October 12, 2022

Dobbs and Trump Bring Focus to Prosecutorial Discretion

David J. Toscano Attorney, former Charlottesville, Mayor and Virginia State Delegate

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.” Robert H. Jackson, former Associate Justice of the U.S. Supreme Court, April 1, 1940

 U.S. Attorney General Merrick Garland will shortly decide whether to indict Donald J. Trump for one or an array of federal criminal offenses. The country is rightly focused on this case, but similar decisions are made every day by thousands of local prosecutors in counties and cities across this nation about whether to charge persons for crimes. And, just like Garland, the decisions made by these local attorneys are coming under increasing political scrutiny and criticism, mostly from elected officials in conservative states. It is yet another battleground in the fight for the heart and soul of America.

The power of local prosecutors to decide whether and how to proceed in any given case is a long-established principle in American law. Known as “prosecutorial discretion,” it is built on the idea that these local lawyers are best positioned to exercise sound judgment in handling their cases while being respectful of community standards. The ultimate backstop to this system rests with local citizens, who, in all but five states, can vote out chief prosecutors whose decisions do not reflect the views of the community they serve. Direct election of public prosecutors, and their accompanying discretion, has been the tradition in our system since the 1830s and is unique among the western democracies. Only three states--Alaska, Delaware, and Rhode Island— do not provide for local prosecutorial discretion; in those, the state controls prosecutions.

New Prosecutors and New Policies 

When prosecutors were putting more people in jail for longer periods of time, law-and-order types were content to let them operate independently. Rarely were they second-guessed, if only because the legal profession has considered prosecutorial discretion the norm and a foundation of our criminal justice system. But recently, prosecutors throughout the country began to change their approach. Public attitudes increasingly questioned whether incarceration was always the best response to certain types of crime, and newly elected local prosecutors adopted new approaches reflecting this community sentiment.

Prosecutors in Baltimore stopped prosecuting shoplifting and marijuana crimes. Prosecutors in St. Louis chose not to pursue cases that arose from recent political protests. In Portland, prosecutors would not press trespassing offenses. Some smaller jurisdictions followed suit, drawing the ire of the law-and-order types who control state legislatures, especially in Republican areas. Lawmakers in these states are now seeking to undermine prosecutorial decisions through executive orders and legislation, much like they are preempting the actions of local governments with which they disagree. Attorneys call this “supersession,” but it is just another word to describe efforts by state lawmakers to nullify the decisions of local chief prosecutors and exercise greater power over them.

These actions are proving effective. When a prosecutor in Orlando, Florida announced that she would no longer seek the death penalty, then-Governor Rick Scott responded by reassigning death-penalty-eligible cases to another prosecutor. In 2019, Pennsylvania’s Republican-controlled state legislature, in a move targeting Philadelphia district attorney and long-time reformist Larry Krasner for his aggressive prosecution of firearms offenses in Philadelphia, passed legislation to allow the state’s attorney general to take control of these violations in that city — and nowhere else in the state. And Tennessee’s legislature recently passed a bill that allows the state’s 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.

Dobbs Introduces More Controversy

The U.S. Supreme Court decision in Dobbs v. Jackson has supercharged (and complicated) the debate, as state lawmakers now confront local prosecutors who have pledged not to prosecute women and doctors who violate the plethora of new state laws restricting abortion. Immediately upon the decision in Dobbs, 89 district attorneys and attorneys general published a joint letter declining to prosecute people who “seek, provide, or support” abortions. Many of the signers were from states where access to abortion is already protected. But it also included local prosecutors from places like Orleans Parish, Louisiana, San Antonio, Texas, De Kalb County, Georgia, Jackson, Mississippi (home to the clinic that was the focus in Dobbs), and Nashville, Tennessee, all located in states controlled by abortion opponents. Their rationales differed. One prosecutor cited her office’s limited resources, stating that she will focus on “serious violent crime. . .  rather than potentially investigate women and doctors for medical decisions.” Others have emphasized their opposition to state policies that prohibit abortions under any circumstances.

Predictably, conservative state lawmakers have fought back. When Tampa Bay prosecutor Andrew Warren announced he would refrain from prosecuting women who violate Florida’s new 15-week ban on abortion, Governor Ron DeSantis went apoplectic, suspending the district attorney for a “blatant abuse of power.” Warren has since sued the state, alleging that his first amendment rights had been violated. Predicting the victor in this case is not easy. Florida law makes it easy for the governor, giving him 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 is simply exercising protected speech.

Despite widespread consensus that local prosecutors have broad discretion in deciding which cases to prosecute and which to dismiss, virtually every state has laws that permit their removal by state officials. The process differs dramatically by state. In Alabama, all that is required is for the attorney general to deem removal to be “proper.” Similarly, Michigan case law states that the state’s attorney general can intervene “in any criminal proceedings in the state.” North Dakota allows “twenty-five taxpaying citizens” of a jurisdiction to request the attorney general to intervene. Kansas, Oklahoma, South Dakota, and Wisconsin allow their legislatures to direct the supersession of a local prosecutor.

State Law Vary

Other state laws impose greater hurdles to supersession. When Indianapolis District Attorney Ryan Mears stated his opposition to prosecuting abortion, the state’s Republican attorney general, Todd Rokita, grudgingly admitted that the General Assembly “has given prosecutors 100 percent discretion in filing criminal charges, including those regarding violations of Indiana abortion laws.” A similar situation exists in Texas, which has some of the strongest anti-abortion legislation in the country. A 2021 decision by Texas's highest criminal court found that the state’s attorney general is precluded from prosecuting criminal offenses without consent of the local district attorney. Hence, when the District Attorney of Dallas County, a jurisdiction of 2.6 million, joined colleagues from other large jurisdictions in stating that he would not pursue criminal charges related to abortion procedures, Attorney General Ken Paxton was left without an easy legal remedy. Instead, Republicans will have to wait for the 2023 legislative session, when they hope to pass a bill to allow district attorneys to prosecute abortion violations that occur outside of their jurisdictions.

Most state legislatures are not presently in session but expect considerable activity when they reconvene in January 2023. Much of it will involve political posturing, and crafting legislation will not be easy. The legal principles surrounding state preemption of prosecutorial discretion are thorny, issues are complex, and the stakes are high in this struggle between state lawmakers and the attorneys who are charged at the local level with enforcing the laws and protecting the public.

Prosecutorial Dilemmas

The prosecutor in our American legal system occupies a unique and powerful position. Many people believe that his or her role is to put people in jail. But while it is true that they work with law enforcement agencies to investigate and hold people accountable for violating the law, their primary role is to pursue justice. This is an ethical imperative of the job and something that distinguishes them from most others in the legal community. It requires them to exercise judgment at every stage of a case—from investigation and charging to adjudication and sentencing—all the while balancing a locality’s values, the principle of “equality under the law,” and an understanding of how his or her legal actions promotes accountability in a fair and equitable fashion. We can see this in the abortion context. With Roe now in the rearview mirror, many prosecutors are faced with draconian state laws that do not square with community standards. On the one hand, principles of the “rule of law” suggest enforcement of all statutes, independent of how objectionable they might be. If prosecutors decline to act, they risk criticism for becoming de facto policy makers, typically a legislative function. Yet a community only has so many resources, and discretion suggests independent judgment. To further complicate matters, is it proper for a prosecutor to announce in advance a decision to refrain from pressing any charges for certain categories of cases? For some, prosecutorial refusals that apply to entire categories of criminal charges or defendants are improper and illegitimate encroachments on legislative enactments. At the same time, announcing such a position in advance, which the 89 prosecutors did in their open letter about abortion, supports the notion of equality under the law, i.e., similar cases are all being treated the same. These are not easy issues to resolve.

Those who argue for easier supersession have similar dilemmas. The U.S. Supreme Court has consistently supported the concept of prosecutorial discretion, and various state supreme courts have held that state attorneys general are part of the executive, a branch of government distinct from district attorneys. This raises serious separation of powers issues. Should members of the executive be permitted to curtail the independence of prosecutors without their consent? For legislatures, the question is similar; should legislators be allowed to force an independently elected official from a separate branch to act contrary to what he or she defines as a constitutional duty or ethical imperative? Politics, of course, oozes into these deliberations, which makes them even harder to judge.

A Balanced Approach Standard

In the present political environment, these issues are not going away. And arguments suggesting that supersession makes no sense because prosecutors can always be removed by the voters are not sufficiently strong to prevent further efforts to restrain their authority. We should not expect state lawmakers to shy away from opportunities to score political points at the expense of prosecutorial discretion. All we can hope for is a better standard that recognizes supersession under certain circumstances but preserves the integrity of prosecutorial discretion. One commentator suggests that a reasonable approach is found in Pennsylvania, where statutes allow prosecutors to set their priorities and exercise their judgment but applies to them the same standard as is typically reserved for overruling the decision of a trial judge—the abuse of discretion. To invoke supersession, an attorney general must prove to a judge that a local attorney has “failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.” Applying this standard in most states would better balance the exercise of prosecutorial discretion against the need for action in cases of misconduct and impropriety.

Our faith in democratic institutions has suffered greatly in recent years, partly due to the perception that they are being politicized for political gain. Any decision Merrick Garland makes will be greeted by partisan outcry; witness the remarks of House Republican Leader Kevin McCarthy threatening to investigate the Department of Justice and telling the attorney general to “clear your calendar.” But these ominous trends are also emerging in states, as lawmakers seek to overrule local prosecutors and their exercise of discretion over who and how they will prosecute. How these issues are resolved will affect how Americans view their criminal justice system in the decades ahead.

David J. Toscano is an attorney in Charlottesville, Virginia. He is a former Mayor and served 14 years in Virginia’s House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.



Criminal Justice, Reproductive Rights, State Attorneys General