Tim Michels, the construction magnate and GOP candidate for governor in Wisconsin, has made it clear he will fulfill a Republican priority on his first day in office: firing Milwaukee County District Attorney John Chisholm. Chisholm has been in the crosshairs of the state GOP since last November, when Darrell Brooks Jr. posted $1,000 bail days before he allegedly drove his SUV through the Waukesha Christmas parade, killing six and injuring 60. More than a dozen Wisconsin Republicans have asked Democratic Gov. Tony Evers to remove Chisholm, who has since said the bail set for Brooks was “inappropriately low.” Evers has resisted, arguing the mistake does not constitute the “inefficiency, neglect of duty, official misconduct, or malfeasance” that permits the governor to remove a prosecutor. Michels, his opponent, says he’ll can Chisholm and any other DAs who “create a dangerous situation in their community.”
Republicans have met the enemy, and he’s the district attorney. As the party centers its 2022 campaigns on urban mayhem real and imagined, old crimes like drug possession and new ones like abortion, local prosecutors have become the avatars of Democrats’ “soft-on-crime policies,” as an op-ed by GOP Reps. Steve Scalise and Scott Fitzgerald put it last month. “By cracking down on rogue prosecutors who favor criminals over victims, we can ensure that no one else is put in harm’s way as a result of Democrats’ negligence,” they wrote, singling out so-called far-left prosecutors like Chisholm. Almost all those prosecutors are elected, usually in deep-blue cities, and Republicans have not had much luck unseating them at the ballot box. But the preferences of city voters matter only until statehouse Republicans decide they don’t.
It’s not just Wisconsin. Florida Gov. Ron DeSantis has suspended a Tampa-area prosecutor; Pennsylvania Republicans are trying to impeach Philadelphia DA Larry Krasner, who was easily reelected just last year; the former U.S. attorney who ran for governor (and lost) in the GOP primary proposed passing a constitutional amendment to end prosecutor elections in Philadelphia and Philadelphia alone. (Neither of those initiatives seems likely to succeed.) Laws to override local DAs have been proposed in states like Texas, Georgia, Virginia, Indiana, and Missouri, and passed in states like Tennessee.
“There are two trends worth observing,” said Carissa Byrne Hessick, a law professor at UNC. “First, we’ve seen what you might call a nationalization of local prosecutor elections. People are paying attention to races that don’t directly involve them. Those offices have become more visible, more salient, more open for political point-scoring. The second trend, in response, is state officials pushing back against them in really open ways.”
Over the past decade, so-called progressive prosecutors determined to repair the injustices of the tough-on-crime era have won over voters in places as different as Memphis and Manhattan. Since the start of the pandemic, however, violent crime has spiked in many cities and the perception of crime has gone up further still, putting DAs under pressure even in deep-blue enclaves like Los Angeles and San Francisco.
But these new challenges aren’t coming from prosecutors’ own constituents. Republicans running on the idea that Democrats want to “defund the police” feel newly emboldened to reject the electoral preferences of urban voters. Add to that mix the Supreme Court’s Dobbs decision and the subsequent red-state criminalization of abortion, and you have a big divide between right-wing state legislatures and the elected officials tasked with enforcing the laws they write.
Many left-leaning state attorneys have been open about the fact that they will not prosecute some laws passed by Republican legislatures. From the Associated Press last year:
In Georgia, the Gwinnett County solicitor vowed not to punish anyone for the crime of distributing food or water to voters in line. Tampa’s chief prosecutor says a law that allows law enforcement to detain protesters until their court date is “an assault on our democracy.” And a district attorney in Douglas County, Kansas, promised not to enforce a new state law that makes it harder for nonpartisan groups and neighbors and candidates to collect and return absentee ballots for voters.
In Tennessee, for example, a “rogue prosecutor” bill aimed at Nashville DA Glenn Funk passed last fall, creating a workaround to go after cases Funk said he wouldn’t—including prosecuting teachers for enforcing classroom mask mandates.
“It’s a new big issue, and it’s happening now because when very conservative GOP lawmakers can’t get their way at the ballot box on hot-button cultural issues, they take extraordinary measures,” said Lara Bazelon, a law professor at the University of San Francisco. “Including trying to impeach a sit-in DA who hasn’t committed a crime, passing legislation to give other DAs extraordinary jurisdiction, and actually removing a duly elected DA from his job. They’re overriding the will of the voters.”
Can a prosecutor openly ignore a law they don’t agree with? Can another official step in to prosecute if they do? The details differ a bit from state to state. In Pennsylvania, the Republican Majority Leader Kerry Benninghoff said last week that Krasner, who has made a point of diverting low-level offenders from jail and prison, has made Philadelphians “prisoners of fear. … We must do something to help the people of Philadelphia.” Specifically, Republicans in Harrisburg have filed two articles of impeachment against Krasner, citing “misbehavior in office.” The impeachment—just the third in Pennsylvania history—comes days after a Select Committee on Restoring Law and Order released an interim report citing a controversial study that argued that a reduction in prosecutions in the city led to a subsequent increase in murders. (Actually, ejecting Krasner would require a trial in the evenly bipartisan Pennsylvania State Senate and a two-thirds vote to convict.)
Like Krasner, Hillsborough State Attorney Andrew Warren was elected twice by voters in Tampa, Florida. Nevertheless, in August, DeSantis had him removed from his office by a sheriff’s deputy, citing his refusal to prosecute low-level crimes, as well as two pledges Warren signed, one to decline to prosecute cases involving transgender health care, the other to decline to prosecute anyone seeking or providing an abortion.
Warren has sued DeSantis; the case seems bound for trial. There are few precedents. One is another Florida prosecutor, Aramis Ayala, who vowed not to enforce the death penalty. Then-Gov. Rick Scott moved death penalty cases out of her jurisdiction. Another is Julian Bond, a civil rights activist and opponent of the Vietnam War who won a seat in the Georgia House in 1965. The house voted to prevent him from being seated; the case went all the way to the U.S. Supreme Court, which gave Bond his seat.
Broader efforts are underway in other states, such as Texas, where prosecutors in Democratic strongholds like Dallas, Austin, and San Antonio say they will not prosecute cases related to abortion. In response, conservative state legislators say they will introduce a bill that would allow prosecutors to jump into other districts to prosecute abortion-related crimes. The dispute recalls the “sanctuary city” debate over whether local police departments should work with federal immigration police. Texas Gov. Greg Abbott signed a bill in 2017 instituting fines for law enforcement officers who didn’t honor inquiries from ICE.
Marc Levin, chief policy counsel at the Council on Criminal Justice, argues there’s little sound reasoning behind these crusades. First, he says, prosecutors have limited resources and should be free to prioritize violent crime. Second, prosecutors won’t waste their time bringing cases where local juries won’t vote to convict. (You might be able to delegate abortion cases to a neighboring DA, but you definitely can’t parachute in rural jurors.) Finally, there are many ridiculous old state laws on the books that are never enforced—so it’s hardly a matter of principle that all laws must always be enforced.
Most importantly, prosecutors are elected and can be unelected if people don’t like their politics. In the case of the wave of progressive prosecutors, city residents have already demonstrated that they can both vote out (San Francisco’s Chesa Boudin) or reelect (Larry Krasner) officials according to their performance. In a way, the Republican fixation on micromanaging local court proceedings is brand new. But in another sense, it’s part of a much older trend, one in which Republicans seek to strip away urban power when they don’t like the policies that result.