Academic journal article Emory Law Journal

Discretion versus Supersession: Calibrating the Power Balance between Local Prosecutors and State Officials †

Academic journal article Emory Law Journal

Discretion versus Supersession: Calibrating the Power Balance between Local Prosecutors and State Officials †

Article excerpt


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 rarelyused 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 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 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-sodistant 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 ofjustice.

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. …

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