The legal fight between Florida Governor Ron DeSantis and suspended state attorney Andrew Warren is set to test local prosecutors’ ability to decline to bring cases. Warren is suing the governor for violating his First Amendment rights by suspending him for political speech and related political conduct after he refused to enforce anti-abortion laws. A federal district court dismissed Warren’s lawsuit in January, but Warren has petitioned the Florida Supreme Court to order his reinstatement. The Eleventh Circuit case, set for oral arguments on 2 May, will also examine the issue of prosecutorial discretion.
Similar tensions between prosecutors and state officials are playing out nationwide over issues beyond abortion restrictions. Republican-majority state legislatures, including Georgia’s statehouse, have taken action to rein in progressive-leaning prosecutors who show leniency or opt not to enforce crimes such as personal possession of marijuana or low-level shoplifting.
Texas and other states are considering similar legislation this year. At the same time, Philadelphia District Attorney Larry Krasner continues to challenge his impeachment last year when the Pennsylvania legislature’s GOP majority accused him of failing to address violent crime.
Carissa Byrne Hessick, a professor focused on criminal law at the University of North Carolina at Chapel Hill, said the expanding scrutiny is driven partly by state officials’ concerns about crime and partly by political considerations. For the governors and state legislators challenging prosecutors publicly, “it’s a convenient thing for them to do to sort of burnish their law-and-order credentials,” she said.
Warren was one of over 100 state attorneys, prosecutors, and attorneys general who signed a statement vowing not to prosecute abortions after the US Supreme Court overturned the constitutional right to abortion in Dobbs v. Jackson Women’s Health. The statement, released by the local prosecutors’ network Fair and Just Prosecution on 24 June 2022, said signatories had a responsibility to “refrain from using limited criminal legal system resources to criminalize personal medical decisions.”
Joshua Rosenthal, an attorney with the legal advocacy group Public Rights Project, said the district court “found that Ron DeSantis removed Andrew Warren because of his statements about abortion, gender-affirming care, and his purported affiliation with George Soros and his affiliation with the Democratic Party. All of those are clearly First Amendment activities.”
The Eleventh Circuit case hinges largely on how courts apply First Amendment protections for government employees but also strikes at the issue of prosecutorial discretion. Warren argues he was within his authority as a prosecutor to make decisions prioritizing which kinds of cases to pursue and allocating the limited resources of the prosecutor’s office. DeSantis argues Warren’s blanket refusal to enforce an entire category of Florida statutes amounts to a veto of that law within the prosecutor’s district, overriding the state legislature’s role.
Ohio Attorney General Dave Yost, whose office led an amicus brief signed by 15 states supporting DeSantis’ position in the Eleventh Circuit, said: “An executive officer executes the laws. They don’t make them. That’s the oath we take as executive officers and prosecutors.” While the First Amendment protects speech, it doesn’t shield a government employee from discipline if they announce they won’t do their job, he added.
Hessick said there has historically been a misconception that state attorneys are akin to clerks or administrative staff handling the paperwork to pursue criminal charges without much decision-making authority. The fact that they don’t bring charges in every case “is incredibly well established, and it happens every single day, probably in every prosecutor’s office across the country,” she said. “Most people in the public don’t know that; they don’t appreciate that.”
In Georgia, legislation is headed to Governor Brian Kemp’s desk to create a prosecutor oversight commission, while in Texas, a series of bills are being considered, including one that would make adopting blanket nonenforcement policies an offense for which prosecutors can be removed from office.
The role of prosecutors in the criminal justice system is now at the center of a culture war, with progressive prosecutors facing increasing scrutiny from conservative state officials. State officials are using these confrontations to showcase their commitment to law and order, framing their actions as necessary to maintain public safety and uphold the rule of law.
The case between Warren and DeSantis is not just about the First Amendment rights of government employees but also raises important questions about the boundaries of prosecutorial discretion. Warren argues that as a prosecutor, he has the authority to prioritize certain cases and allocate the limited resources of his office. On the other hand, DeSantis contends that Warren’s refusal to enforce a category of Florida statutes goes beyond prosecutorial discretion and nullifies laws passed by the state legislature.
Ohio Attorney General Dave Yost, who supports DeSantis’ position, emphasizes that an executive officer’s role is to execute laws, not make them. Yost argues that while the First Amendment protects speech, it does not shield government employees from discipline if they refuse to fulfill their duties. He likens a prosecutor promising to veto a law through inaction to a soldier advocating disobedience to the chain of command.
The outcome of this legal battle will have broader implications for prosecutors across the country. Prosecutors are entrusted with the authority to make charging decisions, weighing the evidence, the interests of justice, and the available resources. It is a fundamental aspect of their role to exercise discretion in deciding which cases to pursue.
However, conservative state officials argue that leniency or selective enforcement by progressive prosecutors undermines the rule of law and compromises public safety. They contend that prosecutors should not be able to unilaterally impose their personal policy preferences or disregard laws duly enacted by the legislature.
The tensions between prosecutors and state officials reflect the deep divisions in American society and the politicization of criminal justice issues. Prosecutors, particularly those with progressive agendas, find themselves at the center of the ideological battle between different visions of justice and law enforcement.
As the scrutiny of prosecutors continues to grow, it is crucial to recognize the complexity of their role and the need for a balanced approach. Prosecutorial discretion has long been recognized as an essential component of the criminal justice system, allowing prosecutors to prioritize cases and apply the law fairly and efficiently.
Ultimately, the outcome of the Warren v. DeSantis case and similar legal battles across the country will shape the future of prosecutorial discretion and the boundaries of political influence over the criminal justice system. It is a critical moment that will define the extent to which prosecutors can exercise their discretion and the degree of accountability they face in carrying out their duties.
