October 9, 2023
Proskauer Rose LLP
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Proskauer, along with local attorney Canfield Law LLC, recently filed an amicus curiae brief on behalf of the Institute for Innovation in Prosecution at John Jay College (“IIP”) in support of prosecutors in Georgia challenging the constitutionality of a new oversight commission for question the prosecution. The lawsuit, filed by four Georgia prosecutors and led by DeKalb County District Attorney Sherry Boston, seeks to challenge Georgia Senate Bill 92 (“SB 92”) and its establishment of a Prosecuting Attorneys Qualifications Commission (“PAQC”), which has the appropriate authority to investigate and remove local prosecutors whose members are appointed by the governor and other elected officials. The plaintiffs allege that the Legislature passed SB 92 in an apparent attempt to undermine the power of certain district attorneys to implement reform-oriented agendas for which they were elected.
In the lawsuit, the plaintiffs argue that SB 92 and the PAQC violate the Georgia Constitution in many ways, including violating the separation of powers by interfering with prosecutors’ discretion, limiting their right to free speech, and improperly granting authority to the PAQC What conduct they define would expose prosecutors to possible disciplinary action and violate their due process rights due to the law’s vagueness. Plaintiffs also contend that SB 92, by undermining prosecutors’ discretion, jeopardizes their ability to focus on the most serious crimes and not prosecute less serious crimes or solve them in more efficient ways, such as through pre-trial diversion programs .
IIP’s amicus brief explains how prosecutorial discretion is fundamental to the role of the prosecutor and the functioning of the criminal justice system. Prosecutors are not required to charge every crime for which there is probable cause or to charge the highest possible crime. By limiting this authority, SB 92 ignores the practical reality that prosecutors must make decisions about whether and how to prosecute cases based on a constellation of factors, including resource limitations, the needs and desires of their communities, personal history, and the characteristics of the Accused perpetrators and the interests of justice.
An example contained in the brief illustrates this aspect of prosecutorial discretion. Although Georgia’s outdated laws against adultery, fornication and sodomy remain in effect, decisions not to prosecute these crimes are not considered illegal by lawmakers, nor do they provide a basis for establishing a commission to investigate, discipline and remove them of district attorneys refuse to incriminate them. The brief goes on to explain that the same principle applies when prosecutors determine that it would not be in the public interest to prosecute certain other categories of crimes, such as marijuana possession or providing reproductive health care. The brief also argues that SB 92 represents an undue interference with the powers delegated to the executive branch and will impede prosecutors’ ability to openly communicate their enforcement priorities to voters.
On September 29, 2023, Fulton County Superior Court Judge Paige Reese Whitaker denied plaintiffs’ request for a preliminary injunction to prevent the PAQC from beginning its operations on October 1, 2023. The lawsuit continues and plaintiff Sherry Boston has issued a statement saying the court’s denial of the injunction request is “just the beginning of what we expect will be a long legal battle.”
IIP is a nonpartisan think tank that brings together prosecutors, policy experts, and the communities they serve to advance data-driven strategies, cutting-edge science, and innovative thinking related to law enforcement and criminal justice issues.
Proskauer’s team included partner Robert Cleary, associates Russell Gorkin, Andrew Sherwood, Brooke Gottlieb and Christopher Spadaro, and paralegals Anna Brodskaya and Susanna Nagorny.
The case is Boston et al. v. Cowart et al., No. 2023-CV-383558 (Super. Ct. Fulton Cty. Ga.).
Proskauer files amicus brief in support of Georgia prosecutors challenging oversight commission
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