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Gov. Kemp signs bill that would hold 'rogue' district attorneys, solicitors-general accountable

The Georgia governor said the bill would hold prosecuting attorneys who allow "criminals to go free" responsible to a new state commission.

ATLANTA — Georgia Governor Brian Kemp signed a bill into law Friday that would hold attorneys who go "rogue" in the Peach State accountable. The bill would give a new, appointed commission the power to investigate district attorneys and solicitors-general, and even remove them from their elected offices. 

Gov. Kemp signed the bill into law Friday afternoon in Savannah, creating the Prosecuting Attorneys Qualifying Commission. 

"As hardworking law enforcement officers routinely put their lives on the line to investigate, confront and arrest criminal offenders, I won't stand idly by as they're met with resistance from rogue or incompetent prosecutors who refuse to uphold the law," Gov. Kemp said. 

The governor said the new commission, which will be comprised of eight appointees, is needed, for example, because of some prosecutors helping sex offenders, sex traffickers and other serious offenders get off scot-free. 

Atlanta attorney Darryl Cohen, a former assistant district attorney in Atlanta (Fulton County), said that while impeachment remains one way to remove elected officials from office--such as county district attorneys--this new law will provide an additional, more subjective way to do so, based not just on outright criminal conduct. 

"The language in the new law is not really specific," Cohen said. "It seems that it's full of generalities, giving this new commission a great deal of latitude to enforce or not to enforce. or to investigate what they feel is appropriate.... There may be a criminal case that a district attorney doesn't want to prosecute or there may be a case that the D.A. wants to prosecute that they shouldn't," he said. "So the commission looks at it and says to her or to him, you need to not do this, or you need to do this. And if it becomes egregious, they can remove this district attorney from office."

The bill allows district attorneys or solicitors-general to be removed based on willful misconduct, failure to carry out duties, conviction of a crime and more. 

As it is, Kemp said of local prosecutors he did not name, "they're giving dangerous criminals a get-out-of-jail-free card through their lack of professionalism and their misguided priorities." 

According to the Georgia Constitution, district attorneys are elected into their position by their local constituents. They hold a four-year term. 

Cohen added that even before Gov. Kemp signed the bill, if a district attorney committed a crime, they would still be prosecuted just like any other person.

He said the commission acts as "one more layer of supervision... this makes it just a little bit easier" than impeachment.

DeKalb County District Attorney Sherry Boston is one of several county prosecutors who have said, for example, that voters do not want them to enforce state anti-abortion laws.

Could that be grounds for removal by the governor’s new commission?

“There are a number of laws on the books that district attorneys have chosen not to prosecute--adultery, fornication,” to name two, Boston said. And, she said, prosecutors are elected by the people to make those choices; an appointed state commission shouldn't be doing it.

“We are intent on fighting what I view as an unconstitutional commission aimed at taking away power and authority invested in us by the voters," she said. "We should all be concerned, because the new law has an absolute chilling effect on prosecution--independence, and prosecutor discretion. And these are two, critical items that are inherently important for there to be a local, elected prosecutor making charging decisions, setting the sentencing decisions, setting priorities for how to make the community safe," without state control.

During legislative hearings at the State Capitol earlier this year, D.A.s like Herb Cranford of Coweta County spoke in favor of putting D.A.s under that kind of state oversight.

“I’m concerned about a state bureaucracy having the power to remove a D.A.," Cranford told the Senate Judiciary Committee in February. "I think, on balance, this is a thing that’s needed.”

Cranford said the bill the governor just signed into law does not require D.A.s to prosecute every case, just to review every case.

Boston said D.A.s review every case already.

"This new law sends a message that there are certain prosecutors that the state believes are not doing their jobs," Boston said, "and that is simply not the case. I can tell you there are 50, duly-elected district attorneys in Georgia, I know each and every one of them, and every single one of them, regardless of the party with which they're affiliated, is deeply invested in making sure their individual community is safe. So to target a group of them based on political affiliation should concern every voter in Georgia."

Fulton County D.A. Fani Willis has accused Republican lawmakers specifically of wanting to go after the increasing numbers of minority District Attorneys who have been elected in Georgia since 2020, numbering, now, 14, out of 50 D.A.s statewide.

“Those district attorneys now represent the majority of the constituents in the State of Georgia," Willis told the Senate Judiciary Committee in February. “This bill is dangerous, it is dangerous to undo the voters because you don’t like someone, and you don't like their policies, and you don't like what they do. If they do something that is illegal, you can certainly hold them responsible (under pre-existing, long-standing Georgia laws)."

One of the committee members, Sen. Bill Cowsert, (R) Clarke Co., told Willis she needed to read the legislation to see that it has nothing to do with racial politics. 

“For you to come in here and try to make this about racism, that this bill is directed at any district attorney or solicitor because of racism is absurd and it’s offensive and it’s a racist statement on its own. 

“Well, we’ll respectfully have to disagree,” Willis said.

"What this (bill) is addressing," Cowsert told Willis, "is willful misconduct in office. This bill has nothing to do with recalling anybody.... The bill will allow you to have prosecutorial discretion to decide whether to put that young man in a diversion program (instead of prosecuting him and putting him in prison). But you can't have a policy that you're going to ignore the laws that the State of Georgia passes, and that your oath of office requires you to enforce, it's ludicrous.”

"Senator Cowsert, I take my oath very seriously," Willis said, "I do not think there should be willful negation (of state laws), but while you're looking at that, why don't you ask prosecutors how many of them have prosecuted adultery, because that's a law on the books. So I take my oath very seriously, but I also have to make decisions every day about who to prosecute and who not to prosecute."

Willis said she prioritizes prosecutions based on the resources her office has, and based on her community's standards--just two of the factors she has to consider, which, she said, a state commission might not take into consideration when deciding whether to investigate and sanction a prosecutor.

"So let me tell you who I prosecute first. The violent offenders, the gang offenders, the people that hurt people sexually. So I take my oath very seriously. I look at each and every case."

Cowsert interrupted her: "Well, that's not what we're reading in the papers that you're prosecuting." 

"Excuse me?" Willis replied.

The Committee chair intervened and ended their interchange.

"There are checks and balances in place right now, as we speak, to make sure that prosecutors are held accountable when they commit criminal or ethical violations under the law," DeKalb D.A. Boston said. "This idea--this commission--is not addressing anything new, except for the fact that this commission is now aimed at holding prosecutors to a standard of what prosecution is supposed to look like by folks that aren't even prosecutors."

The new commission is scheduled to begin work in October, while opponents are considering a lawsuit against the state to try to overturn the law in the courts.

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