In high school we were taught that our founding fathers created the three branches of government for checks and balances so that one branch of government would not solely be in charge of the populace. In 1806 the U.S. Supreme Court affirmed this doctrine in the case of “Marbury vs. Madison,” ruling that the judicial branch, not the executive or legislative branch, was responsible for determining the constitutionality of a statute.
In Georgia, we emulated the United States Constitution so that we have the same three branches of government.
District attorneys in Georgia fall under the judicial branch of government. This is different from the federal system where United States Attorneys and the Attorney General are under the executive branch of government.
In Georgia, representatives in all three branches of government are elected by the people they serve. District attorneys and superior court judges are elected by the citizens in their respective judicial districts. In the legislative branch, state representatives and state senators are elected to represent their constituents and the governor and lieutenant governor are elected statewide.
HB 231 is an effort by the executive and the legislative branches of Georgia government to curb the powers of the duly elected district attorneys in Georgia. The legislature and lieutenant governor and governor are not happy that some district attorneys are deciding which cases they should take before juries for prosecution.
It has long been the practice and tradition in Georgia that the legislative and executive branches of government create criminal statutes, and district attorneys exercise their discretion and authority to decide which cases should be prosecuted. For example, when I was elected district attorney of DeKalb County in 1992 there was a criminal statute on sodomy, which made it a 20-year felony for consenting adults to engage in certain sexual acts in the privacy of their homes.
The U.S. Supreme Court ruled the Georgia criminal statute constitutional in “Bowers vs. Hardwick” in 1986. Although the law could be applied against heterosexual couples, only gay men were targeted for arrest and prosecution. In “Bowers”, an adult male was arrested for a sexual act that occurred in the privacy of his home.
I, along with several other district attorneys at the time, decided we would not prosecute adult citizens in our jurisdictions for consensual sexual acts which occurred in the privacy of their homes. Even though there was a law on the books, and the U. S. Supreme Court upheld that law, we exercised our discretion not to prosecute those cases. I firmly believe that the constituents we represented in our districts wanted us to use our discretion in that manner.
Surprisingly, in a complete turnaround in 2003 the Supreme Court reversed itself in a case out of Texas, “Lawrence vs. Texas”. That case overruled “Bowers vs. Hardwick” and held that the Georgia sodomy statute was, in fact, unconstitutional. The Georgia statute is still on the books, and if the Supreme Court reverses itself again, it will be a 20-year felony for consenting adults to engage in oral sex in Georgia.
I am surprised to learn that some district attorneys in Georgia have written the legislature in support of House Bill 231. It is their belief that district attorneys have no discretion as to which laws to enforce. I wonder how many cases of fornication or adultery, still jailable offenses in Georgia, those district attorneys have prosecuted.
All politics is local. The citizens of Georgia must decide whether they want their local elected prosecutor or the state legislature and governor telling them what cases to prosecute.
J. Tom Morgan is a criminal law professor at Western Carolina University and is a former district attorney in DeKalb County.
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