State legislatures go after reform prosecutors

In January, the Local Solutions Support Center and the Public Rights Project, a nonprofit that advocates for civil rights and economic and environmental justice, released a report tallying bills introduced in legislative sessions between 2017 and 2022, reported The Intercept. The authors found that nearly 30 bills had been introduced in 16 states during that period.

“Although only five preemption laws have passed,” the report says, “this new trend is part of a larger movement by reactionary states to use preemption to thwart criminal justice reform and undermine the will of local constituents calling for this change.”

With at least nine additional bills have introduced this year, including one in a new state, Mississippi, totals rose to 37 bills in 17 states.

The federal system provides no legal protection for cities against state lawmakers who want to step in to stop a certain policy, leaving cities with progressive leanings at the mercy of conservative state officials.

In some cases, the power to recall an elected official serves a purpose — for instance, in North Carolina, which does not have a statute for recalling an elected official, an elected sheriff was indicted for attempted murder and refused to step down — but recalls can also be easily exploited for political purposes. In Florida, Republican Gov. Ron DeSantis removed an elected attorney, Andrew Warren, because he pledged not to prosecute women who sought abortions. This week, DeSantis moved to suspend another prosecutor over his handling of a criminal case.

Likewise, critics say that state legislatures are abusing their statutory authority by trying to rip power away from prosecutors.

Reformist prosecutors have come to office and undertaken policy changes like reducing or ending cash bail, declining to charge people in nonviolent drug possession cases, holding police accountable for misconduct, and addressing wrongful convictions. Conservative politicians, however, have painted these reformers as harbingers of lawlessness, blaming them for a spike in homicides — although that spike has also impacted areas with traditionally “tough-on-crime” prosecutors.

“This is clearly not a response to a failure of policy on the ground. This is a direct rebuke to voters saying what they want.”

The new rash of legislative efforts to strip prosecutors of their power has sometimes come before reforms are even enacted. The district attorney in Polk County, Iowa, has been on the job for eight weeks, and state lawmakers are already trying to give her powers to the attorney general.

“All of these changes seem to be in direct response to policy preferences before anything has even happened,” said John Pfaff, a scholar of criminal justice at Fordham University School of Law. “This is clearly not a response to a failure of policy on the ground. This is a direct rebuke to voters saying what they want.”

GOP lawmakers in Texas have introduced four bills that would prohibit prosecutors from declining to charge certain offenses or refusing to seek the death penalty in capital cases and would allow the attorney general to fine and seek removal of prosecutors who decline to pursue certain charges. One of the bills would prohibit elected prosecutors from adopting policies to limit criminal enforcement of laws related to voting and elections — laws that have become politicized following former President Donald Trump’s false claims of mass election fraud.

Another Texas bill would establish a council to monitor prosecutors and grant it the power to petition for prosecutors’ removal for “incompetency or misconduct.” The bills would apply to elected prosecutors across the state.

Georgia lawmakers have introduced two bills to take away power from prosecutors. One would make it easier to recall an elected prosecutor and another would prohibit prosecutors from using blanket policy guidelines, like declining to charge for drug possession or ending cash bail for nonviolent offenses. Another proposes an oversight commission for elected prosecutors appointed by the governor and grants the power to discipline, remove, and force elected prosecutors and solicitor generals to retire.

A bill in Iowa would give the attorney general power to prosecute any criminal charge without first receiving a request from the county attorney.

Mississippi is one place where conservative state-level officials are looking to rein in prosecutors from Democratic local officials, particularly in Hinds County, where majority-Black Jackson is located and Jody Owens holds the district attorney’s seat. One proposed bill would create a separate court system and police force for a district in Jackson, with prosecutors and public defenders appointed by the attorney general.

Jackson would become the only county in the state to not elect its own prosecutors and judges. The proposal has come under fire for giving white state officials the power to appoint officers and administer a separate judicial system for a heavily Black city. The bill passed the Mississippi State House last month largely along party lines.

Another bill in Missouri would allow the governor to appoint a special prosecutor to handle cases in any jurisdiction if the governor determines that “a threat to public safety and health” exists. The original version of the bill targeted the circuit attorney in St. Louis County, Kim Gardner, a reform-minded prosecutor who was elected in 2020 on promises to end cash bail and hold police accountable.

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