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After spending four years in the army in 1988, Darion Barker came home to unemployment. He fell in with people who were dealing crack, started using, and then selling to support his habit. Soon enough, he had a few convictions for street dealing, and his last one led to a Life Without Parole sentence under Georgia’s ”three strikes” law. 

But Barker got a second chance thanks to a 2015 law signed by former Georgia Governor Nathan Deal, a conservative who made criminal justice reform one of his priorities. Now living with his mother in Macon, Baker told a local paper, “This is so amazing to me. You know, you can never figure God out.”

With a series of underhanded moves, the Georgia Governor appears to be working to prevent progressive prosecutors from winning local elections.

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Nathan Deal and his successor Brian Kemp may both be Republicans, but they are not cut from the same cloth on this issue. Since narrowly beating Stacey Abrams in 2018, in a deeply flawed election that he oversaw as Secretary of State, Kemp has been on a warpath toward a more incarcerated Georgia. His retro tough-on-crime stance has so far produced an “anti-gang bill” that would have led to more kids tried as adults, and budget cuts to the public defender system and accountability courts.

These issues stirred up controversy, but there’s another important tack Kemp is taking that’s received less attention. With a series of underhanded moves, the Georgia Governor appears to be working to prevent progressive prosecutors from winning local elections.

Kemp seems to have taken to heart the messaging from the ACLU and others that it is actually the executive branch, particularly prosecutors, that has the most power over who goes to prison, for how long, and why. As in most states, Georgia’s top county prosecutors are elected, but a quirk in Georgia law means Governor Kemp has the opportunity to forestall the almost-inevitable “progressive prosecutor” tide that has swept. big-city prosecutor’s offices in dozens of cities around the nation.

Unlike other populous southern states including North Carolina, Virginia, and Florida, Georgia has not had a single prosecutor run on a platform of lessening the harshness of punishment. In Northern Virginia, Arlington Commonwealth Attorney Parisa Tafti and Fairfax County Commonwealth Attorney Steve Descano fought for marijuana decriminalization and ending cash bail on the campaign trail. While she only addressed the issue after taking office, Orlando State Attorney Aramis Ayala brought Florida’s death penalty debates to the national stage with her abolitionist stance. Candidates like these tend to win in urban counties, especially when George Soros or Morehouse College graduate Shaun King get involved. Like these other southern states, Georgia has a large Black population, the demographic most disproportionately hit by racial disparities in the criminal legal system

A state law passed shortly after Kemp took office gave him a tool to make it harder for the progressive prosecutor movement to gain a foothold in Georgia.

Currently, Georgia’s most forward-thinking prosecutor is DeKalb County District Attorney Sherry Boston. Though she didn’t run as a criminal justice reformer in 2016, she recognizes that people change, even when they have serious crimes on their record. DA Boston recently helped Christopher Williams obtain freedom 19 years into a Life Without Parole prison sentence. Williams had been the lookout during a liquor store robbery, and was given that harsh sentence because he had committed an armed robbery as a juvenile. Most recently, she opposed Kemp’s “anti-gang” bill, which has since been revised.

Boston may remain an outlier. A state law passed shortly after Kemp took office gave him a tool to make it harder for the progressive prosecutor movement to gain a foothold in Georgia. Under the new law, a district attorney race can be cancelled if the Governor appoints an interim DA to replace a retiring DA less than six months from election day. All Kemp has to do is stall on making a new appointment and the interim DA will be in office for two years until the next election cycle. 

Athens, a liberal college town, is going to see how that plays out on the ground. On February 5, Ken Mauldin, Democratic DA of Clarke and Oconee Counties, resigned for “a new chapter to begin” in his life. Mauldin’s job automatically fell to his chief deputy, who normally would square off with candidates in a November special election. But if Kemp appoints an interim DA after May 3, voters won’t have a say in the matter until 2022. 

In other parts of the country, having an extra two years as an interim Republican DA to prepare for re-election has proven highly valuable. As political analysts saw in San Diego in 2018, Summer Stephan had been preparing to fight against Soros PAC money for over a year, even before she was chosen as interim DA. After she trounced her progressive Democratic challenger, Geneviéve Jones-Wright, Stephan quickly switched her party designation to Democrat.

Identity politics could be another factor in Kemp’s strategy to install long-term DAs faithful to his mass incarceration agenda. 

“Amend the law to make it clear that an election must happen that year, on schedule.”

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In Cobb County, a historically white, conservative part of the metro-Atlanta region that in recent years has become a more diverse swing district, Kemp moved the long-term DA Vic Reynolds to the director’s seat at the Georgia Bureau of Investigation. Then he appointed Joyette Holmes, an African-American woman who won her previous seat as Cobb’s Chief Magistrate judge campaigning for reelection as a moderate Republican. Her appointment came with a shower of media attention celebrating her breaking racial and gender barriers, even as she affirmed that she would prosecute people who violate Kemp’s unconstitutional abortion ban. Judging by the interracial enthusiasm surrounding her appointment, Holmes will be harder for a progressive candidate to unseat.  

There is an open question as to whether Governor Kemp is eyeing other populous counties that are becoming more diverse and liberal, such as Gwinnett County. There, the conservative DA Danny Porter who had been in office since 1992 briefly considered running as a Democrat, but has since announced he will continue to run on the Republican ticket. 

Kirkland Carden, a former city councilman in Duluth who is now running for Gwinnett County Commissioner, told Scalawag that while he does not foresee DA Porter resigning early, it is his opinion that “what we saw in other communities like Cobb County and Athens was a power grab and disrespectful to the voting population of those communities.”

On the other hand, Steen Kirby, a longtime political consultant and strategist in Georgia, thinks Danny Porter’s partisan flip-flop could reflect an unfocused DA unsure of his political future, and that residents should not be too surprised if he calls it quits early. Additionally, whispers of early resignations and potentially delayed elections can put any challenger’s campaign in jeopardy, Kirby explained. Currently, two would-be candidates for a Georgia Supreme Court seat are suing Governor Kemp over similar circumstances after Justice Keith Blackwell resigned early, enabling Kemp to choose his successor. 

In Kirby’s opinion, the 2018 law “needs to be changed. Even if it isn’t being abused, it definitely could be.” And he had concrete advice for legislators who may seek a solution: “Amend the law to make it clear that an election must happen that year, on schedule, rather than disrupting the typical four-year schedule.”

This would permit challengers to invest in campaign infrastructure and fundraising to put forth a viable competitive candidacy, which means a more robust democracy statewide.

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Rory Fleming

Rory Fleming is an attorney and former legal fellow at the Harvard Law School Fair Punishment Project. He has consulted on various political campaigns for top local prosecutor in many of the nation’s largest jurisdictions, including San Francisco and San Diego County in California, Queens in New York, Suffolk County (Boston) in Massachusetts, and Mecklenburg County (Charlotte) in North Carolina.