GOP senators vote in favor of federal control over how cities can handle crime

Sen. Cindy Hyde-Smith introduced a budget amendment that would have penalized local governments over prosecutorial discretion.

By Josh Israel - August 11, 2021

A budget resolution amendment proposed early Wednesday by Sen. Cindy Hyde-Smith (R-MS) would have cut off nearly all funds to local governments if their prosecutors prioritized going after the most serious violent crimes. Nearly every Senate Republican voted in favor of the amendment.

Hyde-Smith proposed an amendment that would have put the Senate on record in support of eliminating federal funding, except for law enforcement, to any “local government whose district attorney directs its prosecutors not to prosecute certain violent offenses or serious offenses that result in damage or injury to the property of any other person.”

“Liberal prosecutors who adopt non-prosecution policies leave small businesses vulnerable & unassisted as they are burglarized, defaced, and destroyed,” Hyde-Smith tweeted. “Disappointed my Dem colleagues blocked my amendment to stand up for small businesses & hold these local prosecutors accountable.”

“Defying the rule of law and endangering the public has Mississippians and Americans across the country saying ‘enough is enough,'” Hyde-Smith said in a statement posted to her official Senate website.

The amendment was one of dozens proposed during an all-night “vote-a-rama,” a process of introduction and consideration of amendments to budget resolutions intended to slow procedures and delay voting on the final resolution. Hyde-Smith’s amendment to the $3.5 trillion budget resolution failed on a 47-52 vote, with just two Republicans — Maine Sen. Susan Collins and Utah Sen. Mitt Romney — joining all 50 Democrats in voting no. Republican Sen. Mike Rounds of South Dakota was absent.

Though the statement on Hyde-Smith’s website said the amendment would “hold local prosecutors accountable for refusing to prosecute violent crimes—even as the crime rate surge imperils small businesses and communities,” the text of the amendment also refers to nonviolent infractions such as vandalism and petty theft.

Experts note that prosecutors and law enforcement have always exercised discretion in which laws to enforce in which instances. Jurist Gerard Lynch writes, “This authority provides the essential underpinning to the prevailing practice of plea bargaining, and guarantees that American prosecutors are among the most powerful of public officials. It also provides a significant opportunity for leniency and mercy in a system that is frequently marked by broad and harsh criminal laws.”

Jurist Stephanos Bibas, who was appointed to a federal judgeship in 2017 by Donald Trump and confirmed by the Republican-controlled Senate on a mostly party-line vote, wrote in a 2010 article titled “The Need for Prosecutorial Discretion,” “In a world of scarcity, prosecutors are the gatekeepers who ration criminal justice. … Even in a world of unlimited resources and sane criminal codes, discretion would be essential to doing justice.”

In recent years, several localities have elected progressive prosecutors who are focusing on prioritizing serious violent crimes and not more minor infractions.

Baltimore’s city prosecutor opted to focus less on crimes like trespassing, drug possession, and prostitution during the pandemic. As homicide rates increased in many communities, the rate in her city dropped.

“A year ago, we underwent an experiment in Baltimore,” State’s Attorney Marilyn Mosby told the Washington Post in March. “What we learned in that year, and it’s so incredibly exciting, is there’s no public safety value in prosecuting these low-level offenses. These low-level offenses were being, and have been, discriminately enforced against Black and Brown people.”

Had Hyde-Smith’s amendment passed and become law, the ability to try differing approaches to law enforcement would be eliminated.

Moreover, it would have punished entire communities rather than just the prosecutors the Republicans deem objectionable.

“Under the senator’s amendment, if a district attorney decides not to charge a certain property offense, even in just one case, the whole town would lose its eligibility for federal funding under programs like the Violence Against Women Act. … or the Bulletproof Vest Grant Act to protect law enforcement in that same community,” Senate Democratic Whip Dick Durbin said.

Published with permission of The American Independent Foundation.

Josh Israel