In a new escalation of the grassroots struggle between justice reformers and traditional law-and-order proponents, progressive prosecutors around the nation have balked at prosecuting some GOP-led laws.
Near-total abortion bans, voting restrictions, limits on certain protest activity, laws aimed at LGBTQIA+ people, and restrictions on mask requirements have been added by conservative legislators in many states, but rather than challenge their legality, progressive DAs are simply not enforcing them, the Associated Press reports.
The prosecutors argue they are acting in the interests of their constituents, noting that research and practice increasingly shows that reliance on incarceration for non-violent offenders is counterproductive and does not increase public safety.
But not everyone is convinced of the altruism of the new movement, the Associated Press reports, saying politics are at play since these lawyers live in “deep blue districts” — and many are looking for a seamless reelection.
“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.”
Additional Reading: Progressive Prosecutors ‘Undercut’ by State Legislators: Paper
When GOP lawmakers in Tennessee blocked a policy to ease up on low-level marijuana cases, Nashville’s progressive prosecutors responded by simply not charging anyone with the crime.
In Georgia, to openly disagree with voting restrictions, Gwinnett County prosecutors vowed not to punish anyone for the “crime of distributing food or water to voters in line,” the Associated Press found.
In Douglas County, Kansas, a district attorney promised not to enforce a new state law that makes collecting and returning absentee ballots for voters of nonpartisan groups.
These small acts of defiance against GOP-led laws still show where the progressive prosecutor values lie, advocates say, but others argue they’re breaking the laws that are imposed upon them, and they must comply.
The Associated Press notes how that’s not the case.
“Prosecutors wield wide discretion over whom to charge with crimes,” the Associated Press details, “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.”
But it’s not just progressive prosecutors that have the power to issue discretion, all prosecutors have that ability, and it can cut both ways — especially on pandemic-related mandates.
In Pennsylvania, York County GOP District Attorney Dave Sunday has ordered police not to issue criminal citations related to Democratic Governor Tom Wolf’s statewide school masking order. A letter from Sunday’s office outlined how they would not prosecute mask violations.
Also in Pennsylvania, Blair County District Attorney Peter J. Weeks said issuing criminal citations against those not wearing masks in a school setting is “not appropriate,” according to We Are Central PA.
Similarly, in Texas, Governor Greg Abbot says local district attorneys have the authority to enforce his ban on local mask mandates, but many DAs aren’t exercising their discretion, according to the Texas Tribune.
While these battles of discretion rage on, advocates believe it won’t stop until many of the elections are over in November.
Andrea Cipriano is a TCR staff writer.