This is Bloomberg Law with June Brosso from Bloomberg Radio. Enough is enough. It's about being the first African American prosecutor in the city of Saint Louis. Running on a platform about bringing criminal justice reform, bringing equality to the criminal justice system, and being stopped at at all costs.
Kim Gardner was elected to be the first black prosecutor in the city of Saint Louis, Missouri, in twenty sixteen. She ran as a progressive, promising to reform the criminal justice system and review wrongful convictions, and was re elected by an overwhelming majority in twenty twenty. But this week Gardner resigned following threats from the Missouri state legislature to pass a bill stripping her office of power. The conflict in Missouri is just one part of the widening power
struggle between Republican state lawmakers and elected Democratic local prosecutors. Florida, Georgia, Iowa, and Mississippi have already passed laws curtailing local prosecutors, while bills are pending in Missouri and Texas. Joining me is Carissa burn Hessick, director of the Prosecutors and Politics Project at the University of North Carolina, School of Law tell us about this trend. If it's a trend of laws to oust local prosecutors.
Sure, so, I think when we look at the states that have introduced legislation to remove local prosecutors from office, I think that we should think about that legislation as being one type of legislation that we are seeing right now, and that the broader category of legislation that we're seeing is legislation to limit the powers of local prosecutors. Removal is one way to live with their power. It's probably
the most extreme way. But we've seen other legislation to do things like take certain cases away from local prosecutors if they won't prosecute them, or allow other offices to step in and prosecute particular cases that a local prosecutor is declining to bring. And then I think we've also seen legislation that's just saying, maybe this area shouldn't be
able to elect their prosecutor. The most high profile example of that is what we saw in Mississippi, where they're carving out some pieces of the city of Jackson's have not just an appointed prosecutor rather than elected prosecutor, but also appointed.
Judges and the NAACP has filed a suit against that law, which empowered the White Attorney General to give two prosecuting attorneys authority over part of the city of Jackson. We're about eighty three percent of the residents are black. You know. I first heard about this struggle between Republican state lawmakers and democratic local prosecutors in reference to prosecutors who refuse or said they would not let prosecute abortion law violations.
But is this broader? Is this about progressive prosecutors in general?
I think that's right. So we have prosecutors in office who are using some tools that all prosecutors have. Right, the power not to prosecute is a power that all prosecutors have, and they exercise it quite frequently, but they usually sort of the typical prosecutor exercises that power without really talking about it very much in the news, and certainly without saying I'm not going to prosecute this category
of cases, even if that's what they do. And I think that some people, maybe a lot of people don't really know that prosecutors have this power or that they exercise this power pretty often. And the prosecutors that have been running on platforms with criminal justice reform or running under the banner of progressive prosecution. They've gotten a lot of attention, and some of that attention has been negative.
And I think we've probably reached the point now politically where it's politically advantageous for some people to run against these progressive or reform prosecutors, to say that they disagree with what they're doing, to say that, you know, they're misusing their power, or they're causing spikes in crime, or you know, one of any number of arguments that what
they're doing is bad. And we see state official or officials that aren't the prosecutor running about this in campaigns and saying that what these particular prosecutors are doing is wrong. And I think that legislatures taking action introducing these sorts of bills, it's one piece of that, you know, sort of political backlash against these prosecutors.
Yeah, a lot of the lawmakers say, well, this is about public safety, but it seems like it's all about politics because Republicans control the legislature and and the governorship in the seven states where proposals curtailing local prosecutors gained some traction this year, and the aim seems to be to take away power from local prosecutors who are in strongly progressive or liberal democratic cities.
I mean it can be both, right, It can both be that these state officials are taking actions because they perceive these policies to be undermining public spacies. And they could also be taking these actions because it's politically advantageous for them to attack local officials who are of the opposite political party for them. I don't think we need to think of those two things as being mutually exclusive. I think they are related to each other, and I think both of them are probably true.
Doesn't this just disenfranchise the voters who elected these prosecutors for reasons that they campaigned on.
Yes, But I think that you can make that argument any time that you have one life layer of government disagreeing with the other layer of government. So like every time Congress passes the law telling the states that they have to do something, is that Congress disenfranchising the people in that state? Or do we just say sometimes Congress gets to act even if the people in one state wouldn't agree with it. It's the same thing. It's just
playing out on the state versus local level. Right, Local governments sometimes get to set their own policies about what to do, and sometimes the state gets to step in.
So in Georgia, which passed a law and the governor signed it, the Fulton County district attorney Fanny Willis claims it's a racist attack after voters elected fourteen non white district attorneys in Georgia in twenty twenty. Is that the only charge you've heard about racism? Or have you heard that charge in other instances as well?
Yeah, I mean, I certainly think that the issue of race is very visible in all of these actions, because, as you pointed out, the states where this legislation seems to be getting tractions are states where you have the state level government controlled by Republicans, and they are pushing back against the actions or the decisions and policies of democratic das that have been elected in the big cities. Not always the big cities, but folks of the Democratic
Party who's been elected. Now, it just so happens that Democratic candidates tend to do better oftentimes in areas that have high percentages of voters of color. So if you have Republican state officials pushing back against areas where they have elected Democratic officials, yeah, I mean, it's just demographically that is going to be probably a majority white states, displacing the decisions that were made by voters of color.
You've called this movement of getting progressive prosecutors almost a national brand. Explain what you mean by that.
So America's kind of complicated, and that we really just have two major political parties. Right, we have the Republicans and we have the Democrats. And that's fine if all you want to talk about is the presidential elections, and I would say the presidential election in November, right, the general election, because those are the two major choices that people will have in the ballot, and they're just choosing between Republicans and Democrats, and those are brands those political parties.
You know, voters, potential voters have impressions about what those two parties stand for. So even if they don't know that much about a particular candidate for national office, they can rely on their overall impressions of the Republican or the Democratic Party when they're voting for senator, or when they're voting for Congress, or when they're voting for the president.
Those national brands of Republican and Democrats don't work very well when we're talking about elections for local prosecutors, and they don't work very well for two reasons. First of all, some states these are non partisan offices, so you don't have a party label to rely on. So that's true in California and a handful of other states these are non partisan offices. Another reason that these national party brands don't work very well is a lot of times these
elections are decided in the primary. Like where I live in North Carolina. I live in a very blue part of the state. We just had a prosecutor election. No Republican ran in the general election. The election was fought in the Democratic primary between two Democrats. So the party label isn't helping people make decisions in these elections. The party labels also aren't helping because on the national level, crime isn't as big of an issue as other things
like abortion or gun rights, or taxes or spending programs. Right, national elections are about loss and loss of issues, and DA elections are about stuff that's much more specific. Right, how often are you going to use version? When are you going to ask for cash bail in a particular case, which crimes are you going to prioritize and which ones are you going to maybe not prosecute at all. The national political parties aren't associated with policies for these things
because they're too specific. So the progressive prosecutor movement it sort of filled this way. People could identify as reform prosecutors. I think some of them who did weren't even necessarily running as Democrats. But even in states like California, people were able to run on this national brand, right, this idea of being a progressive prosecutor, and that brand signaled
something to their voters. So the voters didn't have to like sit down and comb through election websites or like read lots and lots of news stories about debates between the candidates. They could rely on the label progressive prosecutor the same way that they rely on labels like Democrat or Republicans.
Has that sort of movement led to this backlash, you know, to stop so called woke prosecutors.
I think that the brand brought these issues to everyone's attention, and as the prosecutors started getting more attention, then they became an attractive target for, you know, sort of their political opponents. But I don't think that we can ignore the fact that it's not just that it was politically advantageous for you know, Republican lawmakers in Georgia or Mississippi
or elsewhere to introduce this legislation. I think they also probably didn't pay much attention to what local prosecutors were doing beforehand, and by making clear what their office was doing, these prosecutors provided an opening for people to say, no, you shouldn't do that. Like traditional prosecutors, they play things very close to the vest. They rarely tell people what
their policies are and how they make their decisions. I'm part of a research initiative at the University of North Carolina called the Prosecutors and Politics Projects, and we just conducted a survey of prosecutors in four different states, states where marijuana possession is still illegal, and we asked incumbent prosecutors, so fitting prosecutors about their policies, and we found that there were lots and lots of different policies ranging from
full enforcement, we enforce every single case that comes to the door, to we have a policy of prosecuting none of these cases, and then lots of stuff in between. We also asked them whether they had publicly announced what their policies were, and only twenty percent of the people who responded to our surveys said that they had publicly announced their policies. They had policies, they just weren't saying
what those policies were. So if you weren't saying what you do and how you use your power, it's pretty hard for people to criticize you. But if you tell people here's the policy we have and here are the decisions that we're making, it's very easy for people to disagree with you. Now, are there reasons that we should want these prosecutors to tell us what their policies are? Of course, it's an elected office. How are we supposed to know who to vote for if we don't know
what they're doing. But I think this backlash that we're seeing in the states is probably a huge reason why prosecutors don't say what they're doing. They don't want to open themselves up to criticism, and they don't want to open themselves up to the sort of legislative pushback and potential loss of power that we're seeing in some of these states.
Actually, in Manhattan, where I live, the current DA Alvin Bragg, there was a backlash when he first got into office and a memo was leaked where he said he wasn't going to prosecute certain crimes, and then he sort of took it back. But that's sort of an example of not wanting the public to know, but the public finding out anyway.
That's right. And I'll just add here, I think part of what's going on is sometimes a reform oriented prosecutor gets elected, but all of the people who are already working in that office don't necessarily agree with them, and that's a whole different set of problems.
Could these laws, some of these laws face hurdles. A New York court struck down a twenty eighteen commission that was supposed to investigate prosecutorial conduct. The laws are new, and I'm wondering if they're going to face challenges in the courts and perhaps not survive definitely.
And I'll say, though, this is where things start to get complicated, because even though I think that we are seeing a national brand of progressive prosecutors, and I think that we are seeing a trend across the country of conservative lawmakers pushing back against these prosecutors, it's all happening in the context of fifty different states. And it's not just that the state legislatures are adopting different types of legislation.
They're also adopting that legislation in systems that are governed by different state constitutions. So the litigation that you mentioned in New York about this sort of oversight board, it was struck down because in New York, discipline of lawyers is supposed to be accomplished through the judicial branch, and the particular advisory board that was being set up wasn't located within the judiciary. So it was a separation of
powers argument under the state constitution. The state constitutions look really different. So Texas, for example, has a very robust separation of powers sort of law under its constitution, whereas things look different in some other states. Even prosecutors themselves. I've been looking into this with a co author. We're working on a paper about how to think about you know,
local prosecutors and this state pushback. And in some states, you know, prosecutors are considered executive officials, in other states they're classified as judicial officials. In some states they derive their power from the state constitution. In other places there
just created by statutes. So all of those things will end up mattering as these laws end up getting challenged in the court, so we might see, you know, the legislation be upheld in Florida and then a very similar piece of legislation get struck down in Texas.
In Florida, the Eleventh Circuit heard arguments last week of our Governor Ron DeSantis suspending a state attorney for signing onto abortion and gender affirming care statements. Are there other instances where governors have tried to remove local prosecutors, So I don't.
Know about any other governors who have taken action, although I will note that somebody asked the governor in New York whether she had any plans to do anything with Alvin Bragg in Manhattan, and she didn't say no. Let's put it that way. How prosecutors can be removed from office is also different in all of the different states. They have different procedural mechanisms. In some states, like in North Carolina, for example, where I live, people can file
a petition with the court to get someone removed. We had a prosecutor who was removed a few years ago, not because he ran on some platform of reform, but because, come to find out, he wasn't really investigating a bunch of cases that had been brought to his office, and there were other problems as well. But different states have different mechanisms. You know, Larry Krassner is a very outspoken
progressive prosecutor in Philadelphia. He was impeached by the Pennsylvania Pulsive representatives and that's all been tied up in litigation. It hasn't proceeded to a trial in their state Senate for various reasons when it's being litigated, So it's complicated. I'm glad that people are talking about local prosecutors. They're
an incredibly important piece of the criminal justice system. But it's difficult for us to have national conversations about these things because at the end of the day, so many things are going to turn on very sort of specific technical state law issues, and I mean, hey, you know, it's hard enough to talk about those issues once, trying to talk about them half a dozen times to explain
why things are different in different states. I think there's you know, it's so much that the American public can bear.
I do think my listeners can bear it, though, Thanks so much. Carissa. That's Carissa Burne Hessig, director of the Prosecutors and Politics Project at the University of North Carolina School of Law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg