a step like this has become necessary,” Texas Republican state Rep. David Cook, whose bill would empower the state attorney general to levy financial penalties on prosecutors in his state, said in an interview with KTVT-TV, the CBS affiliate in Fort Worth. “But when you have district attorneys that are being defiant saying we’re not going to prosecute certain crimes, then you have to have a process in place that provides repercussions for making bad decisions.”

Some of the bills are motivated by more than broad concerns about public safety. In some cases, they appear to be targeted at specific prosecutors, especially those who were among the nearly 100 who signed a statement, released shortly after the U.S. Supreme Court overturned Roe v. Wade, pledging not to prosecute people “who seek, provide or support” abortions.

About two dozen of the prosecutors who signed the statement serve in states where legislation has been filed this year.

Carissa Byrne Hessick, a professor at the University of North Carolina School of Law and the director of the school’s Prosecutors and Politics Project, said that many Americans only recently became aware that prosecutors could choose which crimes to prosecute.

“Most Americans were under the impression that prosecutors served what you might call a ministerial function, like a county clerk — bring them the paperwork, and they file it for you,” she told Stateline. “With the rise of the progressive prosecutor movement, you had people talking about it more and running on platforms being clearer about how they were going to use their discretion.”

That discretion — and what if any limits the state should place on it — is at the heart of the debate over the GOP bills. The tradition of prosecutorial discretion is so well-established that even some conservative critics of progressive prosecutors are wary of weakening it.

“I’m a firm believer, as a former criminal defense lawyer and judge, that we should not be messing with the discretion we grant prosecutors because they, for the most part, exercise that discretion through their deputies every single day on every single case,” said Charles Stimson, a senior legal fellow at the Heritage Foundation, a conservative think tank.

But, Stimson added, when “they just declare, through in my opinion a usurpation of the legislative power, the ability to ignore entire categories of crime, that’s not prosecutorial discretion — that’s just prosecutorial blanket nullification.”

‘Rogue’ Prosecutors?

The bills all aim to place checks on prosecutors, but they would use different strategies to achieve that goal.

In Texas, Cook’s legislation would prohibit district or county attorneys from adopting a policy that “prohibits or materially limits the enforcement of any criminal offense.” The state attorney general would be empowered to punish prosecutors by levying civil penalties of up to ,500, and the governor could remove offenders from office.

The bill has the backing of Republican House Speaker Dade Phelan, who mentioned the issue during his speech at the opening of the legislative session. “If rogue district attorneys will not uphold the law, what progress are we really making?” he said. “It is time to rein them in.”

In Georgia, top state leaders, including Republican Gov. Brian Kemp, also have expressed support for similar legislation.

One Georgia bill would lower the number of signatures, from 30% of the registered voters in a district to 2%, required to file a petition to recall a prosecutor and stipulate that prosecutors must “review every individual case for which probable cause for prosecution exists.” A second bill would create a state oversight panel empowered to remove prosecutors for “willful misconduct in office” or “willful and persistent failure to perform his or her duties.”

“If a prosecutor is not doing his or her job, we need a system in state law to remove that individual from office,” Republican state Rep. Houston Gaines, a co-sponsor of both bills, told The Atlanta Journal-Constitution. “It is past time we take on rogue prosecutors in Georgia who are putting lives in danger every single day.”

In Missouri, an early version of legislation would have specifically targeted Kimberly Gardner, a progressive Black Democrat who was overwhelmingly reelected as St. Louis’ prosecutor in 2020.

Homicides have increased in St. Louis, and Gardner has faced bipartisan criticism for a large backlog of cases. She did not sign the statement pledging not to prosecute abortions, but she has been an outspoken proponent of diversion programs and addressing racial disparities in the justice system.

This week, Republican state Attorney General Andrew Bailey added new claims to a lawsuit he filed last month against Gardner. Among other charges, the amended lawsuit claims Gardner failed to prosecute cases; neglected to keep victims informed; did not review thousands of cases submitted by St. Louis police; created a “toxic office environment;” and did not train subordinates. Gardner contends the lawsuit is politically motivated. 

Despite their antipathy toward Gardner, the Republicans backing the bill amended it to apply to any elected prosecutor in Missouri, fearing the narrower bill might be unconstitutional. The version the Missouri House approved last month would allow the governor to appoint a special prosecutor to handle certain violent felonies in any jurisdiction after determining, based on crime data and the backlog of cases, that “a threat to public safety and health exists.”

Republican state Rep. Lane Roberts, the sponsor of the legislation, said he was reluctant to curb prosecutorial discretion, but that rising crime, especially in St. Louis, forced him to act.

“When you’re talking about things like prosecutorial discretion and prosecutorial independence, that’s treading on pretty sacred ground,” Roberts told The Missouri Independent. “So, the idea that we are somehow encroaching on what is a mainstay of the judicial system, we didn’t do it lightly.”

But James Woodall, a policy associate at the Southern Center for Human Rights, an Atlanta-based nonprofit law firm, argued that limiting prosecutors’ discretion would force them to waste time and money on cases that have nothing to do with public safety.

“The flexibility of a district attorney to prioritize their office’s resources, to prosecute some cases and not others, that is the prerogative of a DA,” Woodall told Stateline while on his way to the Georgia Capitol to testify against the legislation there.

Woodall noted that adultery, for example, is a crime under Georgia law, “and if a prosecutor does not have a standing order with the magistrate in that county or in that circuit, to say, ‘We’re not going to prosecute these cases, so do not even bother issuing warrants of arrest for people who commit the act of adultery,’ people would be getting arrested for cheating on their spouses.

“Why utilize public resources to prosecute those kinds of cases which do not have an impact on public safety at all? Under this law, technically a prosecutor that has that policy could be brought in for discipline.”

Existing Remedies

Woodall said Georgia law includes “ample ways” for prosecutors to be held accountable, including impeachment and prosecution for misconduct. Most important, he said, voters can replace a prosecutor in the next election — or petition for a recall vote even before then.

Rachel Marshall, director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, also argued that voters should determine how justice is administered in their communities. “Voters elected [progressive prosecutors] because they trust their vision and judgment in exercising that discretion,” she told Stateline. “They don’t need to have some overhead state official coming in and intervening and making decisions for them.”

Marshall knows firsthand the power of the ballot box: Before joining the institute, she was assistant district attorney and communications director for San Francisco District Attorney Chesa Boudin, who lost his job last year in a recall election.

She said the GOP state legislation has less to do with public safety than with politics and is designed to take down progressive prosecutors no matter what the crime statistics show.

“We shouldn’t be blaming prosecutors in isolation or talking about them as if criminal justice reform is somehow driving crime rates,” Marshall said. “That just simply isn’t the truth, and it isn’t supported by the evidence or the data.”

Hessick, the UNC law professor, also pointed to a disconnect between crime rates and the places where prosecutors are under fire.

“I can’t tell what’s in the hearts or minds of the legislators who are doing this, but I can tell you that the criticism of prosecutors predates the recent crime spike,” she said. “A lot of these blue cities — do they have crime? Sure. Has that crime gotten worse since 2019? Also, yes. Are there other places in the state where the crime rate is higher? Definitely yes, and those places are not drawing the criticism.”

As an example, Hessick pointed to Florida Republican Gov. Ron DeSantis’ 2022 dismissal of Hillsborough County State Attorney Andrew Warren. Warren signed the letter pledging not to prosecute abortions, one of the reasons DeSantis cited for removing him.

DeSantis appeared to have been “out looking for a foil, you might say, to make his political statement,” Hessick said, a contention supported by reporting in The New York Times.

Stimson, of the Heritage Foundation, does think progressive prosecutors are compromising public safety by refusing to prosecute certain crimes. But he doesn’t support the GOP legislation. He has constitutional concerns, and he thinks prosecutors need discretion to do their jobs. He also worries that such laws could be used someday by progressive state officials to rein in law-and-order prosecutors.

Like progressive opponents, he wonders whether GOP lawmakers are more interested in messaging than making concrete changes.

“Maybe it’s just a way to scare the bejesus out of these people and try to make them do their jobs. Maybe it’s a way of ginning up political support for their recall, knowing that these bills may ultimately fail,” he said.

“That’s not to say we don’t wish these people would just do their damn job, because of course we do,” he added. “Because it’s literally killing people, and ruining lives, because of their proud refusal to do their job.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Scott S. Greenberger
Scott S. Greenberger

Scott S. Greenberger is the executive editor of Stateline. He leads a team of journalists who report on state policy trends across the country.