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Everyone bats an eye when it comes to The People having a say on the law re: jury nullification, but elsewhere that discretion is lauded — police discretion to intervene (except for Uvalde, of course), judicial discretion in sentencing (except for Black Supreme Court nominees, of course), and prosecutorial discretion. This last one is super interesting lately given Dobbs and the Texas prosecutor who just straight up nope’d on pressing charges on folks who wanted to exercise the right to not be an incubator last month for example. I’ll save you the read — here’s the pertinent part of the throwback:
Even if I like the outcome, I’d be blind or delusional to not see this for what it is — Constitutional Sheriffing. This sheriff is cool and I appreciate what he’s doing, but if Batman has taught us anything, it has to be that threats to order don’t become safe just because they are effective or have done good in the past. What about the other sheriffs?
Turns out Batman had another lesson to teach. His cousins are a problem too.
Soon after the Supreme Court voted to overturn Roe v. Wade, dozens of prosecutors nationwide — including at least five in Texas, representing some of the state’s most populous counties — declared they would not pursue charges against people who seek or provide abortions.
In response, a group of conservative Texas legislators have hatched a plan to circumvent those local district attorneys: allow prosecutors from other parts of the state to enforce the laws for them.
“The legislation that we will introduce next session will empower district attorneys from throughout the state to prosecute abortion-related crimes … when the local district attorney fails or refuses to do so,” wrote Rep. Mayes Middleton, chairman of the Texas Freedom Caucus.
God damn it — I hate being right all the time. You know how the Christian right-wing takeover of the Supreme Court is a counter-majoritarian problem? As bad as it is, one of the silver linings was that the problem was confined to the courts. When it comes to legislatures, it is presumably much harder to have minority rule because you vote in the people you want governing you. Right? Not so much.
In almost every state, including Texas, prosecutors are elected by people who live in their area of jurisdiction. If voters don’t like how a prosecutor has chosen to pursue some types of crime over others — like police prosecutions, marijuana offenses, or immigration-related crimes — they can vote differently next time.
If it passes, an abortion fund based in Austin — where Joe Biden won 72% of the vote in 2020 — could be prosecuted by a district attorney from Lubbock, where Trump won with 65%. Austin voters may be unhappy, but they would have no recourse in any subsequent Lubbock County election.
Next you’ll say, “Ah, clever argument, Chris. But it would never get that far. At most this is an accident that would get nixed if anything came about — it’s not like they’d actually do this.
In an interview last month with Dallas TV station WFAA, a reporter raised this question directly to Cain. Wouldn’t the proposal, the reporter asked, “essentially overturn, or move out of the way, a duly elected official?”
“I guess that’s how it would work. That’s the idea,” Cain replied. “And we’re gonna go for it.”
Who knew democracy would go out under the cover of states’ rights and accumulating religious victories over time? Andrew Prokop, at least in part. Samuel Perry and Philip Gorski had a few words. James Baldwin and Eddie Glaude, maybe?
Nah. Nobody could have seen this coming. That’s like predicting that the next right-wing rallying point will be to get the Court to say that there is a Constitutional prohibition against abortion by reading the Life and Liberty Clause of the Declaration as grounds for respect for life at conception being established at the founding. In the following week, when Clarence Thomas pens a 5-3 greenlight for a Texas officer shooting a Black fetus because the baby’s kicks gave the officer a reasonable fear for their safety, Gorsuch will pen a scathing dissent that cites the right to life at the time of the founding, and no one will pay it any attention.
C’est la vie, thoughts and prayers.
Texas Conservatives Have A Plan To Get Around DAs Who Won’t Enforce Abortion Laws [NPR]
Earlier: Despite This Sheriff Doing A Great Thing, I’m So Done With Discretion
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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