Governor DeSantis vs. Prosecutorial Discretion

UPDATE: The Florida Supreme Court heard oral arguments on December 6, 2023, in Worell v. Desantis, a case about the extent of Gov. Ron DeSantis’s authority to removed an elected prosecutor. 

In 2020, Monique Worrell won election to serve as the prosecutor for the Orlando area, campaigning on a reform platform that sought to reduce the number of people facing harsh sentences. Last month, Florida Gov. Ron DeSantis suspended her from office for “neglect of duty and incompetence,” citing her purportedly lenient approach to charging and sentencing. This month, Worrell 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. To begin with, his suspension order provides no evidence, she argues, that her office had any policy or practice of failing to enforce certain laws.

Regardless, Worrell contends that her actions were well within the bounds of her discretion as a prosecutor — and that a policy difference between her and the governor is no legal ground to suspend her. “Ms. Worrell was elected to serve as State Attorney, not the Governor,” the lawsuit notes. Disagreement about “where within the lawful range of discretion that discretion should be exercised falls far short of the constitutionally required showing of neglect of duty or incompetence.”

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 also 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.” (You can read more about that case in a State Court Report piece from this summer.) And in California, the union representing deputy district attorneys in the office of Los Angeles DA George Gascón is challenging Gascón’s policy not to seek sentencing enhancements under California’s three-strikes law. The case raises separation of powers questions about the legislature’s authority to curtail local prosecutors (and was previewed in another State Court Report piece). At the trial level, Georgia prosecutors are challenging a law imposing new limits on their discretion and creating new mechanisms to remove them from office.

It’s worth noting that while most of these efforts have targeted criminal justice reform–oriented prosecutors, the question of who gets to decide whether and how to charge crimes can cut in different directions. In Arizona, for example, the state’s Democratic governor recently stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer power to the state attorney general, who has vowed not to enforce it. Look for more cases to come.

Alicia Bannon is the editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.