Georgia Courts to Consider Legislative Oversight of Prosecutorial Discretion — Again

Jordan Phillips is a current legal fellow with Public Rights Project, which represents the plaintiff district attorneys in Sherry Boston v. Prosecuting Attorneys’ Qualifications Commission along with Atlanta-based firms Washington, Dreyer, and Associates, and Bruce P. Brown Law.

Prosecutors have a duty to seek justice, not merely to convict. In Georgia, as in many states, district attorneys are elected by a local community and entrusted to exercise broad discretion in decisions about whom to prosecute, what charges to bring, and which sentences to seek. This discretion is constitutionally endowed and essential to their role in promoting equitable, efficient, and just criminal processes within their communities. Prosecutorial independence ensures an important separation between politics and the criminal legal system, which is necessary to advance public safety, promote justice, and protect local democracy.

My organization, Public Rights Project, is now in court to protect this independence against a newly enacted Georgia law that seeks to expand the role of the legislative branch in overseeing the speech and discretionary decisions of elected district attorneys.

Last year, Georgia enacted Senate Bill 92 establishing the Prosecuting Attorneys’ Qualifications Commission to oversee elected prosecutors. As a result of this legislation, the commission had new-found authority to discipline and remove prosecutors for decisions about which cases to bring and how to pursue them, and even for prosecutors’ speech about the job. What’s more, a prosecutor removed by the commission was disqualified from running again for 10 years.

Amid a lawsuit we filed in August 2023 on behalf of a bipartisan group of prosecutors — Dekalb County District Attorney Sherry Boston, Towaliga District Attorney Jonathan Adams, Augusta District Attorney, and Cobb District Attorney Flynn Broady, Jr. — the Georgia Supreme Court effectively halted the commission last year. The 2023 law required that the commission’s procedural rules and standards of conduct could take effect only upon review and adoption by the Georgia Supreme Court. However, the court declined to take any action on the proposed standards of conduct and rules, expressing “grave doubts” that adopting standards and rules for the commission would be within its constitutional power.

The commission has now been reanimated with the passage earlier this year of Senate Bill 332, which eliminates the requirement that the state supreme court approve the commission’s standards of conduct and rules. Freed from the need for court approval, the commission has begun accepting complaints for investigation.

On April 16, district attorneys again sued to prevent the commission from disciplining or removing prosecutors. In Sherry Boston v. Prosecuting Attorneys’ Qualifications Commission, Georgia courts must grapple with the question: Does the legislative branch have the authority to interfere with district attorneys’ exercise of prosecutorial discretion without violating, among other things, the separation of powers principles enshrined in Georgia’s constitution?

This is a question of deep constitutional significance, and not just in Georgia. The separation of powers doctrine places limits on the legislative branch’s authority to investigate prosecutors. The legislature cannot, under the guise of an investigation, usurp the power of another branch of government.

Elected district attorneys are not merely prosecutors. They are constitutional officers. In a Georgia criminal prosecution, the entire proceeding — from the time the case is laid before the district attorney until the rendition of the verdict — is under the direction, supervision, and control of that officer. Because discretion is a structural element of a prosecutor’s job, any attempt to override or control the prosecutor’s exercise of her inherent powers constitutes impermissible interference with the state’s right to prosecute.

Also at issue in the litigation is the commission’s ability to base disciplinary action on a district attorney’s stated policies, “written or otherwise,” which demonstrate that the district attorney “categorically refuses” to prosecute certain offenses. This provision inhibits district attorneys’ speech both in the exercise of their offices and on the campaign trail.

District attorneys commonly address resource limitations through the exercise of discretion guided by principles communicated to staff in their offices. Likewise, district attorneys must articulate their prosecutorial philosophies to constituents. The First Amendment requires that elected officials be given the widest latitude to express their views on issues of policy. The U.S. Court of Appeals for the 11th Circuit recently held in Warren v. DeSantis that the suspension of District Attorney Andrew Warren by Florida Gov. Ron DeSantis for advocacy, signed statements, and political affiliation was a violation of the First Amendment. A concurring opinion underscored that protection of elected officials’ ability to express political opinions “cut[s] to the core of our representative democracy.”

The Georgia statute undermines core values of self-governance by limiting prosecutors’ ability to articulate their approach to their office, and, as a result, weakening voters’ ability to understand an elected district attorney’s governing philosophies when choosing among candidates.

These issues have critical implications for prosecutors both in Georgia and nationwide. Several state legislatures are working to statutorily limit district attorneys’ discretion or otherwise punish them for certain uses of discretionary authority, like declining to prosecute abortion or low-level marijuana possessions. Pending cases across multiple states have sought to remove district attorneys for progressive approaches and discretionary acts, including in Texas, where Travis County District Attorney José Garza has been sued under a state law allowing removal of district attorneys for “official misconduct” in response to his policies on police lethal use-of-force indictments and drug possession cases. Litigation against these types of removals has developed, including a lawsuit in Florida challenging DeSantis’s removal of state prosecutor Monique Worrell for her charging and sentencing decisions.

State constitutional protections for district attorneys’ charging decisions and speech will be central to these battles. Boston v. Prosecuting Attorneys’ Qualifications Commission presents Georgia courts with an opportunity to protect core aims of both the state and federal constitutions.

Jordan Phillips serves as a 2023–2024 legal fellow for Public Rights Project, a non-profit organization that partners with government leaders and local elected officials to protect and expand civil rights. Her current work focuses on preemption and state abuses of power.