Tag Archives: prosecutorial discretion

State-Level Autocracy

If you resist believing that today’s GOP is intent upon replacing democracy with autocracy– controlled, of course, by the GOP–you need only look at what they are doing in the states. 

One person, one vote? How old-fashioned!

Efforts to negate the popular vote have moved way beyond gerrymandering. In Wisconsin, Republicans are exploring ways to undo the election of a state Supreme Court Justice who won by eleven points. Texas’ lunatic legislature has passed a different set of rules for cities populated by “those people,” who tend to vote Democrat. 

And then, of course, there’s Ron DeFascists’ Florida, where folks who voted for their local prosecutor can wake up to find that the governor has summarily dismissed their electoral choice. The Brennan Center (link unavailable) recently focused on his latest arbitrary and undemocratic dismissal of a popularly elected official.

In 2020, Monique Worrell was elected to serve as the prosecutor for the Orlando area. She’d campaigned on a reform platform that evidently was too “woke” for DeSantis, who proceeded to suspend her from office for “neglect of duty and incompetence.”  Worrell has filed suit in the Florida Supreme Court challenging her suspension.

Worrell’s lawsuit is one of a number of current state court cases that raise important constitutional questions about the scope of prosecutorial discretion — the power of prosecutors to decide when and how to charge crimes, seek bail or sentencing enhancements, or make other decisions about how they pursue cases. It’s an issue receiving scrutiny across the country, with laws recently enacted in Georgia and Texas authorizing prosecutors’ removal for certain uses of discretion.

The Florida Constitution authorizes the governor to suspend prosecutors like Worrell for specified reasons, including neglect of duty or incompetence. In her lawsuit, Worrell argues that DeSantis failed to allege any conduct meeting that constitutional standard.

Worrell’s office had no policy or practice of failing to enforce certain laws, and her charging decisions were well within the bounds of what most lawyers consider to be proper prosecutorial discretion. Policy differences between a local prosecutor and a governor are not legal grounds for suspension. 

This isn’t the first time DeSantis has targeted an elected local prosecutor. In 2022, he suspended Tampa-area prosecutor Andrew Warren, citing pledges he signed not to prosecute certain types of cases, including those related to abortion and gender-affirming health care.

A federal court ruled that Warren’s suspension violated both the Florida Constitution and the First Amendment, but the court held that it lacked the authority to reinstate him. The Florida Supreme Court — which would have the authority to overturn the governor’s suspension — then rejected a petition from Warren filed six months after his suspension after concluding he had waited too long to file. Worrell’s petition, filed less than a month after her suspension, will likely force the state high court to directly consider the relationship between the governor and local prosecutors in implementing criminal justice policy.

Similar issues are pending in other state supreme courts. In Pennsylvania, Philadelphia District Attorney Larry Krasner is challenging his 2022 impeachment by the state house of representatives, arguing that his exercise of discretion did not constitute “misbehavior in office.”  Georgia prosecutors are challenging a law imposing new limits on their discretion and creating new mechanisms to remove them from office. In Arizona, taking his cue from  Republicans, the state’s Democratic governor stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer that power to the state attorney general, who has vowed not to enforce it. 

These autocratic exercises significantly undercut democracy.

According to the New York Times, Ms. Worrell had been elected with 66% of the vote, and she released data showing that her prosecution rate was similar to that of two of her predecessors. Whether her performance was unsatisfactory was a question for the voters–not the Governor–to decide.

DeSantis justified her removal by citing several offenders who had committed crimes after serving their (presumably insufficient) sentences, or while out on bail; Ms. Worrell responded by pointing out that examples cited by the governor involved factors beyond a prosecutor’s control. Sentences and bonds are set by judges who are free to overrule prosecutors’ recommendations.

And she said that much of the information that was used to build a case against her came from local law enforcement officials who oppose her because she has prosecuted police officers, including one who shot an unarmed person.

“My message has been consistently, whether you’re a Democrat or Republican, whether you like me or you hate me: Democracy is under attack,” she said. “Duly elected officials should not be removed by elected officials who are not politically aligned with them.”

Autocrats-R-Us disagree. 

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Indiana’s Supermajority–Ignoring Citizens Again

Where to start?

The Indiana Lawyer describes the issue: 

Despite opposition from nearly all of the organizations and individuals who testified, a bill that would allow the attorney general to appoint a special prosecutor over certain cases that a local prosecutor declines to prosecute has advanced out of an Indiana Senate committee.

Senate Bill 436, authored by Rep. Mike Young, R-Indianapolis, passed out of the Senate Corrections and Criminal Law Committee on Tuesday with a 6-3 vote. Young, who chairs the committee, did not receive any Democratic support for his bill, and one Republican also voted against the measure.

Calling the legislation a response to “social justice prosecuting,” Young said his bill would allow the Office of the Attorney General to appoint a special prosecutor only if a local elected prosecutor “has announced as a matter of policy that the prosecuting attorney will not enforce all or part of a criminal statute enacted by the General Assembly,” or if “the attorney general has determined that a prosecuting attorney has categorically elected not to enforce all or part of a criminal statute enacted by the General Assembly.”

Mike Young’s sponsorship is the first clue that this is a terrible bill; Young has spent his considerable amount of time in Indiana’s legislature as a committed “culture warrior” and general pain in the you-know-where. The second clue comes from the fact that every single person who testified at the committee hearing opposed the measure.

Organizations ranging from the American Civil Liberties Union of Indiana to the Indiana Prosecuting Attorneys Council (IPAC) were among those testifying against SB 436.

The former director of IPAC shared the organization’s opposition to the bill’s attack on prosecutorial discretion, pointing out that voters regularly respond to prosecutorial decisions they don’t agree with by voting elected prosecutors out of office. (Every four years, voters eject around a third of Indiana’s prosecutors.) A representative of the Public Defenders Council agreed that the bill abrogated voters’ rights.

What prompted this legislative over-reach?

Much of Wednesday’s testimony focused on the recent decision by Marion County Prosecutor Ryan Mears to no longer prosecute cases of simple possession of marijuana. In announcing that decision in September — about a week before he was appointed by county Democrats to succeed former Prosecutor Terry Curry — Mears said the Marion County Prosecutor’s Office should be devoting its resources to the violent crime in Indianapolis.

Young’s bill would deny county prosecutors the discretion to direct limited resources to the most serious threats to public safety. Once again, it would substitute the judgements of state-level lawmakers for those of local officials chosen by the people they serve.

One of the measure’s most egregious insults to local control was language requiring  counties in which the attorney general has overruled the local prosecutor to reimburse the attorney general for the expenses of prosecuting the case. As Doug Masson put it in his blog post on the bill,

The guest that nobody invited and nobody wanted is going to send you a bill for his presence. The AG just sends the bill to the Auditor who is required to pay the bill out of the general fund within 30 days, without appropriation. Because, screw your budget.

Despite the uniform opposition to the bill, it passed out of committee. Here is the vote breakdown:

Yeas:
Sen. Mike Young
Sen. Susan Glick
Sen. Mike Bohacek
Sen. Justin Busch
Sen. Aaron Freeman
Sen. Jack Sandlin

Nays:
Sen. Karen Tallian
Sen. Lonnie Randolph
Sen. Eric Koch

If one of the “yeas” represents you, I’d suggest a call or email letting that person know that he or she should not rely on your vote in the next election.

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Rallying for a Plea Bargain

Update. Since posting this, I’ve been informed that the purpose of the Rally is to argue for dismissal of the charges–not a plea bargain. Bei Bei takes the (eminently reasonable) position that she should not be branded a felon. As one of the commenters has pointed out, this is the sort of case that does a real disservice to the cause of both criminal justice and mental health, by conflating the two. Did this young woman make a very bad decision? Yes. Did that decision harm both her and her unborn child? Yes. But those facts , without more, do not suffice to prove a crime. 

The case of Bei Bei–the young Asian woman who is being prosecuted for murdering her unborn baby–raises a number of questions.

The facts that are known are relatively simple: A young woman, pregnant and deserted by her lover, took rat poison in an apparent suicide attempt. She left a note for the faithless lover, saying she was killing herself and their child. She lived, but her baby died. The prosecutor charged her with murder, and refused to reconsider that charge even after an expert witness testified in a hearing that the still birth of the baby could not be proved to have been a result of the poison.

The case has become a high-profile cause for womens’ rights groups, who have (correctly, in my view) pointed out that a prosecution on these facts runs the risk of “criminalizing pregnancy,” and setting a dangerous precedent; it threatens to identify pregnant women as a separate and unequal class of citizen and to discourage pregnant women from seeking health care for depression or drug addiction.  They have held rallies in an effort to pressure the prosecutor into dropping the case, or at least plea bargaining for a lesser charge.

This Saturday, at the City Market at two, there will be another rally.

There are a lot of unanswered questions about this case, which has become a very high-profile debate about both the exercise of prosecutorial discretion and the propriety of conducting a criminal defense in the media.

I have a lot of respect for Marion County Prosecutor Terry Curry, but–unless he knows something about the facts of this case that he has not revealed–I can’t understand his decision to spend public resources pursuing this case. The purpose of the criminal justice system is public safety. (I know that a good portion of the electorate prefers a different, more punitive approach–make the bad guys suffer!–but the Indiana Constitution sets a more measured goal.) This young woman presents no threat to the public. She is highly unlikely to be a repeat offender. She’s a troubled individual who made a very bad choice; is punishing that bad choice really where we want to spend our officials’ time and the public’s money?

It is unfortunate that this case has been so highly publicized; perhaps if the media had paid less attention to it, the prosecution would have felt more comfortable resolving it short of trial. But here we are. So the national organizations that have come to Bei Bei’s defense have announced Saturday’s rally, presumably in hopes of pressuring the prosecutor to reconsider. I think it is more likely that the additional publicity will simply harden his resolve, but I recognize the need to draw public attention to the policy question that is at the heart of this case: how should the prosecutor exercise his discretion?

What makes us safe?

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