Abortion, Crime Spur New Red-State Laws Against Progressive DAs

Sherry Boston ousted a Democratic incumbent in the 2016 primary to clinch her first election as district attorney for DeKalb County, Ga., in the Atlanta metro area.

Boston didn’t run as a progressive—the label wasn’t common for prosecutors then—but believed in changing the system. Even before the US Supreme Court overturned Roe. v. Wade last summer, she had pledged not to prosecute abortion law violations.

So when Georgia Gov. Brian Kemp signed a GOP-backed law last week that gives a new state commission the power to discipline or remove local prosecutors, Boston recognized herself as a target.

“It’s clear to me and to many others that this movement to create oversight over district attorneys is meant to disenfranchise the voters in local communities,” Boston, the second Black woman elected to the post in a majority Black county, said in an interview. “It is taking away local control.”

Like similar debates in Texas, Mississippi, and other states, the clash in Georgia reflects a widening power struggle between Republican state lawmakers and elected Democratic local prosecutors. Building for years, it’s been turbocharged by concerns about criminal justice reform, progressive politics, urban crime, and the legal spotlight on hot-button issues like abortion and gender-affirming care.

Opponents of the new proposals are fighting back: Missouri Democrats last week blocked a vote on a bill giving the state more prosecutorial power in St. Louis. The ACLU of Texas is lobbying against bills this month, and county attorneys in Iowa criticized a law that says the state attorney general can prosecute crimes anywhere, even without their request.

“It’s an erosion of our prosecutorial discretion,” said Calhoun County Attorney Tina Meth Farrington, an elected Republican who heads the board of directors of the Iowa County Attorneys Association. “That gives the impression to us that they’re looking over our shoulders.”

Demonstrators in the Texas state Capitol this month protested proposed bans on gender-affirming care for young people.

Brenna Goth / Bloomberg Industry

Still, Republicans control the legislature and governorship in the seven states where proposals curtailing local prosecutors gained traction this year. The conflict in Missouri led St. Louis Circuit Attorney Kim Gardner, the first Black woman to hold the job, to announce her resignation last week. And former President Donald Trump, who has railed against his own prosecution by Manhattan District Attorney Alvin Bragg, has made investigating local district attorneys a plank in his 2024 presidential bid.

Policy teams at the America First Policy Institute—a think-tank led by Trump administration alums—are also working on recommendations to rein in progressive prosecutors “that could be implemented at the state level,” Marc Lotter, chief communications officer, said in an email.

A New Era of Openness

The vast majority of local prosecutors are elected unopposed, but progressive prosecutors—part of a movement supported by Democratic megadonors like George Soros—have emerged as “almost a national brand,” said Carissa Byrne Hessick, director of the Prosecutors and Politics Project at the University of North Carolina School of Law.

The movement gained speed in the last half-dozen years, with backers focused on a prosecutor’s power to decide who gets charged and how a case proceeds, as well as incarceration rates that disproportionately affect people of color and the indelible impact of entering the criminal justice system, even for low-level offenses.

Republicans have historically sought to use crime as an electoral wedge and claim the mantle as the law-and-order party.

But much of the recent GOP criticism against the progressives centers on their policies covering categories of crimes, including declining to charge offenses such as drug possession or prostitution. Dozens of local prosecutors have also signed onto statements opposing the criminalization of abortion and gender-affirming care.

“The prosecutors are being really open about what they’re doing,” Hessick said.

That openness, along with sometimes unverified claims about rising crime, has fueled the efforts to oust them. San Francisco voters last year recalled District Attorney Chesa Boudin, a former public defender, in a campaign focused on the liberal city’s rising street violence.

Pennsylvania Republican legislators impeached Philadelphia’s Larry Krasner, citing his prosecutorial decisions amid an increase in crime, though a state appeals court tossed their case.

In Florida, the 11th US Circuit Court of Appeals heard arguments last week over Gov. Ron DeSantis’ order suspending State Attorney Andrew Warren, a Tampa Democrat, for signing onto abortion and gender-affirming care statements.

Political Outrage

State legislation aims to go beyond individual prosecutors to change the balance of power and challenge decision-making, especially over prosecutorial discretion.

That’s the goal of the Georgia law. Boston, the DeKalb district attorney, cites abortion as a driving factor for its passage. It also comes in the backdrop of presidential politics: Fulton County District Attorney Fani Willis (D) has empaneled a grand jury to investigate Trump’s role in the 2020 election.

Georgia Sen. Randy Robertson (R), one of the sponsors of the oversight bill, cited local examples of district attorneys accused of mishandling their duties—including notable indictments. He also referenced district attorneys deciding who to prosecute based on their political leanings.

“In order to solve this problem, there needs to be oversight and I think this is the cleanest, fairest, most honest way to provide that oversight,” he said during a March legislative debate.

District attorneys have long declined to prosecute certain offenses—such as adultery, which is illegal in Georgia—without lawmakers taking action, Boston said. Their outrage now is political, not about public safety, she said.

“As a prosecutor, how you view and how you use your discretion is something you should be held accountable to by your community and your own voters, not by people that are sitting in a gold dome and that don’t live in your community,” Boston said.

She said she believes the issue is greater than one county or state, because such laws are “sending the message, which is ‘We want to pick and choose who you put behind bars, here is the playbook we want you to follow, and if you don’t follow that playbook then we want you out and we’ll find a way to take you out.’”

A Law Enforcement Divide

In Indiana, Marion County Prosecutor Ryan Mears (D)—whose jurisdiction includes Indianapolis—said he’s the motivation behind an unsuccessful bill to give a special prosecutor authority over a criminal law if a local official categorically refuses to enforce it. Mears announced in 2019 that he wouldn’t prosecute adults for certain low-level cannabis offenses.

State Sen. Aaron Freeman (R), who pushed the legislation, said he wanted to address a national schism between local law enforcement officers who confront crime on the front lines and prosecutors who don’t want to do their jobs.

“And if the solution is to allow a different prosecutor to enforce the laws, then that’s what we’re going to do,” Freeman said.

Jason Johnson, president of the Law Enforcement Legal Defense Fund, which supports police officers in court, echoed Freeman’s view about some prosecutors using “rhetoric you’d expect to hear more from a public defender.”

The group hasn’t commented on specific state bills but supports efforts to return prosecutors to their traditional role as enforcers as progressive policies increase a sense of lawlessness, he said. “There’s much less concern now of any negative consequence,” Johnson said.

Charles Stimson, senior legal fellow at the Heritage Foundation, contends that progressive prosecutors are abusing their authority by practicing “prosecutorial nullification,” though he also has concerns about legislation curtailing their authority. Efforts to “clip the wings” of prosecutors could have ripple effects as the makeup and priorities of legislatures and prosecutors change, said Stimson, author of a forthcoming book on “rogue” prosecutors.

“Are you going to be happy that that particular prosecutor doesn’t have the full panoply of tools in her toolbox as she should have as the prosecutor?” Stimson asked. “I think it could be subjected to abuse, either way.”

Eyes on Two States

Mississippi could bring the first significant legal test. The NAACP late last month filed suit in federal court, asserting the governor, state Supreme Court chief justice and other officials disenfranchised Jackson residents’ constitutional rights with a new law empowering the white attorney general to give two prosecuting attorneys authority over part of a city where about 83% of residents are Black.

The conflict could influence the state’s November elections, where district attorneys are on the ballot. Candidates include Jody Owens, the Democratic incumbent in Hinds County, which includes Jackson.

A second lawsuit in state court argues the appointment of judges to a new court for cases in an improvement district that includes the state Capitol violates the Mississippi Constitution.

Others are watching Texas, where Republican lawmakers are pressing bills to allow the removal of district attorneys.

The ACLU of Texas has opposed multiple legislative proposals this year and contends the state’s Court of Criminal Appeals has affirmed that county and district attorneys hold prosecution authority.

Still, the statehouse trend is gaining traction, and a successful Texas law could be a milestone in the debate, said Marissa Roy, legal team lead for the Local Solutions Support Center, a national group against the misuse of state preemption tracking the legislative efforts.

“When Texas passes something, it emboldens other states to, as well,” Roy said.

In Georgia, Boston said she plans to seek reelection in 2024. Meanwhile, she is watching to see how the new law plays out.

“I can’t even begin to know what impact this would have, if any, on my operations until I understand what rules they are going to be telling me that I’m now responsible to follow,” she said.