Bill targeting prosecutorial discretion has massive loophole

The state Capitol on March 16, 2020. (Erik Schelzig, Tennessee Journal)

House and Senate Republicans are charging ahead with a bill aimed at Nashville District Attorney Glenn Funk for refusing to prosecute certain crimes, like possession of small amounts of marijuana or refusing to post signs warning about transgender people being to use bathrooms of their choosing.

Under the bill advancing Thursday, the courts could be petitioned by the state attorney general to insert a special prosecutor to bring charges in cases where a locally elected prosecutor “categorically” refuses to do so without considering the facts in each case.

Supporters say the bill does nothing to prevent a prosecutor from declining to bring charges in individual cases based on a variety of factors like lack of evidence, a bad police search, or even a plea agreement.

But the legislation doesn’t appear to have clear handle on how the issue could be forced if someone like Funk were to say, “Fine, we won’t categorically rule out prosecutions,” and then promptly decline to bring charges in any of the relevant cases.

The fact is that no prosecutor around the state has the resources to bring charges in every single instance of minor drug possession. And the price tag for requiring them to so would likely be prohibitive. So, Republicans upset that the Democratic district attorney in Nashville is happily thumbing his nose at them want to seek retribution through legislation.

But the likeliest outcome is some slight variations in what he says. Either that, or Funk simply continues to thumb his nose at GOP lawmakers. He is up for re-election in August, after all.


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