The unconstitutional consequences of a prosecutorial oversight commission

From former Glynn County District Attorney Jackie Johnson’s meddling in the Ahmaud Arbery case to the public corruption convictions of former prosecutors Dick Donovan in Paulding County and Mark Jones in Columbus, cases of prosecutorial misconduct have made headlines across Georgia in recent years.

So, it may seem like the Georgia Legislature’s passage of Senate Bill 92, which creates
the Prosecuting Attorneys Qualifications Commission, was an appropriate response.

But transparency problems created by the Prosecuting Attorneys Qualifications
Commission could undermine the very goal lawmakers stated as their rationale for SB
92 – i.e., bringing to light prosecutorial misconduct. Plus, if the bill is signed into law by Gov. Brian Kemp, it could lead to a raft of First Amendment violations.

As established by SB 92, the Prosecuting Attorneys Qualifications Commission, either
by external complaint or on its own initiative, can investigate prosecutors for various
forms of misconduct, from the vague “bringing disrepute to the office” to a decision not to prosecute.

However, SB 92 is more problem than solution.

If signed into law, SB 92 would directly harm public transparency. It provides that
records and work product of the Prosecuting Attorneys Qualifications Commission may remain confidential for any incapacity or disciplinary matters. Additionally, any
information provided to the Commission is secret for the duration of an investigation into the prosecutor. This means that even when a district attorney or solicitor-general is under investigation, the public is unable to know about the information gathered unless that confidentiality is waived. When dealing with potential misconduct, especially that of elected officials, this lack of transparency is striking.

While the commission may later release information about their investigation once the it has decided whether to charge a D.A., the elected prosecutors are not subject to
public scrutiny during these deliberations. There are gaps here too in what can be
released, permitting the commission nearly unlimited discretion to determine when
something falls under an exception to the Georgia Open Records Act. The legislation also prevents the release of any information for incapacity determinations even after a charging decision is made for what are, again, publicly elected officials.

Even putting aside the litany of exceptions that prevent information from being released, the commission’s investigative secrecy is of paramount importance to Georgians. This is because we will be unable to see how the commission’s charging decisions are made. Given that a purported goal of the Prosecuting Attorneys Qualifications Commission is to ensure that prosecutor’s charging decisions are made faithfully to the law, the lack of transparency in the commission’s own charging decisions is ironic at the least and hypocritical at worst.

Further, the law emerging from SB 92 could have indirect harmful effects on
government transparency with respect to criminal investigations conducted by prosecutors.

Under the Georgia Open Records Act, there exists an exception for ongoing criminal
investigations, such that investigative files are exempt from public disclosure until the
case is resolved. The possibility of discipline for  district attorneys as established by SB 92 gives prosecutors incentive to forgo making charging decisions at all, leaving their criminal investigations and the law enforcement records they’re based upon in permanent limbo and out of public view. Without this vital information, how will citizens hold police and prosecutors accountable or ensure that the commission itself is doing the work it’s charged with under the law?

Then there are the free speech and free expression implications. Plenty of laws still on
the books in Georgia infringe on First Amendment freedoms. For instance, local and
state laws in Georgia prohibit making “coarse jokes” during performances, singing an
“immorally suggestive song,” and wearing face coverings or masks in public. Other
antiquated laws prohibit fornication, adultery, and sodomy. Yet prosecutors could face
disciplinary review for refusing to enforce these laws, rather than making informed
decisions not to prosecute. Under such threat of disciplinary action, prosecutors may
feel compelled to move forward with charges they know are unconstitutional.

In addition, political pressure on prosecutors could lead to discriminatory and arbitrary enforcement of laws against politically unpopular groups and speech, another violation of the First Amendment. Under SB 92, the entire Prosecuting Attorneys Qualifications Commission will be appointed by politicians. Putting prosecutorial oversight powers into the hands of political appointees could lead to unconstitutional agenda-driven disciplinary reviews of prosecutors’ conduct and decisions. Opponents of SB 92, including some prosecutors, have already decried its political motivations. Subjecting prosecutorial discretion to political oversight by a non-transparent commission of inquisition would undermine Georgians’ confidence in our prosecutors and our legal system, opening the door to unconstitutional prosecutions in jurisdictions across our state. The legislation is poised to increase violations of First Amendment rights and create serious gaps in government transparency and accountability.

If the governor signs it into law, watch for our tax dollars to go toward defending this bad legislation in court.

(Editors note: As of publication of this commentary, the governor had not yet signed SB 92 into law. He has until May 8 to sign it, veto it, or allow the law to take effect without any action)