Progressive prosecutors take a stand
But failing to enforce GOP-led laws could have repercussions
NASHVILLE, Tenn. — When Republican lawmakers in Tennessee blocked a policy to ease up on low-level marijuana cases, Nashville’s top prosecutor decided on a workaround: He just didn’t charge anyone with the crime.
Meanwhile, in Georgia, the Gwinnett County solicitor vowed not to punish anyone for the crime of distributing food or water to voters in line. The chief prosecutor in Tampa, Florida, says a law that allows law enforcement to detain protesters until their court date is “an assault on our democracy.” And a district attorney in Douglas County, Kansas, promised not to enforce a new state law that makes it harder for nonpartisan groups and neighbors and candidates to collect and return absentee ballots for voters.
Progressive prosecutors around the country are increasingly declaring they just won’t enforce some GOP-backed state laws, a strategy at work in response to some of the most controversial new changes in recent years — near-total abortion bans, voting restrictions, limits on certain protest activity, laws aimed at LGBTQ people, and restrictions on mask requirements. The elected law enforcement leaders say they’re just doing what is right as support has grown for changing a system they believe has relied too heavily on locking people up, particularly for low-level, nonviolent offenses.
But these lawyers live in deepblue districts where their decisions are popular with voters, and they have to be reelected.
“The real limit on this is political,” said William & Mary Law School professor Jeffrey Bellin. “These prosecutors have to stand for election almost everywhere in the country.”
Prosecutors wield wide discretion over whom to charge with crimes, and they can hold off based on factors that include the strength of an individual case, the severity of the offense and, sometimes, the prosecutor’s views on a law’s constitutionality.
“We know that our country has seen a past where some have sought to criminalize interracial marriage or individuals of different race who choose to sit at a lunch counter together, or ride a bus together, or use certain bathrooms and certain drinking fountains,” said Miriam Krinsky, executive director of Fair and Just Prosecution, which published the statements. “Change often starts at the ground and moves its way on up.”
In Nashville, Glenn Funk has made a habit of resisting GOP-passed laws, saying people in his city “really want a common sense approach to the criminal justice system that keeps us safe and does not incarcerate folks without good reason.” The Democrat’s stand comes as his 2022 Nashville reelection bid is approaching, in which he expects a challenge for another eight-year term.
Funk rebuffed Republican Gov. Bill Lee this summer, saying he would not prosecute teachers and school officials enforcing mask mandates in defiance of an executive order that let parents opt their students out of mask mandates.
Funk said he “will not prosecute school officials or teachers for keeping children safe.”
He also refused to enforce a 2020 law requiring medical professionals to inform women undergoing medication-induced abortions that the procedure could be reversed, which medical experts say is not backed by science. He deemed the law “unconstitutional” and said “criminal law must not be used by the State to exercise control over a woman’s body.”
Tennessee passed a first-of-itskind law this year that required a notice outside public bathrooms at businesses that effectively says transgender people could be inside. Funk made it known that he wouldn’t be enforcing that, either, saying his office “will not promote hate.”
Judges paused the policies about bathroom signs and abortion reversals statewide and blocked the school mask opt-outs in three big counties.
Funk said prosecutors need to use the “levers of power” to provide “a check and balance on overreaching” by other branches of government.
“It’s also incumbent, I think, upon public officials who disagree to stand up and say so,” Funk told The Associated Press. “Because if people who are elected officials just stay quiet in the face of unconstitutional laws being passed, in the face of a social debate that might actually be dehumanizing large sections of our population, then if nobody speaks up, then the impression is that there is a not another side to this argument, and that there really is no argument.”