Stripping elected officials of power only undermines voters

Stripping elected officials of power only undermines voters
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Last Thursday, the Florida Supreme Court disenfranchised the will of the citizens of Orange and Osceola counties. It’s unclear what the value of the ballot is when elected representatives cannot fully perform the duties of their office. 

Aramis Ayala, Florida’s first and only elected African-American prosecutor, was chosen to be the Orange-Osceola state attorney by a strong majority. Florida Gov. Rick Scott’s decision to remove 30 homicide cases from Ayala after she said she would not pursue the death penalty, and the court’s decision to deny the state attorney’s petition raises significant questions about prosecutors’ authority as elected officials and their capacity to use their discretion to fulfill the responsibilities of their office. 


Days after Ayala was sworn in, Markeith Loyd allegedly murdered a police lieutenant while he was being pursued as a suspect for murdering his pregnant girlfriend. Faced with the Loyd case and about a half dozen other murder cases, Ayala decided that it made more sense to seek life without parole rather than the death penalty going forward.


Following Ayala’s announcement, Scott removed some of her potentially capital cases. Additionally, the Florida Legislature cut $1.3 million from her budget and reduced her staff by 21 people. Florida Solicitor General Amit Agarwal argued that these actions are justified because Ayala refused to uphold state law, and is circumventing the will of the governor and State Legislature. But Florida state law exists to protect the will of the people and does not mandate capital punishment for any case.     

Ayala’s decision was grounded in the law and an appreciation for the responsibilities of her new office. Florida’s law on the application of the death penalty had been unclear. In 2016, the U.S. Supreme Court ruled Florida’s statute unconstitutional because a judge, not a jury, had the authority to decide whether to sentence an individual to death — and the Florida Supreme Court twice found it unconstitutional. The death penalty is now operating under a new law signed in March of this year.

Ayala also expressed concern because the evidence indicates that the death penalty does not improve public safety, in particular for law enforcement officers, and rarely provides closure for the families of victims. What does exist, as Ayala noted, is proof of the death penalty’s extreme cost that takes away from other public safety efforts.

Defending the particulars of Ayala’s decision, however, misses the forest for the trees. What’s really at stake here goes beyond whether people convicted of homicide in Orange and Osceola counties will be eligible for the death penalty, as the decision impacts the fate of all prosecutors who are democratically elected. Ayala’s discretion has been severely restricted and the will of her constituents undermined. And in this case, a powerful reform agenda has been undercut.

“This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions,” states the dissent.

Ayala, indeed, considered both the facts and how best to use the limited resources of her office, as within her discretion. State and local prosecutors face these considerations every day; these considerations have led prosecutors across the country to exercise their discretion and to make decisions to no longer prosecute financially-related traffic crimes, marijuana cases and theft of services, for example. What does this decision — and the inflated power it grants to an outside executive — say about how prosecutors can use their discretion to optimize their offices’ use of resources and build a more equitable and effective system?

Much has been made of the fact that Ayala didn’t campaign on a platform against capital punishment — but she did run as a reform prosecutor and as a former defense attorney. It is fair to say that her constituents understood the type of person and prosecutor they were electing, as evident in their continued support of her.

An April poll, in fact, showed that over 60 percent of her constituents support a life sentence over the death penalty. And based on the court’s decision, it would not have mattered if Ayala campaigned on an anti-death penalty platform. The residents of Osceola and Orange counties entrusted Ayala to use her judgment in exercising prosecutorial discretion. People voted for someone who was going to increase the transparency and fairness of the State Attorney’s Office.

So why is Ayala being prevented from fully doing the job she was elected to do?

Ayala fulfilled her responsibility as a duly elected official, demonstrating transparency to her constituents and accountability for her decision. Denying Ayala’s petition undermines the justice system and subverts the will of those to whom she is accountable.

Elected officials have a legal and moral responsibility to act on behalf of their constituents. Prosecutors around the nation are using their legal and electoral discretion to decide whether and how to prosecute cases. The governor’s executive order and the Florida Supreme Court’s ruling compromises this fundamental responsibility and the mandate of prosecutors to follow the will of their constituents through the trusted use of their discretion.

As Justice Barbara J. Pariente authored in the dissent, “The Governor’s decision in this case fundamentally undermines the constitutional role of duly elected State Attorneys.”

Meg Reiss is the executive director of Institute for Innovation in Prosecution at John Jay College of Criminal Justice.