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