NC budget would add political pressure to prosecutors not to dismiss charges against protesters

North Carolina lawmakers want to use a new state budget proposal to increase political pressure on prosecutors not to dismiss charges against people arrested at protests — or even to offer them plea deals.

House Republicans filed their 2024 budget proposal Monday night, passed it through committees on Tuesday and plan to vote on it Wednesday. Beyond proposing how to spend $31.8 billion in state revenue, the budget bill also contains elements that have nothing to do with fiscal policy.

That has been a common theme of state budgets in recent years, which have also limited the power of the governor’s office, shrouded state legislative records in further levels of secrecy and given sheriffs more power over the investigations into jail inmates who die in their custody.

One of the non-budget changes included in this new budget proposal lists a number of crimes, including rioting and disorderly conduct, that are among those typically used to charge protesters.

Any time a prosecutor makes a plea deal or dismisses a charge involving any crime on that list, the proposed new law would require, that prosecutor would have to write a detailed explanation why.

That written report would then be sent to the local elected district attorney and top law enforcement leaders.

The proposed law would also ban prosecutors from telling the police that they dismissed charges because the police didn’t have enough evidence that a crime had been committed: “General explanations such as ‘interests of justice’ or ‘insufficient evidence’ are not sufficiently detailed to meet the requirements of this section,” the law would read, if the budget passes.

The proposed change stems from police officers who have regularly expressed frustration — particularly during the 2020 Black Lives Matter protests against police brutality — that many of the people they had been arresting were coming back and continuing to protest, and that prosecutors were letting the protesters off too easy.

It was backed at the legislature by Rep. Carson Smith, R-Pender, who was the Pender County sheriff before joining the legislature in 2019.

Other efforts to stem protests

The changes in the budget are just the latest in a string of efforts by the Republican-led General Assembly to crack down on protests that block traffic or result in property damage.

In 2021 state lawmakers proposed making it easier for police to charge protesters with felony rioting charges, even if they didn’t personally engage in violence or property destruction themselves. That proposal also would’ve made it so that anyone charged with rioting could be kept in jail for two days before being given the chance to post bail and be released.

Democratic Gov. Roy Cooper vetoed that bill, and at the time Democrats had enough votes to protect his veto and block the bill from becoming law.

Republicans tried again in 2023, after they gained veto-proof supermajorities in both chambers. That time the riot changes did become law, but with slightly different rules. For instance, protesters charged under that new law can be held for 24 hours without bail, rather than 48 hours.

Supporters said it was necessary to enforce order, which might in turn make it easier for peaceful protesters to march on their own terms.

“Whenever bricks are getting thrown at law enforcement officers, whenever our communities are getting damaged by violent actors, that causes harm to these folks who want to protest safely,” said Sen. Danny Britt, R-Robeson, during a 2023 debate over the bill.

Critics said it was a clear attempt to scare people away from ever going to a protest in the first place — for fear that if even a few people in a crowd of hundreds committed an act of vandalism, the new rules would hypothetically allow police to arrest everyone in the crowd, charge them with felonies, and keep them jailed without bail.

Responding to criticism that the law was racially and politically motivated, Republicans said the rules would apply to everyone equally.

House Speaker Tim Moore said during a 2023 debate over the bill that the harsher penalties it proposed could apply just as easily to Black Lives Matter protesters who smashed windows in downtown Raleigh in the summer of 2020 as to supporters of former Republican President Donald Trump who attacked police and stormed the U.S. Capitol on Jan. 6, 2021.

“Sometimes peaceful protests are loud,” Moore said at the time. “Sometimes they’re not so polite. But that’s fine. The First Amendment allows that. … But what we can’t do is allow that to be twisted into something where folks can go out and damage property, assault individuals.”

That anti-rioting law passed over Cooper’s veto in 2023. Then earlier this month Republican lawmakers voted to ramp up criminal penalties against protesters who block roads or who, in some cases, wear masks to the demonstrations. Cooper is expected to veto that bill as well, but Republicans still hold a veto-proof supermajority.

The 2023 law is being challenged as an unconstitutional First Amendment violation by the American Civil Liberties Union; the 2024 bill could face similar lawsuits if it becomes law.