Georgia bills aim at prosecutors who refuse to charge crimes

Georgia’s elected prosecutors could face disciplinary sanctions, removals or easier voter recalls for declining to bring charges for misdemeanors under two bills introduced Thursday.

Although one of the bills, which would set up an oversight commission, has failed before, Republicans have reintroduced it as Georgia Gov. Brian Kemp criticizes prosecutors for not doing enough to prosecute all crimes — which sets the stage for GOP majorities to take action in 2023.

Both House Bill 229 and House Bill 231 are aimed at district attorneys or county solicitors general who refuse to prosecute entire categories of crimes. For example, some Georgia prosecutors are declining to bring any charges for low-level marijuana possession.

It’s part of Kemp’s broader tough-on-crime push, along with Republican Lt. Gov. Burt Jones and others, although opponents say it’s unwise for lawmakers to tie a prosecutor’s hands.

Solicitors general prosecute misdemeanors and ordinance violations in lower courts, while district attorneys prosecute both felonies in superior court and misdemeanors.

House Bill 231, sponsored by Rep. Joseph Gullett, a Dallas Republican, would create a Prosecuting Attorneys Oversight Commission, similar to the existing Judicial Qualifications Commission, which can investigate misconduct by judges and recommend punishments including removal to the state Supreme Court.

"Voters across the state are begging legislators to address corrupt prosecutors," Gullett said in a statement Thursday, adding that his motives are not partisan. "While most district attorneys and solicitor generals are hard-working public servants seeking justice for victims, others have sullied and called into question the integrity of our criminal justice system through their unethical behavior."

Dick Donovan, once district attorney in Gullett’s Paulding County, pleaded guilty to one count of unprofessional conduct and resigned in 2022 after he was indicted for bribery related to sexual harassment claims.

Unlike the Judicial Qualifications Commission, the final decision on disciplining or removing a prosecutor would rest with the oversight commission. A prosecutor who objected to the commission’s decision could ask the state Supreme Court for review.

That bill says a district attorney can’t be disciplined or removed over their decision of whether to charge a crime, unless the decision was based on certain illegitimate factors including a prosecutor who "categorically refuses to prosecute any offense or offenses of which he or she is required by law to prosecute."

Similarly, House Bill 229, sponsored by Republican Rep. Houston Gaines of Athens, says a district attorney must "review every individual case for which probable cause for prosecution exists, and make a prosecutorial decision available under the law based on the facts and circumstances of each individual case," adding that refusing to do so would violate a district attorney’s oath of office.

Violating an oath of office is a crime in Georgia, punishable by one to five years in prison.

Those provisions clearly take aim at prosecutors refusing to prosecute marijuana possession misdemeanors. Among them are Deborah Gonzalez, district attorney for Athens-Clarke and Oconee counties.

Gonzalez has been a repeated target of criticism. Republican Attorney General Chris Carr singled her out in 2021, and Kemp in December tweeted that he looked forward to legislative action to address "Far-left local prosecutors" who "are failing their constituents and making our communities less safe."

Kemp of Athens linked to a story about a case that was dismissed because Gonzalez’s office failed to try it fast enough. At the time, the dismissal was blamed on scheduling error. A Gonzelez spokesperson did not return a phone call and email seeking comment late Thursday.

But rules could also target prosecutors who declared after Roe v. Wade was overturned in 2022 that they would not prosecute abortion-related offenses. Seven current district attorneys made such pledges: Gonzalez, Fulton County’s Fani Willis, DeKalb County’s Sherry Boston, Gwinnett County’s Patsy Austin-Gatson, Chatham County’s Shaleena Cook-Jones, Douglas County’s Dalia Racine, and Jared Williams in Richmond and Burke counties.

Gaines’ bill also would make district attorneys and solicitors general the easiest-to-recall elected officials in Georgia. Failing to make case-by-case prosecution decisions would be grounds for recall, and only 2% of registered voters in a county or judicial circuit would be required to force a recall election. Now, 30% of registered voters have to sign a recall petition for prosecutors and other officials not elected statewide.

"Communities across our state cannot afford to wait; voters deserve a remedy that will allow them to protect their counties, cities and neighborhoods," Gaines said in a statement.

Sen. Elena Parent, an Atlanta Democrat who sits on the Judiciary Committee, said people unhappy with district attorneys or solicitors general should seek to defeat them at the next election.

"It just seems like not a good idea to remove all of that discretion from a prosecutor’s office," she said.

She also said Republicans should quit micromanaging local elected officials. "No one elected them to be district attorney," Parent said.