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. 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 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-its-kind 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.”
A Vermont state’s attorney isn’t prosecuting possession of addiction therapy drugs, including buprenorphine. Seattle’s county prosecutor stopped filing charges for small personal drug possession, and a prosecutor in Washtenaw County, Michigan, and multiple prosecutors in New York City have stopped charging prostitution crimes as long as it's consensual. In Philadelphia, before federal courts blocked the opening of overdose prevention sites, the district attorney said he would not charge people who open and run them.
In Florida, 13th Judicial Circuit State Attorney Andrew Warren, covering the Tampa area, called one new state law “an assault on our democracy.” It stiffens penalties for crimes committed during a riot or violent protest and was passed after protests in the wake of George Floyd's death. It's on hold by a federal judge.
But prosecutorial discretion can cut both ways — especially on COVID-19 mandates. In Pennsylvania, York County District Attorney Dave Sunday, a Republican, told police not to issue criminal citations related to Democratic Gov. Tom Wolf’s statewide schools masking order, saying his office would not prosecute violations.
Elsewhere in Tennessee, conservative district attorney Craig Northcott in Coffee County, about 65 miles southeast Nashville, has said gay people shouldn’t receive domestic violence protections, arguing that such laws are designed to protect the “sanctity of marriage.”
Republican lawmakers have aired plenty of grievances about Funk, though so far their efforts to rein him in have been unsuccessful. Rep. John Ragan, who sponsored the business bathroom signage law, asked the state attorney general for an opinion on whether Funk’s refusal to enforce the business bathroom law was grounds to remove him from office. Republican Attorney General Herbert Slatery's office declined to weigh in, citing ongoing lawsuits on the law.
And the governor has maligned him on social media: “A district attorney purposefully disregarding current, duly enacted laws by the legislature is a grave matter that threatens our justice system and has serious consequences,” he tweeted.
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