Opinion: The end of prosecutorial discretion: A slippery slope for democracy
Prosecutorial discretion — the power of district attorneys to make decisions about whether or not to press charges for a crime, and which charges to file — is a cornerstone of representative democracy. This flexibility helps courts allocate their resources appropriately to reflect the will of the people and further our shared goal of reducing crime and keeping our communities safe.
A DA might opt not to bring a shoplifter to trial, for example, so that their staff can focus on a child trafficking case instead. Some, like Travis County DA José Garza, have chosen not to prosecute low-level marijuana possession cases because their community prioritizes other, more violent, charges. DAs are elected to make dozens of these decisions every day to ensure justice is served.
Preempting these local elected officials, without regard for local sentiment, the 88th Texas Legislature voted last year to prohibit DAs from utilizing their discretion to align with their communities’ priorities. House Bill 17 allows any person who has resided in the county for a mere six months to file a petition to remove a DA from office for choosing not to prosecute certain types of crimes.
Already this legislation has threatened the agency of two Central Texas DAs — José Garza and Kelly Higgins of Travis and Hays Counties, respectively — who were sued by opponents who disagree with their policies. The law encourages disgruntled individuals with personal and political vendettas to challenge democratically elected officials, causing political upheaval that destabilizes our communities and threatening the integrity of our government.
In addition, HB 17 infringes upon our federal and state constitutions. Punishing an elected official for making a public statement about how their office operates not only violates the First Amendment by chilling free speech, but it also erodes transparency between the people and our government by stifling a DA’s ability to communicate their intentions clearly and truthfully to the public. Secondly, HB 17 violates the Texas Constitution, which grants the power to decide and decline cases exclusively to the elected prosecutors of Texas. In 2022, the highest criminal court in the state, the Texas Court of Criminal Appeals, affirmed that charging decisions are vested in county and district attorneys.
Proponents of this legislation are ostensibly concerned about reigning in prosecutorial abuse, but their argument fails to consider the ample oversight provisions already in place to ensure accountability. DAs can be disciplined by the State Bar and district judges for misconduct or incompetence, subjected to civil lawsuits for constitutional rights violations, or criminally prosecuted. Most importantly, DAs who fall short of our law enforcement standards can (and should) be voted out of office. There are plenty of answers to ineffective DAs, but unconstitutional state overreach into county affairs is not one of them.
Instead of addressing issues of accountability, HB 17 subverts the votes of those who elected DAs based on their charging decisions. Prosecutorial discretion is an essential component in our legal system that ensures justice is tempered with compassion and humanity. Without it, DAs are forced to comply with a rigid, one-size-fits-all framework that neglects the nuanced opinions and priorities of Texas’ diverse communities.
Trust and support your local DAs to do their job effectively and with regard to the needs of your community. You can also contact your state representatives to express your opposition to changes made by HB 17 and emphasize the importance of safeguarding the integrity of our constitutional rights. Our collective voice is the strongest defense for this integral aspect of our representative democracy.
Malik is a staff attorney for Texas Appleseed's Criminal Justice Project.
This article originally appeared on Austin American-Statesman: Opinion: Ending prosecutorial discretion: A slippery slope for democracy
