Karl Racine is the D.C. attorney general. Beth McCann is the district attorney for Denver. Miriam Aroni Krinsky is the executive director for Fair and Just Prosecution.
This March, Florida State Attorney Aramis Ayala announced that she would not seek the death penalty in any case before her office. Instead, Ayala said she would revisit the issue if the chaotic circumstances surrounding Florida’s death penalty — recently struck down twice — changed.
Florida Gov. Rick Scott (R) didn’t approve, so he unilaterally reassigned about two dozen homicide cases from her jurisdiction to a state attorney known for his death penalty advocacy.
Now the two are facing off at the Florida Supreme Court in what has become just the latest constitutional crisis in our country with potentially dire consequences for our criminal-justice system. At stake is the authority of elected prosecutors to make decisions about how to handle their criminal cases. A decision in the case may come as soon as this week.
Scott argues that he gets the authority for this unprecedented move from a statute that has historically been used for consensual reassignments.
But that statute does not cover the impartial, reasoned, entirely appropriate exercise of discretionary decision-making that Ayala engaged in here. The governor has no authority under any statute or the Florida Constitution to usurp Ayala’s prosecutorial autonomy, which comes directly from the constitution. The governor admitted as much when he previously said that only voters could remove an elected public defender found to have violated ethics rules.
That is why we, along with dozens of former prosecutors and judges, including four former Florida Supreme Court justices and two former U.S. solicitors general, joined in an amicus brief urging the court to protect prosecutorial independence and reject the governor’s attempt to override a duly elected state attorney’s exercise of discretion.
Ayala was overwhelmingly elected to serve Orange and Osceola counties. She made her decision after weighing the heinousness of the crimes, the lack of deterrent value in pursuing the death penalty, the best interests of victims and their family members, and the millions of dollars needed to reach execution, concluding that death penalty prosecutions were not in the best interest of her community.
This was a transparent and reasoned exercise of her discretion as an elected prosecutor. Legislatures establish the crimes that can be prosecuted and the range of punishments sought. But it is the locally elected prosecutors who must decide which prosecutions and punishments to pursue. These decisions are an inherent part of the independent exercise of prosecutorial autonomy — decisions that must be free from political or executive intrusion.
Prosecutors can’t prosecute every crime and must determine fair, smart and consistent ways to employ limited resources. Examples of blanket pleading, charging and sentencing decisions — inherent in the independent autonomy and exercise of discretion by elected district and state attorneys — arise every day.
As a case in point, New York’s Manhattan district attorney, Cyrus Vance Jr., announced last month that his office would no longer prosecute turnstile jumping. In this blanket announcement, which ends prosecution of about 20,000 low-level offenders annually, Vance made a reasoned decision that, in his mind, best advanced public safety and accounted for inherently limited prosecutorial resources.
All prosecutors make decisions based on the local community’s challenges and needs. In Houston, Harris County District Attorney Kim Ogg recently put in place expansive policies to divert certain marijuana users, avoiding the human and fiscal cost of criminalizing drug addiction. In Chicago, Cook County State’s Attorney Kim Foxx has changed charging practices for certain theft offenses, in an effort to dramatically reduce the number of incarcerated individuals in her county.
And Ayala’s decision on the death penalty is not without precedent. Locke Bell, the district attorney for Gaston County, N.C., made a similar announcement on how his office would handle these cases. Denver District Attorney Beth McCann (one of the authors of this piece) announced in her campaign this year that she would not seek the death penalty and was elected with more than 70 percent of the vote. Larry Krasner, the presumptive next district attorney of Philadelphia, has also made that pledge. This is the essence of prosecutorial discretion.
What Florida’s governor has done deprives local voters of their right to choose a state attorney who aligns with their values. Indeed, one poll found that a majority of Orange and Osceola county voters support life imprisonment over the death penalty. If these voters do not like how the state attorney is using her discretion, they can choose a different representative in the next election.
Preserving prosecutorial independence does not mean that everyone will like or agree with every decision. But the governor’s decision, if left unchecked, could fundamentally subvert the independence of prosecutors to pursue justice — and that is a dangerous place to be.