By: Krishtine Loaiza
Earlier this year, the Georgia House of Representatives proposed two bills: House Bill 229 and 231.[1] These bills would create an oversight commission for prosecutors, lower the required voter recall for elected prosecutors, and sanction prosecutors for choosing not to pursue certain cases.[2] This type of bill was introduced once before and failed to pass.[3] Yet, with Georgia’s current indecisiveness on pressing criminal charges on former president Trump and Governor Kemp’s critiques and insistence on sanctions for prosecutors, the bill has reemerged.[4]
On its face, Bill 229 simply requires prosecutors to review a case where probable cause exists for prosecution and make a “decision available under law” based on the facts of each case.[5] It further states that failure to comply with the duties provided under the bill would be grounds for recall.[6] Although it looks uniform, in reality this Bill is aimed at prosecutors that refuse to prosecute for minor offenses.[7] By refusing to prosecute a minor offense, prosecutors would be in direct violation of their Oath of office and be subject to sanctions.[8] This bill would tie prosecutor’s hands—eliminating their ability to choose and forcing them to prosecute all cases that are dropped on their lap. Governor Kemp’s tough-on-crime campaign has urged legislators to punish “far-left prosecutors” that “make our communities less safe” when they decide not to prosecute minor, victimless offenses like minor marijuana possessions.[9] These outdated tough-on-crime policies will only lead to an increase in the mass incarceration of individuals for petty crimes. Georgia already has an issue with prison overcrowding, which misdemeanors charges and detention can be seen as contributing factors.[10] Given Georgia’s current incarceration rate of 968 per 100,000—approximately 304 more than the national average—prosecuting more cases is evidently not the solution.[11]
The voter requirement for recalling elected prosecutors would plummet. Instead of the previously required 30%, there would only need to be a 2% requirement now.[12] This would leave prosecutors livelihoods to a just handful of voters. Fear of sanctions could sway prosecutors to follow blindly or second guess their decisions simply to secure their positions. Additionally, the costs and time spent on prosecuting these minor offenses are immense.[13] Prosecutors know this and often will choose not to prosecute and instead seek alternatives for these individuals.[14] With the passing of Bills 229 and 231, this will no longer be an option.
Tying prosecutors’ hands by passing these bills would be unwise.[15] Given these are the individuals best suited to make discretionary calls on the cases before them, removing that power would have an adverse effect on the current justice system.
[1] Kelcey Caulder, Greater DA Oversight On Ga. GOP Radar In 2 New Bills, Law360 Pulse (Feb. 3, 2023), https://www.law360.com/articles/1572646/greater-da-oversight-on-ga-gop-radar-in-2-new-bills.
[2] Jeff Amy, Georgia Bills Aim at Prosecutors Who Refuse to Charge Crimes, The Daily Report (Feb. 3, 2023), https://www.law.com/dailyreportonline/2023/02/03/georgia-bills-aim-at-prosecutors-who-refuse-to-charge-crimes.
[3] Id.
[4] Id.
[5] H.B. 229, 2023 Leg., Reg. Sess. (Ga 2023).
[6] Id.
[7] Amy, supra note 2.
[8] Id.
[9] Id.
[10] Groundbreaking ACLU Report Offers Clear Solutions to Overcrowding at Fulton County Jail, S. Ctr. for Hum. Rts. (Oct. 16, 2022), https://www.schr.org/groundbreaking-aclu-report-offers-clear-solutions-to-overcrowding-at-fulton-county-jail.
[11] Emily Widra et al, States of Incarceration: The Global Context 2021, Prison Pol’y Initiative (Sept. 2021), https://www.prisonpolicy.org/global/2021.html.
[12] Caulder, supra note 1.
[13] Rahsaan Hall, In Boston, People Are Charged With Crimes That Waste Taxpayers’ Money and Prosecutors’ Time, ACLU (Mar. 22, 2019), https://www.aclu.org/news/smart-justice/boston-people-are-charged-crimes-waste-taxpayers-money-and.
[14] Id.
[15] Amy, supra note 2.
