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Fact Check Team: States move to limit prosecutorial discretion

The Texas Capitol is pictured here in an undated photo. (AP Photo/Eric Gay, File)
The Texas Capitol is pictured here in an undated photo. (AP Photo/Eric Gay, File)
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State governments around the country are considering legislation that would limit how elected prosecutors pursue different cases.

On June 6th, Texas Governor Greg Abbott signed H.B. 17 into law, which changes the amount of discretion district attorneys have in the state by defining refusal to pursue charges as “official misconduct.”

Under the new law, any Texas resident can file a petition to remove a prosecutor, which could potentially lead to removal from office by a judge from another district.

Prosecutors in general have had a lot of discretion to choose which cases they want to take on or prioritize, which is why legislators wanted to pass this bill: so they could hone in on “rogue” prosecutors who were not pursuing charges like low level drug offenses, voter fraud, and abortion.

Last year, after the Supreme Court handed down Dobbs v. Jackson Women’s Health Organization, prosecutors from 29 states and Washington D.C. signaled they would not use limited sources to pursue abortion cases in a joint statement. Five Texas district attorneys signed the statement.

One of the signatories, Bexar County (which includes San Antonio) District Attorney Joe Gonzalez, said “using limited resources to prosecute personal healthcare decisions” would violate his oath.

However, since Texas has banned most abortions, it would be considered misconduct for a prosecutor not to pursue charges which could result in removal from office.

At least 17 states have attempted to pass bills that limit prosecutorial powers. Over the last several years, 37 bills have been introduced in state legislatures aimed at changing how prosecutorial discretion is handled.

More recently, lawmakers in Indiana proposed a bill (S.B. 284) that would remove the attorney general’s jurisdiction in certain cases, establish a prosecutor review board and establish a special prosecutor unit.

Under this bill, prosecutors would elect three board members to oversee complaints of noncompliance. For example, possession of marijuana is illegal in Indiana, and Marion County Prosecutor Ryan Mears has said he will not pursue charges on people caught with small amounts of the substance.

However, S.B 284 would apply if a prosecutor refuses to go after those low level drug offenses. If a complaint is filed, the Indiana Prosecuting Attorneys Council (IPAC) would investigate and decide whether the prosecutor is out of compliance and whether they should have jurisdiction.

So far, Pennsylvania, Utah, Iowa and Tennessee have enacted some kind of legislation limiting prosecutorial discretion.

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