New Iowa law will politicize criminal prosecutions

Dr. Thomas Laehn is the Greene County attorney and the only Libertarian to hold an elective partisan office in Iowa. The Des Moines Register published an earlier version of this commentary.

After virtually no meaningful debate and only a single, relatively inconsequential amendment, both chambers of our Republican-controlled legislature approved Governor Kim Reynolds’ massive state government reorganization plan (Senate File 514) within a two-week period. Reynolds signed the bill on April 4.

Unsurprisingly, the new law—which originated in the executive branch—will transfer significant power from the legislature to the governor. Sadly, in both Washington, DC and Des Moines, our legislators (regardless of their party affiliation) have regularly displayed far greater loyalty to their party than to the constitutional system of separated powers to which they swore their allegiance upon assuming office.

While I am thus entirely unsurprised by our Republican legislators’ abdication of their constitutional responsibilities, I am deeply disappointed at their willingness to subvert the local administration of justice in our state in the process. Ironically, the political party that has always claimed to defend local government against those who would otherwise centralize power is systematically stripping our local elected officials—including our county auditors, school boards, and county attorneys—of their discretion.

While Senate File 514 may have much to commend it, buried in the 1,512-page bill—which I suspect very few of our legislators actually read—is a provision that will fundamentally change the way crime is prosecuted in our state. Section 2047 (on page 1,058) empowers “[t]he attorney general … [to] prosecute a criminal proceeding on behalf of the state even if a county attorney does not request the attorney general to act.”

For the first time, our state’s attorney general now has express authorization to take over a local criminal prosecution without an invitation from the local county attorney. This marks a radical departure from the historical practice in our state.

For three reasons, all Iowans should be greatly distressed at this revolution in our criminal justice system.

First, section 2047 undermines local control over the prosecution of crime. Previously, the people of each county elected their respective county attorneys and expected them to exercise their judgment in accordance with local values and sensibilities. The people of a county have considerable control over the identity of their county attorney but very little control over who is elected attorney general (and even less control over the appointment of the assistant attorneys general, who prosecute cases on the attorney general’s behalf). 

Four years ago, the current Greene County Treasurer defeated her predecessor by a single vote. At the local level, a single voter can determine the outcome of an election, promoting the responsiveness of municipal officials to their electorates. In order to ensure that the administration of justice is under meaningful popular control, the decision to initiate or to discontinue a prosecution must be made at the local level by our state’s county attorneys. However, with the enactment of Senate File 514, this decision-making authority has now been centralized in Des Moines.

Second, section 2047 will needlessly politicize criminal prosecutions in our state. Do we want a criminal justice system in which every defendant, defense attorney, lobbyist, or wealthy party donor can ask the attorney general to take over a criminal case being prosecuted at the local level? What if a major donor to the attorney general’s own re-election campaign asks the attorney general to intervene in a case simply to dismiss it once double jeopardy has attached, thereby preventing the defendant from ever being brought to justice for his or her crimes?

The passage of Senate File 514 creates opportunities for corruption in our criminal justice system that did not previously exist. Even if the attorney general were to execute his or her duties impartially, some situations may leave citizens wondering whether the attorney general intervened in a case, or chose not to intervene in a case, for personal or political reasons.

Indeed, due to the huge number of criminal prosecutions pending in our state at any given time, it will be impossible for the attorney general to apply politically neutral criteria when determining which cases to wrest from the control of local prosecutors. There can be no doubt such power will be exercised mainly when the attorney general deems it politically expedient to do so.

Finally, while certain Republicans in the statehouse appear to believe section 2047 was necessary to check rogue county attorneys, there were already remedies under the law to ensure that county attorneys were faithfully fulfilling their statutory duties. In addition to being subject to quadrennial elections, county attorneys can be removed from office at any time pursuant to Iowa Code Chapter 66. That code section gives both the attorney general and a county’s voters the authority to petition for the removal of a county attorney for various reasons, including corruption, extortion, willful misconduct, or the “willful or habitual neglect or refusal to perform the duties of the office.”

If a county attorney were failing to perform his or her duties, he or she was already subject to removal. There was no need to overthrow our criminal justice system, in which justice had been administered at the local level and prosecutors were under direct popular control, to guard against malfeasance in office by our local county attorneys.

The concentration of prosecutorial power in the attorney general’s office will undermine the political accountability of our state’s county attorneys by making them subservient to the attorney general, rather than to the people who elected them. It will politicize the prosecution of crime in our state by allowing the attorney general to pick and choose which cases to prosecute based on personal, partisan, or political considerations. And it will do these things to address an alleged problem for which Iowa law already provided adequate remedies.

Top photo of Dr. Thomas Laehn provided by the author and published with permission.

About the Author(s)

Thomas Laehn