North Carolina GOP Is Trying to Corner Prosecutors Into Charging Protesters

North Carolina Republicans are smooth operators. They often manage to insert a far right agenda into legislation, without exhibiting the same theatrics as many of their Deep South neighbors. The state’s Republicans haven’t proposed siccing bounty hunters on drag shows, for instance, nor have they passed laws that display a hostility for the Constitution as blatant or gleeful as Louisiana’s new diktat requiring public school classrooms to display the Ten Commandments. Mark Robinson — a MAGA star, Holocaust denier and North Carolina gubernatorial frontrunner — is bucking this trend, but otherwise, the state’s rightward lurch in recent years has happened with relatively little scrutiny. When North Carolina’s Republican lawmakers try to demolish basic civil liberties, they do so with a chisel, not a hammer.

But in the dark, dirty coal mine of the far right’s national agenda, North Carolina bills are often little canaries. After all, it was the North Carolina GOP that pushed the absurd independent state legislature theory all the way from the fringes to the Supreme Court. And then, of course, there was HB 2 — the infamous bathroom bill — which sparked a massive wave of backlash when it debuted in 2016, but has since become the blueprint for anti-trans legislation across the country.

Now, North Carolina Republicans have slipped a new troubling nugget into their latest budget proposal. Amid mass demonstrations against Israel’s genocide in Gaza, including high-profile protests at the University of North Carolina at Chapel Hill, lawmakers are attempting to crack down on district attorneys who exercise leniency in cases against protesters.

Under the new provision, prosecutors would be required to submit detailed explanations for any decision to dismiss “civil disorder” cases or reduce defendants’ charges. This includes a report of the defendant’s prior convictions, a state database check and a “list of those elements” of the case that the prosecutor believes can or cannot be proved. “Interests of justice” and “insufficient evidence” are not adequate grounds to dismiss a case, the budget bill says, and the written report must be submitted to the head of the police department that charged the protester. Unsurprisingly, such a requirement does not exist if the prosecutor chooses to pursue more punitive measures.

While increased government transparency is usually a positive development, it’s clear that’s not the aim of this proposal. “The changes in the budget are the latest in a string of efforts by North Carolina’s Republican-led General Assembly, backed by police, to crack down on protests,” wrote Progress NC Action, an advocacy group, on X.

Similar reports are common for driving while impaired charges, but it’s the first time the practice has been proposed for civil disorder cases, Lorrin Freeman, the district attorney for Wake County, North Carolina, told a local news station. “I think it projects a message, at least from that side of the street that, they expect that these offenses will be prosecuted to the fullest extent,” Freeman said. “You see in a number of different states where legislative bodies have come in and started to try to impact prosecutorial discretion.”

Indeed, this proposal cleverly combines two of the right’s current cause célèbres into a single bill: cracking down on protests and attacking reform-minded prosecutors.

Since 2019, Republicans have introduced dozens of bills in at least 17 states that aim to undermine the power of district attorneys who attempt criminal legal reforms. In the vast majority of states, these prosecutors are democratically elected officials, and such efforts to strip them of authority — or recall them entirely — run contrary to the expressed will of the people.

If prosecutors are discouraged from dismissing these cases, then the police officers making arrests would have far more influence over what happens to the protesters.

A 2023 report from the Local Solutions Support Center and the Public Rights Project notes how prosecutors have historically exercised “significant discretion to decide whether to bring charges, the severity of the charges, whether to request bail, the terms of any plea deal to someone charged with an offense, and the requested sentence.” Many prosecutors have used this discretion to “further punitive measures” and make decisions that fuel mass incarceration. The push to elect reform prosecutors has only gained significant ground in recent years, and of course, Republicans did not attempt to infringe on district attorneys’ discretion until reform-minded ones began taking office.

Meanwhile, recent years have seen a rash of laws targeting the right to protest at both the state and federal level. Legislation began heating up in response to demonstrations against oil and gas pipelines and the 2020 uprising for Black lives. But this push has intensified in recent months as protesters have turned out en masse to call on the Biden administration to end its support for the genocidal war in Gaza and demand that universities divest from Israel. In the past few months, Congress has proposed disqualifying certain student protesters from federal financial aid, revoking the visas of foreign students arrested for protesting, barring federal funds from universities that don’t clear protest camps, and more.

It’s worth noting that some Democratic officials have also recently backed anti-protest proposals. After North Carolina lawmakers introduced the “Unmasking Mobs and Criminals” bill in May, a response to pro-Palestine protesters wearing masks to evade surveillance and doxxing, New York Gov. Kathy Hochul and New York City Mayor Eric Adams both spoke out in favor of banning masks in the city’s subways.

North Carolina’s budget bill is unlikely to pass in its current iteration, as it lacks support in the state Senate. But the proposal is yet another disturbing development in the reactionary wave of criminalization and repression that has swept across the country in recent years.

Under North Carolina law, both misdemeanors and felonies are grouped under the civil disorder umbrella. This means that the bill would apply, for instance, to protesters arrested for making a “rude or riotous noise” near a public building. In the past, North Carolina prosecutors have offered first-time “offenders” brought on nonviolent charges the option to dismiss their civil disorder cases in exchange for community service.

If prosecutors are discouraged from dismissing these cases, then the police officers making arrests would have far more influence over what happens to the protesters. For instance, last year, the New York City Police Department (NYPD) pursued bloated domestic terrorism charges against several New Yorkers who hopped on the subway tracks during a protest against the murder of Jordan Neely, but the Manhattan DA’s Office later dropped those charges.

We saw in 2020 how police indiscriminately terrorized protesters by staging mass arrests at Black Lives Matter rallies and marches; more than 90 percent of those charges against protesters were either dropped, dismissed or never filed. Last year, New York agreed to pay out more than $13 million in a settlement after thousands of protesters brought a class-action lawsuit against the NYPD over its brutal conduct in 2020. “Attorneys with the National Lawyers Guild, which represented the plaintiffs in New York, accused NYPD leaders of depriving protesters of their first amendment rights through a ‘coordinated’ campaign of indiscriminate brutality and unlawful arrests,” wrote The Guardian.

Even if this North Carolina budget bill fails, it reveals an insidious new strategy for pushing prosecutors to throw the book at protesters amid a nationwide push to quell dissent. Anyone who cares about civil rights should take heed. Let’s hope other Republican lawmakers don’t.