District attorneys refuse to prosecute some GOP-led laws
NASHVILLE, TENN. >> W hen 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. Tampa’s chief prosecutor 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 politics is also at play here. These lawyers live in deep blue 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. Ultimately, the limit on this is popularity.”
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.
Last October, more than 70 prosecutors from blue districts around the country publicized that they won’t bring charges under increasingly stringent laws that states have passed against abortion because they “should not and will not criminalize healthcare decisions,” even if the landmark abortion rights case Roe v. Wade is eroded or overturned.
And in June, more than 70 elected prosecutors and law enforcement leaders signed a similar letter pledging not to charge doctors or parents who could face criminal penalties under state laws barring certain medical treatments for transgender youth.
“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 eightyear 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.”