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House GOP holds back bill aimed at progressive local prosecutors

Some Republicans say they have concerns the measure would infringe on local criminal justice decisions

Rep. Nicole Malliotakis, R-N.Y., sponsored the bill to require prosecutors in major jurisdictions to report on certain actions.
Rep. Nicole Malliotakis, R-N.Y., sponsored the bill to require prosecutors in major jurisdictions to report on certain actions. (Bill Clark/CQ Roll Call)

A Republican-backed House bill aimed at progressive district attorneys ran into trouble this week amid concerns from conservative lawmakers and sharp criticism from prosecutor groups.

Once labeled as “ready-to-go” legislation by House Majority Leader Steve Scalise, the tough-on-crime bill was listed for a possible floor vote this week along with other red meat political issues like IRS funding, abortion and the U.S. posture toward China.

The measure would not force progressive district attorneys in the country’s biggest cities to roll back their efforts to change the approach of the local criminal justice system. But it would require their offices to report metrics to the Justice Department, such as the number of cases they declined to prosecute for certain crimes.

The bill highlights the partisan divide over efforts from some prosecutors to implement different policies, which advocates say are necessary because the system is unfair, too punitive and disproportionately punishes people of color.

Republicans made safety concerns related to violent crime a key campaign issue in their midterm pitch to voters. But some Republicans say they have concerns that this bill would infringe on local decisions.

Rep. Victoria Spartz withdrew herself as a co-sponsor of the bill on the floor Wednesday. The Indiana Republican said in an interview that the measure touches on a serious topic but she had concerns about infringing on states’ rights, adding that most criminal justice issues take place at the state level.

“We need to make sure that we respect states’ rights and also go through the proper deliberation and debate in the committee,” Spartz said. “I was actually criticizing Democrats quite a bit for not doing it last Congress, and we can’t be hypocrites.”

Rep. Andy Biggs, R-Ariz., who was among a group of Republicans who withheld support for Kevin McCarthy on numerous ballots for speaker last week, said he’s not a supporter of the bill.

Biggs described it as the “federalization” of local law enforcement. He pointed to how last year, a progressive district attorney in San Francisco, Chesa Boudin, was recalled by voters.

“That’s a more appropriate remedy than putting the federal government to solve every local problem,” Biggs said.

Prosecutors prosecuting

The bill sponsor, New York Republican Rep. Nicole Malliotakis, has argued it would provide a measure of accountability and that progressive criminal justice policies give criminals the greenlight to break the law.

“We’ve seen a disturbing trend in progressive district attorneys in cities across the country who are refusing to prosecute violent criminal offenders,” Malliotakis said in a floor speech in June, when the bill was introduced last Congress.

The bill, called the “Prosecutors Need to Prosecute Act,” didn’t make it out of the Democrat-controlled House last session. It is unlikely to pass a Democrat-controlled Senate now.

And if changed, it could need to go through legislative procedures to get to the House floor.

“We do believe prosecutors should prosecute, but look, we respect federalism. We respect that — so we’re having a little debate inside the conference about that,” Rep. Chip Roy, R-Texas, said.

In a statement Thursday, Malliotakis said she’s working to address her colleagues’ concerns and respects their views.

“However, if big-city prosecutors are receiving federal dollars, the Department of Justice, Members of Congress and the public deserve to know which prosecutors are doing their jobs and which aren’t,” Malliotakis said. “In cities like my own where prosecutors act more like defense attorneys, there is an explicit need for accountability and transparency.”

Her office noted the National Association of Police Organizations backs the bill.

Under the legislation, local prosecutors who have more than 380,000 people in their jurisdiction would be required to submit a report on specific crimes, such as burglary, larceny, robbery and motor vehicle theft, among others.

For those crimes, the report would include the number of cases that led to a plea agreement and the number of cases the office declined to prosecute.

Local prosecutors who do not comply with the reporting requirement would be at risk of losing money from a Justice Department grant program, according to Malliotakis’ office.

Political debate

Rep. Tom Tiffany, a Wisconsin Republican and co-sponsor of the bill, said the legislation is directed at prosecutors who are too lenient.

Sometimes, those prosecutors have simply not been doing their jobs, said Tiffany, who in the past has served on the Crime, Terrorism and Homeland Security Subcommittee within the House Judiciary Committee.

“We want to make sure there’s accountability for the federal dollars that are going to help them fight crime,” Tiffany said.

The criminal justice debate has played out for several years in Malliotakis’ state, where the implementation of a sweeping New York bail reform law generated heated backlash from Republicans and law enforcement.

Meanwhile, progressive prosecutors have drawn Republican ire and faced opposition once in office. In Pennsylvania, for example, the state House voted to impeach Philadelphia’s progressive district attorney, Larry Krasner.

Last year, in the wake of the Boudin recall in San Francisco, the office for then-House Minority Leader McCarthy framed the moment as a referendum on liberal policies, saying Malliotakis’ legislation would “hold liberal prosecutors accountable” to taxpayers.

In arguing for the measure, Malliotakis has pointed to an initial memorandum from Manhattan District Attorney Alvin Bragg, which said his office would not prosecute certain charges, like prostitution and marijuana misdemeanors.

But attorneys simply do not have the resources to prosecute every crime, and prosecutors have long had discretion over what criminal charges to bring forward, said Miriam Krinsky, a former federal prosecutor and the executive director of Fair and Just Prosecution, a group that promotes elected local prosecutors who support criminal justice reform.

“That’s been the way of the world for decades and no one seemed to have a problem with it when those choices were made in ways that promoted tougher and tougher, and longer, sentences,” Krinsky said.

Outside criticism

Prosecutor groups expressed significant concerns to lawmakers about the legislation, poking holes in its feasibility and criticizing its practicality. They said it would implement an unreasonable reporting requirement and pull resources away from investigating and prosecuting cases.

“Mandating new burdensome reporting requirements will require prosecutors to divert funding away from hiring key staff such as those who handle the testing of rape kits, lead the prosecutions of violent offenses and sex abuse cases,” John J. Flynn, president of the National District Attorney Association, wrote in a Jan. 5 letter to lawmakers.

Flynn, who serves as the district attorney in Erie County, N.Y., described the effort as an “unfunded mandate” and a “misguided proposal” that could worsen their ability to protect citizens and improve the criminal justice system.

Concern over the bill is also coming from the Association of Prosecuting Attorneys, a nonprofit organization that represents elected, appointed and line prosecutors.

“The outcome of this bill very well might be the limiting of prosecutorial discretion and could have a chilling effect on prosecuting certain types of cases,” David LaBahn, CEO of the organization, wrote in a letter to House leaders.

Steve Zeidman, a professor at CUNY School of Law and co-director of the Defenders Clinic, dismissed the bill as “political theater” and “political grandstanding.”

“There’s no ‘there’ there. What’s the articulated need for it? Malliotakis and others, they can say ‘Oh crime has run rampant and it’s because of prosecutors.’ There’s no evidence to support that at all. There’s just no facts to support it,” Zeidman said. “So if you are going to propose a bill with no factual support, that is I think a colossal waste of congressional time.”

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