Gov. Ron DeSantis of Florida is consistently up for a fight, apparently in hopes of seizing the mantle of Donald Trump's divisive politics. His newest opponent is Andrew Warren, the two-time elected local prosecutor of Hillsborough County, Florida, which includes Tampa and has a population of 1.5 million, greater than that of 12 U.S. states. Warren recently joined 90 of his colleagues from across the country who asserted, in the aftermath of the Supreme Court's decision in Dobbs v. Jackson, that they would decline to prosecute people who "seek, provide, or support" abortions.
DeSantis branded Warren's statement a "blatant abuse of power," and immediately suspended and replaced him. Warren has sued the governor, alleging that his First Amendment rights have been violated. The closely watched case will be tried in November, and predicting the results is perilous. Florida law gives the governor broad removal power "for any . . . good and sufficient reason," where "the ends of justice would be best served." But with no actual case having been rejected by Warren, a court might conclude that the prosecutor was simply exercising his right of free speech.
The Supreme Court's effort to consign Roe v. Wade to the dustbin of history has opened yet another front in the culture wars, but this fissure engages new participants: locally elected prosecutors, some of whom argue that their decisions to decline abortion prosecutions are consistent with a long-established legal principle of "prosecutorial discretion."
Since the 1830s, when direct election of local prosecutors gained ascendancy, our legal system has embraced the notion that these lawyers are best positioned to exercise sound judgment in handling their cases. They frequently determine who to charge, how cases should be tried and prosecuted, and what sentences a defendant will serve if convicted. The ultimate backstop to this system rests with local citizens, who, in 45 of the 50 states, can vote out chief prosecutors whose decisions run counter to the views of the community they serve. Only three states — Alaska, Delaware and Rhode Island — do not provide for local prosecutorial discretion; in those, the state controls prosecutions.
New prosecutors, new policies
The Dobbs case has merely accelerated the rifts between so-called progressive prosecutors and conservative lawmakers. While much of the prosecutorial resistance to Dobbs has emerged in states where abortion rights are already protected, it also includes local prosecutors in what might be described as blue communities within red states, such as New Orleans, Charlotte, Nashville, San Antonio, Jackson, Mississippi (home to the clinic that was the focus in Dobbs), and De Kalb County, Georgia. Increasing prosecutorial independence is not merely about abortion issues but includes new responses to everything from drug offenses to the death penalty.
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When prosecutors eager to appear "tough on crime" were pushing incarceration of more and more people for ever longer periods, they were rarely second-guessed. But as public attitudes have changed and prosecutors have been elected on platforms promising criminal justice reform and an end to mass incarceration, a backlash has developed in conservative statehouses. Lawmakers in many such states are now trying to undermine prosecutorial decisions through executive orders and legislation, much like they are trying to preempt the actions of local governments with which they disagree.
When prosecutors were pushing incarceration of more and more people for ever longer sentences, they were rarely second-guessed. But as more have been elected promising criminal justice reform, a backlash has developed.
Attorneys call this "supersession," but that's just a fancy word for efforts by state legislators to nullify or constrain the independent decisions of local chief prosecutors. Virtually every state has such statutes, but their provisions differ dramatically. In Alabama and Michigan, for example, the state attorney general may intervene if they deem it "proper" to do so. In Kansas, Oklahoma, South Dakota and Wisconsin, legislatures may direct the supersession of a local prosecutor. Tennessee's legislature recently passed a bill that allows the state attorney general to seek a court order removing any local prosecutor who "peremptorily and categorically" refuses to prosecute certain criminal offenses regardless of the facts. Florida law, as mentioned above, permits direct action by the governor.
Other state laws impose greater hurdles to removing a prosecutor. Virginia allows its Office of Attorney to intervene in local criminal cases, but usually at the request of the local commonwealth's attorney. When Indiana's Republican attorney general, Todd Rokita, was asked to intervene against an Indianapolis prosecutor who opposed state abortion law, he grudgingly admitted that the General Assembly "has given prosecutors 100 percent discretion in filing criminal charges, including those regarding violations of Indiana abortion laws."
In Texas, Attorney General Ken Paxton seemingly has no legal way to prevent the Dallas County DA from refusing to prosecute those who violate some of the strongest anti-abortion legislation in the nation; a 2021 decision by the state's highest criminal court found that the state AG cannot prosecute criminal offenses without consent of the local district attorney. Instead, Republicans will have to wait for the 2023 legislative session, when they hope to pass a bill that would allow district attorneys to prosecute abortion violations that occur outside their own jurisdictions.
Battles ahead in 2023
Most state legislatures had adjourned before the Dobbs decision and the public declarations by local prosecutors, so it was too late for anti-abortion lawmakers to take action against the recalcitrant attorneys. We can expect considerable activity along those lines when the legislators reconvene in January 2023, but crafting such legislation will not be easy. The legal issues surrounding state preemption of prosecutorial discretion are challenging and complex, which means it's exceedingly likely that these conflicts will end up in court.
For whatever this is worth, the Supreme Court has consistently supported the concept of prosecutorial discretion. Where state courts have held that state attorneys general and elected prosecutors each come from different branches of government — the former from the executive branch, the latter from the judicial — issues related to the constitutional separation of powers come into play. Although a certain amount of impenetrable legal wonkery is at work here, the stakes could hardly be higher in this conflict between right-wing state lawmakers and local prosecutors charged with enforcing the laws and protecting the public. It is yet another crucial battleground in the fight for the heart and soul of America.
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