In a recent development that has raised eyebrows and concerns among legal experts and civil rights advocates, Georgia Governor Brian Kemp has signed into law a controversial bill, SB 92. This law establishes a commission with the power to limit the independence of community-elected prosecutors or even remove them from office.
The law has been sharply criticized by Rachel Marshall, the executive director of the Institute for Innovation in Prosecution at John Jay College. Marshall argues that the law undermines the separation of powers and infringes on local communities’ rights to choose their prosecutors. She sees it as an attempt to silence reform-minded prosecutors and disempower the communities that elected them.
SB 92 is part of a growing national effort to constrain the independence of prosecutors, particularly those who are reform-minded. The law targets prosecutors who prioritize the safety of pregnant people by deciding not to pursue cases under Georgia’s abortion statute. Marshall warns that forcing prosecutors to file every possible case would clog courts with cases that don’t belong in the legal system and exacerbate existing backlogs.
The law is seen as particularly harmful to communities of color, who are already disproportionately affected by the criminal justice system. Marshall concludes by stating that the rights of local communities and locally elected prosecutors should not be forfeited and calls for a stop to these attacks on democracy and fairness in the legal system.
At the heart of this issue is the concept of prosecutorial discretion, a fundamental aspect of the U.S. criminal justice system and many other legal systems around the world. Prosecutorial discretion refers to the power granted to prosecutors to decide whether or not to bring criminal charges, which charges to file, and how to steer the case. Prosecutors have the authority to decide whether to charge a person with a crime, based on the evidence available, the severity of the offense, and the likelihood of securing a conviction. They have discretion over what specific charges to file.
Prosecutors often have the discretion to negotiate plea deals, which can involve reducing charges, recommending a lighter sentence, or dropping some charges in exchange for a guilty plea on other charges. They must decide how to allocate their limited resources most effectively, which can involve deciding which cases to prioritize and which might not be worth pursuing due to factors like weak evidence or low severity. Prosecutors can choose to divert certain defendants to rehabilitation or restorative justice programs instead of pursuing a traditional criminal case. Even after charges have been filed, prosecutors can decide to dismiss them, often due to factors like new evidence coming to light, or considerations about the best interests of justice.
While prosecutorial discretion is a powerful tool, it’s also subject to certain checks and balances. Decisions by prosecutors are generally reviewable by courts, and prosecutors themselves are accountable to the public and can be voted out of office if the public is dissatisfied with their performance.
The new law in Georgia, however, threatens to undermine this balance, giving rise to concerns about the future of democracy and justice in the state. As the nation watches, the fight to preserve prosecutorial discretion and, by extension, democracy in Georgia is shaping up to be a fight for the nation. Again.
Florida has a similar law where a state attorney was suspended for refusing to enforce certain laws and we can expect other red-leaning states to enact similar laws.