Three criminal bills filed during the current Missouri legislative session warrant attention in the City of St. Louis. Senate Bills 602 and 889 and House Bill 1900 would take away the power of voters in the City of St. Louis to elect their own prosecutor with the same discretionary prosecutorial power enjoyed by all other elected prosecutors in Missouri and would relegate to second-class status the decisions made by the first elected African-American prosecutors in St. Louis County and city.
These bills set up a peculiar political construct in which the African-American prosecutors’ exercise of prosecutorial discretionary power is subject to agreement and approval of the Missouri attorney general. These bills take power from the local elected prosecutor and give an overriding power to prosecute to the attorney general in Jefferson City. They are an expression of raw political aggression. There is no legitimate reason why the elected African-American prosecutors in St. Louis city and county should have any less prosecutorial discretion and control over criminal prosecutions than any of the other 112 elected prosecutors in Missouri.
SB 889 is targeted solely at “a city not within a county” – i.e., the City of St. Louis. SB 602 targets the City of St. Louis and counties with a population of at least 600,000; only St. Louis County and Jackson County (Kansas City) satisfy that criteria. Although HB 1900 apparently applies to the entire state, it also purports to allow the attorney general to override prosecutorial decisions in every county. In either event, the attorney general who neither resides in the local community nor was elected by the local voters to prosecute crime could second-guess and override every locally elected prosecuting attorney in the state.
The Missouri Supreme Court repeatedly has ruled that the Missouri Constitution prohibits “special laws” targeted at local jurisdictions. SB 602 and SB 889 target solely the City of St. Louis and the populous counties of St. Louis and Jackson. Therefore, SB 602 and 889 clearly violate the Missouri Constitution.
The attorney general is not a prosecuting attorney. Under current law, the attorney general can initiate a criminal prosecution only by order of the governor or a trial judge in an individual case. State law designates authority to pursue criminal prosecutions to elected county prosecutors and circuit attorneys. The law states that “the prosecuting attorney shall commence and prosecute all criminal actions in the prosecuting attorney’s county.” It states that “the circuit attorney of the City of St. Louis shall manage and conduct all criminal cases, business and proceedings of which the circuit court of the City of St. Louis shall have jurisdiction.”
The Missouri Association of Prosecuting Attorneys, which represents all 114 county prosecutors, testified in opposition to HB 1900 before the House Judiciary Committee in March. Prosecutors across the state view the idea of the attorney general as a super-prosecutor as an unprecedented attack on local prosecutorial discretion and control and just bad government.
The power vested in each elected prosecutor is immense and reflects the trust of the local community who elected the prosecutor. The Missouri Supreme Court has acknowledged that a prosecutor must “refrain from prosecuting a charge [she] knows is not supported by probable cause.” Such an obligation “necessarily requires that [s]he investigate, i.e. inquire into the matter with care and accuracy, that in each case [s]he examines the available evidence, the law and the facts, and the applicability of each to the other.” If a prosecutor loses the community’s trust, the solution is to elect a new prosecutor – not a legislative power grab.
St. Louis Circuit Attorney Kimberly Gardner is the obvious target of some legislators in Jefferson City. She is up for re-election this year. If some are concerned about Gardner’s performance, then the voters of the City of St. Louis should voice those concerns at the ballot box. Let the voters of the City of St. Louis decide how to address their own issues about local crime and punishment.
Shira Truitt is president of the Mound City Bar Association, the oldest African-American bar association west of the Mississippi River, which co-authored this piece.