A Potent Weapon For State Legislatures To Undermine Reform Prosecutors

This story was produced in partnership with Slate. 

In the post–George Floyd backlash to criminal justice reform, Republican-controlled state legislatures have used a tool called preemption to negate, override, or replace local laws. It’s a tactic reflecting the fact that most targets of reform, such as policing and prosecution, are controlled by city and county governments, and those areas tend to vote Democratic, even in red states like Texas. Lacking direct local control, states settle for thwarting reform efforts, or, as may increasingly be the case, recalling or removing prosecutors or attempting to impeach them.

Preemption is a potentially potent weapon. While the Constitution protects states from at least some federal interference, the U.S. Supreme Court has been clear that it provides no protection for cities or counties from state interference. Many states have home rule laws or constitutional provisions that give cities some autonomy, but state legislatures still wield tremendous power.

States have used that power aggressively since Floyd’s murder. In 2020–21, as the “defund” movement gathered mostly rhetorical steam, nearly 10 states including Florida and Texas raced to adopt laws that would make it hard, if not impossible, for cities to cut police budgets. States also took aim at local oversight boards: Arizona adopted two laws that effectively require civilian oversight boards to be staffed with police officers. A recent study from the Local Solutions Support Center identified 27 preemption bills in 16 states aimed at limiting the power of reform prosecutors.

Preemption pushes have continued over the past year. In June of 2023, Texas Gov. Greg Abbott signed HB 17, which makes it easier for people to petition state courts to remove reform prosecutors who decline to prosecute certain offenses; by December, José Garza, the reform DA of Travis County (Austin), had had such a suit filed against him. Pennsylvania recently adopted a law called Act 40—signed by Democratic governor Josh Shapiro—removing power from Philadelphia’s reform DA, Larry Krasner, and giving it to a prosecutor appointed by the state’s attorney general for an undefined chunk of the city. Act 40 is messy—it’s unclear on how big the special prosecutor’s jurisdiction is—but it could effectively overturn Krasner’s 2021 reelection. “When I made the unexpected decision to run for DA in 2017, I thought that meant district attorney,” Krasner said in January. “I didn’t know that meant democracy advocate.” Both chambers of Georgia’s Legislature just passed a bill reviving a commission to discipline and remove prosecutors; most observers agree the real target of the bill is reform DAs and Fani Willis, who is prosecuting former President Donald Trump. The bill came after the Georgia Supreme Court struck down a similar bill late last year. And the conservative Heritage Foundation just proposed a sort of federal preemption, arguing that that the Department of Justice should “initiate legal action” against local prosecutors for declining to prosecute criminal offenses, while citing no federal law that would permit the DOJ to do so.

Preemption poses a serious, if not existential, threat to reform, especially for blue cities in red states. When I first started seriously considering preemption in 2021, I wrote that “it now poses one of the most serious threats to anything but the most moderate of criminal legal system reforms.” That same year, Governing magazine ran a piece with the headline “States Pre-empt Cities Almost to the Point of Irrelevance.” But successful preemption efforts may be a lot harder to achieve than I and others imagined. Of the 27 preemption bills identified by the Local Solutions Support Center, only five became law. When I wrote about preemption in 2021, I counted eight states with pending legislation; only two of those bills ended up becoming law. The low success rate of preemption bills could reflect the nature of the state legislative process. According to a recent study, only about 20 percent of all state bills become law. Passage requires political capital. Maybe these bills, like a cluster of “anti-woke” bills that were allowed to wither in Florida’s Republican-dominated Legislature this session, just weren’t worth it.

But perhaps preemption bills don’t need to pass to work; the threat alone could be enough. There’s no real need for anti-defund bills because almost no cities ever cut police budgets in the first place, and those that had restored funding almost immediately. Last year in Missouri, meanwhile, a bill to strip power from St. Louis’ embattled reform DA, Kim Gardner, died after she resigned in order to make the legislation moot. And in Tennessee, Memphis’ reform prosecutor Steve Mulroy refused to openly talk about charging abortion crimes in the final, post-Dobbs days of his campaign, likely out of fear of triggering more state oversight in a state that had already passed a law limiting prosecutorial discretion.

Alternatively, states can encroach on local power in ways that don’t involve the thorny and cumbersome legislative process. And not just in red states. In California, Gov. Gavin Newsom just sent a “temporary surge” of 120 California Highway Patrol officers into Oakland and the East Bay, where reform prosecutor Pamela Price faces a serious and well-funded recall effort. Newsom also deployed state attorneys to the area to prosecute violent crime, serious drug-related crimes, and property crimes including retail theft and auto burglary. The blue state’s apparent co-option of a beleaguered county DA is mirrored in red Louisiana. There, the state’s new Republican governor, who recently rolled out a slate of hard-line criminal justice measures, just announced an agreement with New Orleans’ reform DA giving the attorney general the authority to prosecute any and all criminal matters stemming from an arrest or investigation conducted by the Louisiana State Police or any law enforcement agency under the LSP.

Ultimately, reformers instinctively turn to the courts to address preemption. And there have been some victories, at least in the short run: Last summer, a trial court in Tennessee struck down a law that gave the state attorney general more power to take over some death penalty cases, although that case is still working its way through the appellate system. It’s unlikely, though, that the courts will be able to do much overall about preemption. Instead of relying on the courts, reformers should engage in politics. The politics of crime are complicated, given how symbolic they tend to be; they can be a shorthand for racism and white racial fears, and for other social anxieties. But the people most impacted by crime often favor reform candidates in prosecutor elections, state law enforcement involved in intervening in local criminal justice systems can be unpopular politically, and the politics of prosecutors themselves are often aligned against state interference. One reason it took the Republican-dominated Missouri Legislature three tries to oust Kim Gardner is that their earlier efforts faced opposition from other Republican prosecutors. A pending effort by allies of Florida Gov. Ron DeSantis to redraw the multi-county districts that elect prosecutors faced immediate opposition from conservative rural prosecutors who do not support reform but fear they, too, would lose their jobs under the new maps. Politics—particularly around issues like retail theft—can drive preemption efforts and states sending police and prosecutors into cities. But politics can also serve as a means to push back against the power of the state, proving that preemption is far from inevitable.