Republican-controlled state governments have opened a new front in their decade-long campaign to exercise greater influence over decisions – and decision makers – in Democratic-run towns and counties.
From Florida and Mississippi to Georgia, Texas, and Missouri, a slew of Republican states is taking bold new moves to grab control of local prosecutors, police policy, or both. These range from Georgia legislation that would create a new statewide commission to discipline or remove local prosecutors, to a Texas bill that would allow the state to take control of prosecuting election fraud cases, to moves by Florida Republican Gov. Ron DeSantis and Missouri Republican Attorney General Andrew Bailey to remove elected Democratic county prosecutors from office, and to a Mississippi bill that would allow the state to take over policing in the capital city.
“If left unchecked, local governments in states with conservative legislatures whose political majority does not match their own may face commandeering on an unprecedented scale,” said Janai Nelson, president and director-counsel of the Legal Defense Fund, a leading civil rights organisation.
The rising efforts of red states to gain control of law enforcement in blue cities are fueled by the intersection of two major trends.
One is the rising proclivity of red states to override blue metro choices on a wide range of topics, including minimum wage and family leave laws, environmental regulations, mask restrictions during the COVID-19 pandemic, and even recycling rules for plastic bags. The other is the escalating political conflict over crime, which has resulted in a fierce reaction against the demands for criminal justice reform that emerged in the nationwide rallies following George Floyd’s murder in 2020.
“A lot of this criminal justice reform preemption is a direct response to the Black Lives Matter movement,” said Marissa Roy, legal team lead for Local Solutions Support Center, a nonprofit that opposes state preemption efforts across the board.
Much of the red state efforts to preempt local district attorneys have targeted the so-called “progressive prosecutors” who have been elected in many large cities in recent years. Nonetheless, there is an undeniable racial dimension to these clashes: In many cases, state-level Republicans elected primarily by White, non-urban voters want to gain power from or remove from office Black or Hispanic local officials elected predominantly by non-White urban and suburban voters.
“There’s a strong suggestion of discrimination because the majority of the prosecutors they’re going after are black women or [other] people of colour who don’t agree with a hard-core lock ’em up mindset,” said Gerald Griggs, a criminal defence attorney and Georgia NAACP president.
With so many forces convergent, all indications suggest that the conservative push to restrain liberal local prosecutors and impose greater control over policing in predominantly Democratic metropolitan cities is far from done. Moreover, former President Donald Trump has already stated that if he is re-elected, he will implement a series of harsh government regulations to combat what he refers to as “extreme left” and even “Marxist” prosecutors. Trump claimed earlier this month at CPAC, in a dark and rambling address, that if re-elected, he would ask the Justice Department to initiate civil rights investigations against progressive prosecutors “to make them pay for their unconstitutional race-based enforcement of the law.”
Republican governors and state legislators proposing these preemption plans say that they are necessary to tackle high crime rates in Democratic-controlled municipalities. “Action must be taken to ensure that district attorneys are held accountable for their actions and carry out their duties by enforcing the laws we have on the books,” Texas Republican state Sen. Tan Parker said earlier this year when introducing a bill that would allow the state attorney general to remove local prosecutors.
Nevertheless, the push is also being pushed by prosecutors in blue counties in red states who are refusing to enforce the wave of new socially conservative measures that have swept through those states since 2020, including abortion prohibitions and gender affirming surgery for minors. Andrew Warren, the elected Democratic state attorney in Hillsborough County, Florida, whom DeSantis ousted from office last year, had signalled that he would not enforce the governor’s 15-week abortion ban.
“This is a politically self-inflicted setback for progressive prosecutors,” said Thomas Hogan, a former federal prosecutor and elected Republican district attorney in Chester County outside Philadelphia who has emerged as a leading opponent of the liberal district attorneys. “Someone is going to pay attention when you… stand atop the tallest structure in your jurisdiction and yell at the legislators that you are not going to follow their law,” he continued. “You’re literally waving a red cape in front of a bull when you do anything like that.”
In the states, these conflicts have almost entirely been fought along partisan lines, with Republicans pushing for these legislation and Democrats opposing them. But, national Democrats may have confused their message opposing preemption of local criminal justice power by joining the recent Republican-led legislative campaign to reverse comprehensive criminal justice reform authorised by the Washington, DC, city council.
Despite the congressional vote addressed slightly different issues than the state battles, the choice by so many Democrats to support the override effort demonstrates how much public concern about safety and unrest is generating for tough-on-crime legislation. That message has been reinforced by the rejection of Mayor Lori Lightfoot in Chicago’s recent mayoral race, the recall of San Francisco’s reform-minded district attorney Chesa Boudin last year, and the election of Eric Adams in New York City on a crackdown platform.
The state’s moves to preempt local prosecutorial authority have directly followed the increased electoral success of so-called “progressive prosecutors” committed to lowering incarceration rates, confronting racial inequities in the criminal justice system, and prosecuting police misconduct more aggressively. The first “progressive prosecutors” were elected in the mid-2010s, following the racial justice protests in Ferguson, Missouri, but the movement really took off after the nationwide outrage over George Floyd’s death in 2020.
According to Nicholas Turner, president of the Vera Institute of Justice, a group that supports criminal justice reform, there are currently between 50-60 prosecutors considered part of the movement, including in major jurisdictions such as Manhattan, Brooklyn, Los Angeles, Chicago, and Philadelphia, with jurisdiction over populations totaling about one-fifth of the US total. While San Francisco recalled Boudin last year, Turner pointed out that nearly all progressive district attorneys who stood for reelection have won.
The Republican-controlled legislature’s campaign to preempt more local power over criminal justice enforcement began soon after these prosecutors were appointed. In 2019, the Republican-controlled Pennsylvania House passed legislation transferring jurisdiction for prosecuting some gun possession violations from Philadelphia’s leftist DA Larry Krasner to the state. According to a recent collection by the Local Solutions Support Center, Iowa, Tennessee, and Utah also passed laws in the 2021-2022 legislative session to restrain local prosecutors or make it easier to compel their dismissal. During the same two years, as towns faced increasing pressure from activists to shift financing from law enforcement to social services, Florida, Georgia, Texas, and Missouri enacted legislation prohibiting local governments from cutting their police budgets.
According to the LSSC’s 2017 preemption study, “after going unquestioned for centuries, prosecutorial discretion has only come under threat after local prosecutors began to utilise it to attack – rather than reinforce – systematic racism.”
Attempts to take over local authority of law enforcement decisions in Democratic-leaning towns and counties are on the rise in Republican states this year.
The Republican-controlled state House and Senate in Georgia have both passed legislation to create a new statewide commission to investigate, penalise, and remove local district attorneys. The bill, which has the strong support of Republican Gov. Brian Kemp, has raised eyebrows, particularly because it is moving forward while the elected Fulton County District Attorney Fani Willis is investigating Trump’s and Georgia GOP officials’ attempts to overturn the outcome of the 2020 election there.
The Texas legislature, which is controlled by Republicans, is considering seven distinct bills to overrule or ease the dismissal of local prosecutors. Last week, the state’s powerful and deeply conservative Republican Lt. Gov. Dan Patrick named a bill that would allow the state to remove any local prosecutor who “prohibits or materially limits the enforcement of any criminal offence” as one of his top priorities for the current legislative session. Another bill would give the state attorney general the authority to designate district attorneys from surrounding counties to prosecute cases of alleged election fraud if the local DA refuses to do so.