February 9, 2023

To: the Sponsors of House Bills 229 and 231, and Senate Bill 92, including:
Representatives Gullett of the 19th, Gaines of the 120th, Wiedower of the 121st, Hilton
of the 48th, Petrea of the 166th, Jones of the 47th, and others;
Senators Robertson of the 29th, Kennedy of the 18th, Walker III of the 20th, Cowsert
of the 46th, Brass of the 28th, and others.
RE: Legislation addressing Prosecutor Oversight and the Prosecutorial Discretion
Dear members of the Georgia General Assembly,
For at least the last three years, the State Legislature has sought to address the subject of oversight
and discipline of elected prosecutors, both District Attorneys (DAs) and Solicitors General (SGs).
In the last legislative session, HB 411 passed through the House but did not become law after
stalling with the Senate. This year, HB 229 and 231 are now pending in the current legislative
session, and the Senate is considering a similar bill, SB 92. In addition, HB 48, which seeks to
make DAs and SGs nonpartisan, is also being considered.
For reasons more thoroughly explained below, the undersigned District Attorneys, who do not
speak on behalf of the District Attorney’s Association of Georgia (DAAG), support a carefully
and properly crafted bill that creates a prosecutor oversight commission. We also believe that
prosecutorial discretion is a bedrock principle of our criminal justice system, but we disagree with
other elected prosecutors about the extent and definition of discretion.
We are not opposed to DA oversight or, more generally, scrutiny and accountability. We are
elected and, therefore, serve the State of Georgia and the citizens of our Judicial Circuits. Further,
we are aware of some actions by prior DAs and SGs that brought about these proposed Bills, and
we do not condone those actions. It does not appear that current measures of oversight were
sufficient in dealing with some of those issues. However, as with any government bureaucracy,
we are concerned an oversight commission could abuse its power, particularly in partisan or
politically motivated ways. It is no coincidence that many of the undersigned DAs also favor the
bill making elected prosecutors non-partisan.
One of our major concerns is that we believe it is necessary to have an attorney with experience as
an elected district attorney on the investigative panel. District Attorneys and Solicitors General
have a unique, demanding, and difficult job. Someone who has, not only experience as a
prosecutor, but as an elected DA, brings a certain wisdom and practical experience to such a panel.
HB 231 goes a long way to addressing this concern by mandating the following people will serve
on the investigative panel: “one attorney with prosecutorial experience as an elected district
attorney shall be appointed by the Governor” and “one former district attorney or former solicitor
general shall be appointed by the Senate Committee on Assignments.” This language in HB 231
was added after a number of the below signed DAs met with some of the legislators sponsoring
these bills. We greatly appreciate their willingness to meet with us, listen to us, and address our
concerns.
It has been pointed out that Judges are subject to the Judicial Qualifications Commission, but DAs
and SGs do not have a similar disciplinary commission. While this is true, it is important to note
there are important differences between the role of a judge and a prosecutor. Judges are the
“referee” to most legal disputes. It is inappropriate for them to take a side. However, prosecutors
represent the State of Georgia in criminal cases and, therefore, are a party to every criminal case.
We take seriously the need to seek justice in every case, but our role is not as a neutral arbiter.
For example, if a judge dismisses a case, it often involves no discretion on the part of the judge. It
is a decision based on the law not an opinion. However, when a prosecutor makes the just and right
decision that there is insufficient evidence to proceed, that is inherently a judgment call based on
the facts and circumstances of that case. This is because the role of a prosecutor involves difficult
decisions, which are often second-guessed in good faith and in bad faith. We know this and accept
this responsibility. However, difficult judgment calls on specific cases should not be subject to
disciplinary scrutiny. Proper use of prosecutorial discretion must be protected for prosecutors to
do their difficult job and protect the people we serve.
Our reading of HB 231 and SB 92 does appropriately protect prosecutors by limiting when the
commission can even “entertain a complaint” (lines 183-195 in HB 231 and lines 165-178 in SB
92). It is important that any proposed oversight commission include such limitations so as to
protect prosecutorial discretion.
While we respect those who disagree, we, the undersigned do not believe HB 231 and SB 92 limit
a prosecutor’s discretion when reviewing and making a prosecution decision in individual cases.
We must maintain the ability and authority to make a prosecutorial decision on each matter before
us based on the facts and circumstances of that specific case. HB 229 seeks to include this duty in
the statutory duties of DAs and SGs, and the undersigned support defining prosecutorial discretion
to require individual case review.
Prosecutorial decisions include seeking to indict, filing an accusation, recommending a certain
sentence, seeking to dismiss some but not all charges, dismissing the entire case, seeking to place
the case into a diversion program or accountability court, and numerous other possible outcomes.
There may also be situations where an office declines to prosecute a specific case because it does
not have the resources to handle that case based on its unique circumstances. The undersigned
strongly believe all of these decisions are appropriate uses of prosecutorial discretion.
However, we believe there is a difference between prosecutorial discretion and prosecutorial veto.
Prosecutors are not legislatures. We do not create laws. We seek justice for violations of Georgia’s
laws. We believe prosecutors that decline to enforce a provision of law or an entire body of law
go too far. This is not appropriate prosecutorial discretion because there is no consideration as to
the facts and circumstances of the specific case.
HB 229 merely reflects the long-standing duty of a prosecutor to assess each case on its merits.
Over a century ago, the Georgia Supreme Court stated that a prosecutor “is to determine whether
or not to commence a particular prosecution, or to discontinue one already begun. If it be not for
the public interest to punish the doer where the law is but technically violated, he shall forbear the
prosecution.” Hicks v. Brantley, 102 Ga. 264 (1897) (emphasis added). We believe the
prosecutor’s duty to make case-by-case decisions predates these proposed bills.
The Supreme Court, in the above cited case, went on to say that the “prosecutions which [the
prosecutor] inaugurates are by the people in the name of the State. He is controlled by the public
interests, and while these interests require the conviction of the guilty, they forbid that of the
innocent.” Id. We add this because it points out that DAs and SGs represent the State of Georgia.
Our system of government does not give one person the ability to, unilaterally and without legal
process, negate entire bodies of duly enacted law.
The undersigned District Attorneys write this letter to share our perspective and our support. We
are all available to you in whatever ways you think might be helpful. Please reach out to any of us.
We look forward to continuing to work with Georgia’s lawmakers towards the common goal of
keeping our communities safe.
Sincerely,
/s/ Chase Studstill /s/ Bert Poston__________ /s/ Tim Vaughn______
Alapaha Judicial Circuit Conasauga Judicial Circuit Oconee Judicial Circuit
Atkinson, Berrien, Clinch, Murray & Whitfield Bleckley, Dodge,
Cook, & Lanier Counties Counties Montgomery, Pulaski,
Telfair, & Wheeler
/s/ Randy McGinley__ /s/ Herb Cranford_____ Counties
Alcovy Judicial Circuit Coweta Judicial Circuit
Walton & Newton Coweta, Carroll, Troup, /s/ Daphne Totten______
Counties Meriwether, & Heard Ogeechee Judicial Circuit
Counties Bulloch, Effingham,
/s/ Billy J. Nelson, Jr.____ Jenkins, & Screven
Atlantic Judicial Circuit /s/ Marie Broder_____ Counties
Bryan, Evans, Liberty, Griffin Judicial Circuit
Long, McIntosh, & Fayette, Spalding, Pike, & /s/ R. Vic McNease___
Tattnall Counties Upson Counties Pataula Judicial Circuit
Clay, Early, Miller,
/s/ Susan Treadaway_____ /s/ Chris Arnt___________ Quitman, Randolph,
Blue Ridge Judicial Circuit Lookout Mountain Judicial Seminole, & Terrell
Cherokee County Circuit Counties
Dade, Catoosa, Chattooga,
/s/ Keith Higgins________ & Walker Counties /s/ Matt Rollins_______
Brunswick Judicial Circuit Paulding Judicial Circuit
Appling, Camden, Glynn, /s/ Wright Barksdale____ Paulding County
Jeff Davis, & Wayne Ocmulgee Judicial Circuit
Counties Morgan, Greene, Jasper, /s/ Joe Mulholland___
Putnam, Jones, Baldwin, South Georgia Judicial
/s/ Samir Patel_________ Wilkinson, & Hancock Circuit
Cherokee Judicial Circuit Counties Decatur, Grady, Mitchell,
Bartow & Gordon Calhoun, & Baker Counties
Counties
/s/ Brad Shealy________
Southern Judicial Circuit
Brooks, Colquitt, Echols,
Lowndes, & Thomas
Counties
/s/ Jack Browning_______
Tallapoosa Judicial Circuit
Polk & Haralson Counties
Cc:
Tasha Mosley
President
District Attorney’s
Association of Georgia
/s/ Bryce Johnson__ /s/ Marilyn Bennett_____
Tifton Judicial Circuit Waycross Judicial Circuit
Irwin, Tift, Turner, & Bacon, Brantley, Charlton,
Worth Counties Coffee, Pierce, & Ware
Counties
/s/ Bill Doupe________
Toombs Judicial Circuit
Glascock, Lincoln,
McDuffie, Taliaferro,
Warren, & Wilkes
Counties

Charles Brooks
President
Solicitor General’s
Association of Georgia

Pete Skandalakis
Executive Director
Prosecuting Attorney’s
Council

Office of the Governor

Office of the Lt. Governor

Office of the Attorney

General