The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
How Can Florida Gov. DeSantis Suspend Elected Prosecutor for Refusing to Enforce Certain Criminal Laws?
Gov. Ron DeSantis has suspended Tampa-area elected state prosecutor Andrew Warren (see this executive order, and this article in the Tampa Bay Times [Lawrence Mower]) for "neglect of duty." The core of DeSantis's stated basis seemed to be this:
- DeSantis cited Warren's having "publicly proclaimed in writing that he will not prosecute individuals who provide abortions in violation of Florida's criminal laws to protect the life of the unborn child."
- DeSantis cited Warren's having "acted as a law unto himself by instituting a policy during his current term of presumptive non-enforcement for certain criminal violations, including trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution."
- DeSantis also cited Warren's having publicly "pledge[d] to use our discretion and not promote the criminalization of gender-affirming healthcare or trans gender people," but acknowledged that "the Florida Legislature has not enacted such criminal laws." DeSantis therefore didn't argue that this pledge itself was neglect of duty, but argued that it "prove[s] that Warren thinks he has authority to defy the Florida Legislature and nullify in his jurisdiction criminal laws with which he disagrees" and that this "fundamentally flawed and lawless understanding of his duties as a state attorney" led to his non-enforcement policy as to "trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution."
This helps show how varied executive government structures are in various jurisdictions in our country. In the federal system, of course, the President can generally fire any local U.S. Attorney, because the President is the one elected federal executive official who is in charge of the other executive officials. (There are some complications related to specially-appointed independent federal prosecutors, but that's a minor feature of the system.) In many states, on the other hand, prosecutors are elected by local voters and are basically answerable just to them. And in some other states, there's something of a mix, and indeed that seems to be the situation under the Florida Constitution, art. IV, sec. 7:
(a) By executive order stating the grounds …, the governor may suspend from office any state officer not subject to impeachment, … or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor.
(b) The senate may, in proceedings prescribed by law, remove from office or reinstate the suspended official and for such purpose the senate may be convened in special session by its president or by a majority of its membership….
Of course, one could argue that "neglect of duty" doesn't include a prosecutor's exercise of discretion not to enforce certain kinds of laws, but that too is a question of state law. And under State v. Allen (Fla. 1937), prosecutors can indeed be suspended for categorical refusal to enforce certain laws:
The suspension of relator is grounded solely on "neglect of duty in office," one of the grounds named in Section Fifteen of Article Four of the Constitution. It is supported by allegation to the effect that in 1934 and 1935, gambling in Hillsborough County reached its peak, that in 1934 only seven informations were filed by relator charging gambling in said county, and that in 1935, no informations were filed by him charging gambling, that two of the informations filed in 1934 resulted from raids on the Panama Cafe requested by C. Jay Hardee in which gambling was seen carried on by the said C. Jay Hardee and the sheriff and his deputies, that no trials have been held under any of these informations and the reason given therefor by the solicitor was that the evidence in support of them was procured without a search warrant and was consequently not admissible….
The charge made for suspension was one named in the Constitution, to knowingly permit gambling and prefer no charges therefor was a neglect of duty, and the allegations with reference to gambling certainly had some reasonable relation to the charge made against the solicitor.
That, the court held, was a sufficient basis for the suspension, though it would be up to the state senate to consider whether the prosecutor was guilty:
We express no opinion as to the weight or sufficiency of anything of an evidentiary nature in the order of suspension. This and the range the evidence may take under the charge are matters for the Senate with which we are without power to interfere.
I expect the same would apply as to a non-enforcement pledge even before any opportunity to enforce the law comes up, since I take it that one important duty of a prosecutor's office is to deter future crime, something that won't happen when the prosecutor pledges not to prosecute the crime.
I in turn express no opinion as to which sort of relationship between the head of the state (or federal) Executive Branch and individual prosecutors is best: the federal, the Florida, or that in other states. But it does appear that Florida law contemplates the governor suspending prosecutors for refusing to enforce certain laws, or even for substantially underenforcing them.
