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May 8, 2023

Should every state have a dedicated commission to receive complaints about prosecutors?

The question in the title of this post was my first reaction to the news of a commission just created in Georgia.  This AP piece, headlined "Georgia enacts law letting panel punish, oust prosecutors," provides these details:

Gov. Brian Kemp signed a bill into law Friday creating a new commission empowered to discipline and remove wayward prosecutors, saying it will curb “far-left prosecutors” who are “making our communities less safe.”

Kemp made the remarks at the Chatham County Sheriff's Office in Savannah, where he signed the measure establishing the Prosecuting Attorneys Qualifications Commission, which will launch July 1 and start accepting complaints Oct. 1....

The efforts continue anti-crime campaigns that Republicans ran nationwide last year, accusing Democrats of coddling criminals and improperly refusing to prosecute whole categories of crimes, including marijuana possession.

Georgia Democrats strenuously opposed the measure, saying the Republican legislative majority was seeking another way to impose its will on Democratic voters at the local level....

Crucially, the Georgia law mandates that a prosecutor must consider every case for which probable cause exists and can’t exclude categories of cases from prosecution. Experts have said that considering every case individually is unrealistic, because prosecutors turn down many more cases than they charge. However, it’s unclear if the new law will change prosecutors’ behavior or just lead them to avoid talking publicly about charging decisions.

The eight-member commission will include six current or former prosecutors and two other lawyers. It will oversee DAs and solicitors general — elected prosecutors who handle lower-level crimes in some counties....

The law was born from frustrations involving a white Republican prosecutor in suburban Atlanta who was indicted for bribery related to sexual harassment claims. He lingered in office until he pleaded guilty to unprofessional conduct and resigned in 2022.

Some Democrats were interested in similar measures for a time because of Jackie Johnson, a coastal Georgia DA who was charged with hindering the police investigation into the 2020 killing of Ahmaud Arbery. Democratic interest cooled after voters ousted Johnson.

The rules could also target prosecutors who declared before Roe v. Wade was overturned in 2022 that they wouldn't prosecute abortion-related offenses. Seven current Georgia DAs fit that description.

Though the AP piece leans into the political dynamics driving some debates over prosecutorial behaviors, this official press release from Gov Kemp notes that the new Georgia Commission can and will be policing local prosecutors on various fronts:

Governor Brian P. Kemp, accompanied by First Lady Marty Kemp, members of the General Assembly, district attorneys and solicitors-general, and other local and state leaders, signed Senate Bill 92 today, establishing the Prosecuting Attorneys Qualifications Commission (PAQC). The PAQC will serve as a valuable oversight mechanism for district attorneys and solicitors-general across Georgia, ensuring these officials fulfill their constitutional and statutory duties....

The bill establishes the following grounds for the removal or involuntary retirement of a district attorney or solicitor-general from office:

  • Mental or physical incapacity that interferes with the performance of duties that is likely permanent;
  • Willful misconduct in office;
  • Willful and persistent failure to carry out statutory duties;
  • Conviction of a crime involving moral turpitude;
  • Conduct prejudicial to the administration of justice which brings the office into disrepute; or
  • Knowingly authorizing or permitting an assistant district attorney or assistant solicitor-general to commit any of the aforementioned acts.

To parrot this press release, I sincerely think it would be a great idea to have a "valuable oversight mechanism for district attorneys" in every state (and for federal prosecutors, too).  I have often heard from persons who sincerely believe they have witnessed a prosecutor engage in "willful misconduct" or "conduct prejudicial to the administration of justice which brings the office into disrepute"; so creating a central commission (comprised mostly of former and current prosecutors) to hear complaints about, and conduct any needed investigations of, the work of prosecutors makes a lot of sense to me. Of course, like many government entitles, if unduly politicized or problematically ideological, this commission could possibly do more harm than good.  But, given the general lack of transparency and accountability for prosecutorial actions and practices, I am inclined to be hopeful about this new PAQC.

May 8, 2023 at 02:25 PM | Permalink


Despite the politics underlying this new Georgia law, it has long been noted that criminal prosecutors are the most unchecked part of our Government, so this new law potentially addresses that problem.

Posted by: Jim Gormley | May 8, 2023 2:49:56 PM

oh that this too too solid act would resolve itself 'gainst the stale, flat, egregious impostures of federal prosecutors.

Posted by: Brenda Rossini | May 8, 2023 4:39:55 PM

Actually, I believe judges are the least checked actors in our government. They gladly and easily give themselves breaks that would not be afforded anyone else.

Posted by: Soronel Haetir | May 8, 2023 5:49:51 PM

a panel to discipline wayward prosecutors is great idea. The panel should investigate prosecutors who overcharge, who dissemble, who hide Brady material, and who intimidate witnesses.

Posted by: anon | May 9, 2023 9:27:00 AM

This is one in which the devil is in the details and in the practice. If this were actually used against offices that engage in misconduct in the cases in which they do file, that would be one thing. My hunch is that we are unlikely to see this type of commission move quickly against prosecutors with a history of Brady violations.

But the concept of locally-elected prosecutors is that they get to choose priorities that reflect the local community. This bill seems to be directed at prosecutors who decline to prosecute certain types of cases (marijuana, abortion) because that is what their voters want. And it seems likely that this type of authority will quickly devolve into partisan disagreements.

And, it is unlikely to succeed at the goals of getting successful prosecution of those types of cases. One of the considerations that lead to a decision not to prosecute certain types of cases is the experience that juries will not conviction on those charges. Defense attorneys know that the juries will nullify so they will not plead to these (often) lower-level offenses meaning that the prosecutor who folds to this pressure will be spending a lot of time in jury trials in which there is little or no chance of conviction on a relatively minor offense and will not have the time or resources to take a hard line on more violent offenses.

Posted by: tmm | May 9, 2023 11:31:24 AM

This panel was created to monitor and remove progressive prosecutors in Georgia, specifically in Athens-Clarke County. The GOP claims it's the party of less government yet it is creating a commission that meddles in local affairs. This commission could lead to negative consequences if it deems a prosecutor isn't doing their job in not prosecuting certain offenses. This will lead to higher caseloads and even more trials as previously stated on this page. A person accused of a low level offense (ex. misdemeanor) will go to trial if they know jury panels don't usually convict folks of certain offenses.

Posted by: Anon | May 10, 2023 12:36:37 AM

If the local prosecutor in some rural Georgia town were declining to enforce civil rights law on gun regulation, the comments here would have an entirely different slant. But they shouldn't. If we're actually going to have the rule of law rather than the rule of taste, laws should be roughly equally enforced throughout any given jurisdiction, whether the laws are gun laws or drug laws.

Posted by: Bill Otis | May 10, 2023 5:08:49 PM

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