Discretion Versus Supersession: Calibrating the Power Balance Between Local Prosecutors and State Officials

• Publication year: 2018

Discretion Versus Supersession: Calibrating the Power Balance Between Local Prosecutors and State Officials

Tyler Q. Yeargain

DISCRETION VERSUS SUPERSESSION: CALIBRATING THE POWER BALANCE BETWEEN LOCAL PROSECUTORS AND STATE OFFICIALS^†

ABSTRACT

Driven by shifts in public opinion, reform-minded prosecutors recently have unseated "tough-on-crime " incumbent prosecutors in local elections all across the United States. As these reformers institute more liberal prosecution policies, the "tough-on-crime" legal establishment in their states will be tempted to rely on laws allowing state officials to supersede local prosecutors.

This Comment identifies the landscape in which supersession efforts will likely take place and offers a view as to the best way to calibrate local and state decision-making on this terrain. It first reviews the range of supersession laws that presently exist in the United States. It then singles out one state's supersession regime—Pennsylvania's—as striking the right balance between local discretion and state oversight, and advocates for its adoption in other states to both preserve prosecutorial discretion and prevent illegitimate prosecutorial abuses of power.

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INTRODUCTION...............................................................................................97

I. CHANGES IN PUBLIC OPINION AND PREDICTIONS FOR THE FUTURE .. 100

A. Introduction and Overview....................................................... 100
B. Electoral Consequences of the Shift in Public Opinion............ 102
C. Predictions for the Future ........................................................ 107

II. A FIFTY-STATE SURVEY: FIVE MODELS OF PROSECUTORIAL SUPERSESSION...................................................................................110

A. States Where a State Official Can Supersede a Local Prosecutor in All Cases............................................................................... 113
B. States Where a State Official Can Supersede a Local Prosecutor When It Is in the Public Interest or in the Interest of Justice ... 116
C. States Where the State Official Can Supersede a Local Prosecutor When Requested to Do so by Either Another State Official or Members of the Public.............................................................. 118
D. States Where the State Official Can Supersede a Local Prosecutor if She Refuses to (or Does Not) Enforce the Law ..................... 121
E. States Where a Local Prosecutor Can Be Superseded with the Approval of a Court (or an Independent Commission) ............ 124
F. Summary of State Statutory Models.......................................... 125

III. THE NEED FOR PROSECUTORIAL DISCRETION AND HOW TO PROTECT
IT .......................................................................................................126

A. The Practical and Constitutional Case for Prosecutorial Discretion ................................................................................. 126
B. The Solution: An Abuse of Discretion Standard....................... 131

CONCLUSION.................................................................................................136

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INTRODUCTION

On January 14, 2017, Markeith Loyd was arrested for murdering Sade Dixon, his pregnant ex-girlfriend, and Orlando Police Lieutenant Debra Clayton.¹ A month later, Loyd was indicted by a grand jury on two counts of first-degree murder.² Aramis Ayala, the recently-elected local prosecutor in orlando, announced at a hastily arranged press conference that she would not seek the death penalty against Loyd.³ But Ayala went one step further, announcing that her office would not seek the death penalty against any defendants:

While I currently do have discretion to pursue death sentences, I have determined that doing so is not in the best interest of this community, or the best interest of justice. After careful review and consideration of the new statute, under my administration, I will not be seeking [the] death penalty in [the] cases handled in my office.⁴

Just hours after Ayala's press conference, Florida Governor Rick Scott issued an executive order reassigning Loyd's case from Ayala's office to that of Brad King,⁵ the local prosecutor for a neighboring judicial circuit known for his strong support for the death penalty.⁶ Scott relied on a century-old and rarely-used provision in Florida law allowing him to reassign cases from one state attorney to another for a "good and sufficient reason."⁷ Ayala challenged Scott's

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action in court,⁸ seeking a writ of quo warranto from the Supreme Court of Florida.⁹

The court first noted that it would apply a standard of review analogous to abuse of discretion to Scott's Executive Order.¹⁰ It then held that, because the Executive Order was based on "Ayala's blanket refusal to pursue the death penalty in any case," despite Florida law authorizing her to do so, the order was not an abuse of the Governor's discretion.¹¹ In other words, Governor Scott permissibly removed the case from Ayala's office.¹² After the ruling was handed down, Ayala agreed to pursue the death penalty in future cases.¹³

The Florida statute, Ayala's decision, and Governor Scott's response present an apt case study of the relationship between local prosecutors,¹⁴ state officials,¹⁵ and the laws that govern their interactions. Despite a near-universal acknowledgment that local prosecutors possess a great degree of discretion in deciding which cases to prosecute and which to dismiss, virtually every state has a law that empowers the supersession of local prosecutors by state officials.¹⁶ Though few of these laws have ever actually been used to supersede local

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prosecutors,¹⁷ the point remains that, as long as they are on the books, they could be used—and there is a risk that they will be used more often in the not-so-distant future. As liberal, urban communities increasingly elect reform-minded prosecutors like Ayala, the criminal justice establishment likely will use supersession with greater frequency, potentially challenging traditional notions of prosecutorial discretion and democratic accountability.

This Comment explains the shift in public opinion that has led to the election of reformist prosecutors and what this shift means practically for the balance of power between state and local officials. It then presents a broad overview of statutory regimes of supersession and advocates for the nationwide adoption of a workable standard—specifically, an abuse of discretion standard modeled on Pennsylvania's current law—that respects both prosecutorial discretion and the best interests of justice.

Part I begins by exploring recent trends in public opinion concerning criminal justice and later explains how shifting public opinion can affect the decisions made by local prosecutors. This Comment argues that, as public opinion favors criminal justice reform over the "tough-on-crime" approach that dominated from the 1960s through the 1990s, reform-minded prosecutors are more likely to be elected now than in years past, especially in liberal, urban areas. Further, this trend toward electing reformist prosecutors, who will enter office with tendencies like those of Aramis Ayala, might provoke state officials' usage of state laws enabling supersession.¹⁸

Next, Part II surveys the constitutions and statutes of all fifty states for provisions pertaining to the discretion of local prosecutors and the ability of state officials to supersede or direct them. Virtually all states have laws governing the supersession or direction of local prosecutors by state officials (or, in some rare cases, by local officials and even by members of the public) though it is exceedingly rare that these laws are ever used or studied. This Comment makes a meaningful scholastic contribution by organizing, for the first time, these constitutional and statutory provisions into five discrete categories based on common features. Within each category, these provisions are further subdivided, depending on their statutory language and state court interpretations, if available.

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Finally, Part III grapples with the problem identified in Part I and proposes a solution. It suggests the adoption of a new model governing supersession and direction to prevent the anticipated erosion of local prosecutorial discretion. Specifically, this Comment advocates for a model permitting supersession of a local prosecutor only if a court finds that her action or inaction constitutes an abuse of discretion—in other words, a modified version of Pennsylvania's supersession statute.¹⁹ This Comment argues that the principles of democratic accountability and the degree to which prosecutors and the criminal justice system are insulated from political pressure favor a model that generally defers to the discretion of local prosecutors.

I. CHANGES IN PUBLIC OPINION AND PREDICTIONS FOR THE FUTURE

To get a sense of why reform-minded candidates like Aramis Ayala are increasingly winning local prosecutorial elections, this Part begins by exploring the dramatic shift in public opinion occurring over the last fifty years. Section A briefly reviews the roots of "tough-on-crime" policies and explains why those policies have fallen out of favor in the last decade. Section B provides several case studies, focusing on various reformers elected in high-profile prosecutorial elections. This Part concludes in section C by detailing some of the early actions of these newly-elected prosecutors and the subsequent responses from the "tough-on-crime" legal establishment.

A. Introduction and Overview

Americans began to favor harsher criminal justice policies starting in the early 1960s, when crime rates first began to rise.²⁰ While some crime statistics were deliberately exaggerated for political purposes,²¹ public opinion dramatically shifted as a result. A backlash to the events of the 1960s and 1970s—including the nascent...