ATLANTA – 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.”
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Sherry Boston, the district attorney in the overwhelmingly Democratic Atlanta suburb of DeKalb County and the lead plaintiff, 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.
Like GOP candidates nationwide, Kemp ran anti-crime campaigns in 2022, accusing Democrats of coddling criminals. They are pushing back after some progressive prosecutors have brought fewer drug possession cases and sought shorter prison sentences.
It's been “incredibly convenient” for Republicans to oppose progressive prosecutors, said University of North Carolina law professor Carissa Hessick, who directs the Prosecutors and Politics Project. Similar efforts 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.
The Georgia law raises fundamental questions about prosecutorial discretion. That bedrock of the American judicial system says a prosecutor decides what charges to bring and how heavy of a sentence to seek.
Chris Carr, Georgia's Republican attorney general, said he would defend the law.
“Unfortunately, some DAs have embraced the progressive movement across the nation of refusing to enforce the law. That is a dereliction of duty, and as a result, Georgia’s communities suffer,” Carr wrote on the X platform, formerly known as Twitter.
Besides Boston, district attorneys challenging Georgia’s law include Flynn Broady of suburban Atlanta's Cobb County, Jared Williams of Augusta and neighboring Burke County, and Jonathan Adams of 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. Instead, district attorneys argue they should be able to continue policies rejecting prosecution of whole categories of crimes.
They argue that the governor and the Legislature can't dictate prosecution rules, because the Georgia Constitution places district attorneys in the state’s judicial branch, making the law violate the constitutional separation of powers. The mandate to examine low-level offenses also distracts prosecutors from more serious crimes, they say.
“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 lawsuit says the state law will force district attorneys to consider crimes such as adultery, sodomy and fornication. Adams, for example, said that after the law took effect July 1, he revoked his policy requiring magistrates to reject adultery charges.
The law could also require prosecution for possessing small amounts of marijuana, even though the state crime lab refuses to test marijuana seizure less than one ounce (28 grams).
The liberal-leaning group backing the lawsuit says the GOP-backed law creates a bias in favor of prosecutions.
Josh Rosenthal of the Public Rights Project, says the threat of sanctions creates “a one-way preference for always saying yes, the answer is to prosecute or is to prosecute more, regardless of the severity” of a crime.
The plaintiffs also argue that the ban on written or oral policies could block them from sending offenders to diversion programs, which resolve cases without criminal convictions.
The commission to oversee prosecutors isn't operating yet. But the plaintiffs say the law is ripe for challenge in court now because it already violates free speech rights by blocking prosecutors' ability to discuss their prosecutorial philosophy with voters.
“This legislation violates the voters' choice,” Williams said. The people didn’t choose us to be robots with law degrees. They chose us to make the tough decisions that ultimately protect our communities."
Efforts to control prosecutors in some other states have hit legal obstacles. Last month, a judge struck down Tennessee law allowing the state attorney general to intervene in death penalty cases.
In Florida, a federal judge found Gov. Ron DeSantis illegally targeted Tampa-area prosecutor Andrew Warren because he’s a Democrat who publicly supported abortion and transgender rights. But the state Supreme Court said Andrew Warren waited too long to ask to be reinstated.