Florida Supreme Court Allows DeSantis to Undermine Prosecutorial Independence 

Florida’s high court recently upheld Gov. Ron DeSantis’s suspension of an elected prosecutor — one of numerous instances around the country where reformist prosecutors have been targeted by other branches of government who oppose their policies. The prosecutors ran promising to use the discretion of their office in order to help reduce an overreliance on overly punitive prosecutorial practices that seek excessive and unnecessary custodial sentences.

In August 2023, DeSantis, a Republican, issued an executive order suspending Democratic prosecutor Monique Worrell, who was elected in 2020 with 66 percent of the vote to represent the state’s Ninth Judicial Circuit, which serves Orange and Osceola counties, home to Orlando. DeSantis accused Worrell of “neglect of duty” and “incompetence” and relied on a provision of the Florida Constitution that permits the governor to suspend “any state officer not subject to impeachment” on such grounds.

Specifically, DeSantis’s order alleged that Worrell had neglected her prosecutorial duties by declining to seek mandatory minimum sentences for drug trafficking and gun crimes. The order cited statistics indicating that Worrell had obtained mandatory minimum sentences in just 3 of 96 drug trafficking cases and 1 of 58 cases of robbery with a firearm referred to her office by the Osceola County sheriff. DeSantis also alleged that Worrell did not prioritize incarceration for juvenile offenders, pedophiles, and others.

At the time of the suspension, Worrell was the only Black woman serving as a state attorney in Florida. The state has 20 “state attorneys,” or elected prosecutors with a state constitutional duty to represent the state in cases arising out of their respective circuits.

In general, prosecutors possess broad discretion over whether and how to charge those arrested, based not only on the evidence law enforcement presents them but also on finite office resources. No office can prosecute every case presented to them. Evidence may be weak — for example, evidentiary problems that diminish the likelihood of a guilty verdict may cause a prosecutor to drop a firearm charge that carries a mandatory prison sentence. An office also may not have enough staff, or it may be in the interest of justice or in the interest of the specific community to pursue diversionary efforts rather than the most punitive sentence.

Prosecutors of all political stripes routinely reduce, increase, or dismiss charges based on a variety of factors. And these issues may all lead to different offices adopting larger policy priorities specific to their jurisdiction and responsive to the needs of their constituents. In a large and diverse state like Florida, different circuits will invariably present state attorneys with different challenges that may require a range of considerations and approaches to prosecution. DeSantis’s suspension of Worrell upends this understanding by questioning the day-to-day decisions of an elected prosecutor.

Worrell asked the Florida Supreme Court to reinstate her, arguing that the allegations in the suspension order are “impermissibly vague” and that her conduct falls within her “lawful exercise of prosecutorial discretion.”

In a 6–1 ruling in June, the Florida Supreme Court declined to do so. Although it conceded that prosecutors lawfully hold wide discretion over who and what to charge, the court wrote that “prosecutorial discretion is no complete defense to an allegation of incompetence or dereliction of duty.” The court also found that such discretion is not at issue, because the allegations DeSantis made are not about discretion that is exercised in individual cases but rather about policies that resulted in categorical decisions not to prosecute certain types of cases.

Ultimately, the court construed its role narrowly, based on a long-accepted rule in Florida that the allegations in the executive order of suspension are sufficient if they bear some reasonable relation to the claim. DeSantis’s executive order “provides various factual allegations that reasonably relate to” the grounds of suspension, the court said.

Justice Jorge Labarga dissented, underscoring the gravity of removing an elected official from office who is “not subject to impeachment.” Labarga wrote that the “bedrock of our democracy is the right to elect our public officials in fair and open elections.” A high standard of due process should have applied, he argued, requiring specific facts to support the allegation of neglect of duty or incompetence, rather than vague and indefinite allegations about general office policies. The “official in question should be apprised of the specific allegations giving rise to the suspension to ensure an opportunity to mount a meaningful defense,” Labarga wrote.

Such high stakes may be the reason why historically many suspended officials in Florida have held unelected offices and were suspended only after they had independently been charged with a crime. DeSantis, by contrast, has suspended two elected prosecutors, an elected sheriff, and an elections supervisor, all based on job performance.

The other prosecutor DeSantis suspended was Tampa chief prosecutor Andrew Warren in 2022. DeSantis removed Warren for his pledge to not pursue charges under new state laws criminalizing abortion and gender transition treatments, as well as policies not to prosecute some low-level crimes.

The Florida Supreme Court last year rejected a petition by Warren asking it to reinstate him, holding that he took too long to file the request. The U.S. Court of Appeals for the 11th Circuit this year held DeSantis’s suspension of Warren was motivated by activities protected by the First Amendment and remanded back to the district court to consider whether DeSantis “would have made the same decision based solely on . . . unprotected activities.”

Florida is not the only state where prosecutorial discretion is under attack. This month, a lower court in Georgia refused to block a commission the legislature created to discipline and remove local prosecutors. The plaintiffs, a bipartisan group of prosecutors, argued that the oversight body undermines prosecutorial independence, which, they said, “is necessary to advance public safety, promote justice, and protect local democracy.” Philadelphia District Attorney Larry Krasner’s challenge to his 2022 impeachment by the state house of representatives for pursuing criminal justice reform policies is pending before the Pennsylvania high court. And in Texas, the governor signed a bill into law last year making it easier to remove elected prosecutors. Now, an effort to do just that to Travis County District Attorney José Garza for “official misconduct” in response to his office’s charging policies is moving forward in a lower court.

Both Warren and Worrell are running in this fall’s election to win back their jobs in Florida. Regardless of the outcome of those races, the high court’s refusal to reverse their suspensions reflects a troubling trend: lawmakers and other state officials seeking to undermine or remove elected prosecutors whose policy choices they disagree with.

Lauren-Brooke Eisen is the senior director of the Brennan Center’s Justice Program.

Ram Subramanian is the managing director of the Brennan Center’s Justice Program.

Suggested Citation: Lauren-Brooke Eisen & Ram Subramanian, Florida Supreme Court Allows DeSantis to Undermine Prosecutorial Independence, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 13, 2024), https://statecourtreport.org/our-work/analysis-opinion/florida-supreme-court-allows-desantis-undermine-prosecutorial.