“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”
There has recently been increased recognition that prosecutors are the most powerful actors in the criminal justice system. Fordham Law professor John Pfaff argues that prosecutors are also primarily responsible for the phenonomenon of mass incarceration. Whether due to political realities, stasis, or the nature of the adversary system itself, prosecutors have traditionally argued for lengthy sentences of incarceration regardless of the costs to society. Additionally, prosecutors possess great discretion but are rarely held accountable for their actions, except potentially by the voters.
Around the country a new wave of reform-minded prosecutors has begun to win elections. These candidates resist traditional appeals to “law and order” or locking up criminals and throwing away the key. Instead, this new breed of prosecutors are more responsive to the communities they serve. They recognize that incarceration is expensive and does little to change behavior positively. Once elected, these reform prosecutors are willing to work with other actors in the criminal justice system to implement policies designed for better outcomes.
Florida has lagged behind other states when it comes to criminal justice reform. Our legislature has done little to stem the tide of inmates entering the system or to provide rehabilitation to them while incarcerated. Though significant reforms must be accomplished in the legislature, many genuine and positive changes can be accomplished at the local level by state attorneys.
The 20 elected State Attorneys are constitutional officers with enormous power in their respective judicial circuits. In 2016, three candidates who ran on explicit reform platforms unseated incumbents who had been criticized for harsh policies. Aramis Ayala in the 9th Circuit (Orlando), Melissa Nelson in the 4th Circuit (Jacksonville) and Andrew Warren in the 13th Circuit (Tampa) have each made significant changes to their offices in the short time since their election. However, in other circuits, long-time incumbents continue to oppose even modest reform efforts. Additionally, the Florida Prosecuting Attorneys Association has proven to be a significant roadblock to reform bills in the legislature.
In 2020, 19 of Florida’s 20 State Attorneys will be up for election. With criminal justice reform issues taking on increased importance, voters in 2020 will have an opportunity to evaluate a candidate’s approach to the justice system. If Floridians want meaningful criminal justice reform, we will have to elect State Attorneys who are committed to reform policies. To have that opportunity we need to start the process of identifying those candidates and those issues that will lead to electing better State Attorneys in Florida.
Article V, Section 17 of the Florida Constitution, requires that a State Attorney be elected for a four-year term in each judicial circuit. Chapter 27 of the Florida Statutes govern their powers and responsibilities. The Florida Rules of Criminal Procedure provide additional requirements and guidance for prosecutors. Practically speaking, much of the power of the State Attorney comes from custom, tradition, and the personality of the office holder. Policies may vary widely among the judicial circuits depending on the mandates of the elected state attorneys, and this affects the rate of incarceration from each circuit.
Perhaps the most important power vested in Florida prosecutors is the charging decision. Grand juries are required and typically used only in first degree murder cases. All other charging decisions are made by assistant state attorneys. Florida’s Criminal Punishment code bases sentencing recommendations on a scoresheet whose points are based on the charges. Other laws establish minimum mandatory penalties if certain allegations are made and proven. Still other laws require sentencing enhancements if the prosecutor elects to charge the defendant as a habitual offender or prison releasee reoffender. Once the prosecutor files charges in a case, his or her decision can severely circumscribe the ability of judges to fashion appropriate sentences. Day to day in the courts of Florida, prosecutors control most plea bargains and sentences.
At the local level the State Attorney influences many aspects of the day-to-day operations of the judicial circuit. The court calendar, trial scheduling and discovery deadlines are all established only after significant input from the prosecutor. Most counties and circuits maintain criminal justice or public safety commissions that set local criminal justice policy. State Attorneys tend to have significant influence at these commissions. Finally it bears noting that the State Attorneys Office is a pipeline to the judiciary. In many circuits more than half the judiciary has prosecutorial experience.
Elected State Attorneys and their assistants are generally not held accountable for their misdeeds. Trial courts are reluctant to impose sanctions even for egregious misconduct. Appellate courts have developed doctrines such as “harmless error” or “failure to preserve,” which incentivizes misbehavior. Theoretically lawyers who work for the State Attorneys office are accountable to the Florida Bar. In reality prosecutors rarely face sanctions for unethical or abusive behaviors. The best way to hold elected officials accountable is at the ballot box.
Additionally, the Florida Prosecuting Attorneys Association has significant influence over legislative policy. Led by longtime lobbyist Buddy Jacobs, the FPPA prides itself on standing in the way of reform efforts. Jacobs, who has served for nearly 50 years, has opposed “safety valves” for minimum mandatory sentences, opposed alternative sanctions for first offenders, and opposed judicial oversight over direct file decisions, to name just a few. Although Jacobs serves at the pleasure of the Association, his longevity and institutional memory ensure that he is more powerful than any individual elected member.
Advocates have been pushing the Florida legislature to adopt a package of minor reforms. These reforms would allow judicial “safety valves” to avoid minimum mandatory sentences for some first time offenders, raise the “felony threshold” for theft to an inflation adjusted $1,000 (from $300), and curtailing the use of monetary bond. None of these reforms have passed the legislature despite a general consensus as to their merits. If Floridians want immediate criminal justice reform, the solution is to elect better state attorneys who will be responsive to community sentiment.
Reformers suggest state attorney candidates should be questioned about a variety of issues and required to provide specific responses. Among the topics:
Monetary Bail Reform: The question posed by reformers is simple: Should a defendant’s wealth determine whether they remain incarcerated pretrial? If defendants are presumed innocent, how can we justify jailing them before trial, particularly for low level offenses? If the goal of bail is to ensure court appearance, are there other tactics that can succeed? Whether working with the chief judge to revise bond schedules, embracing diversion or supervision programs in lieu of bail, or making release recommendations at First Appearances, state attorneys have the power and opportunity to reduce the number of persons held in county jails pretrial.
Conviction Integrity: Prosecutor offices around the country have begun conviction integrity divisions. In the best examples, trained attorneys and investigators review cases where serious questions have been raised about the guilt of a prisoner under sentence. If major flaws are identified, the prosecutor works with the court and defense counsel to identify a remedy, including retrial or dismissal. Sometimes this review extends to sentencing integrity, which includes codefendants who received widely disparate sentences or offenders who received maximum sentences for relatively minor conduct. In Florida, 4th Circuit State Attorney Melissa Nelson has opened a conviction integrity unit. The 13th Circuit’s Andrew Warren has promised to open one by the end of 2018.
State Attorneys can also lead the way in preventing wrongful convictions. They should advocate for laws that require recording all interrogations, improving eyewitness identification procedures, and strengthening independent forensic science review of cases. Prosecutors should also be cautious about presenting unreliable evidence, whether it comes from a confidential informant or a police officer with a history of false testimony. In the 13th Circuit, State Attorney Andrew Warren has held a wrongful conviction seminar, with presentations by exonerees, to help law enforcement and his staff change behaviors that led to unjust results.
Sentencing Reform: Prosecutors control all aspects of the charging decision, which allows them to substantially control sentencing outcomes. Florida’s criminal punishment code allows the maximum sentence for all felonies but does not allow the court to mitigate sentences except in rare instances and in plea bargains. The result is that almost all cases are resolved by plea bargains between the prosecution and the defense, with little input from the judge. Internal state attorney office policies about making charging decisions and sentencing recommendations therefore determine outcomes in many of Florida’s judicial circuits.
In Philadelphia, a reform candidate named Larry Krasner was elected District Attorney in 2017. Upon taking office, he issued a memo to his assistants outlining new charging and sentencing policies. The memo requires assistant district attorneys to decline marijuana, paraphernalia and most prostitution charges. Additionally, prosecutors were advised to file lower gradations of theft charges and to increase reliance upon diversionary and reentry programs instead of jail. When jail is requested, in most cases the recommendation should be below the lowest end of the sentencing guidelines. Prosecutors must also announce and justify on the record why they are seeking incarceration and the financial cost of the sentence to taxpayers.
In Florida, State Attorney candidates should be questioned about their support for diversion, reentry, and sentencing reform. They can also be asked whether they will take into account the collateral consequences of criminal convictions, such as barriers to employment or immigration status. Restorative justice practices have potential to help victims recover from criminal acts, and candidates should be asked about their familiarity with and support of such practices. State Attorneys can also ensure that fines and fees are reasonable, proportionate, and transparent and that probation terms are limited.
Direct File Reform: Florida law presently allows the State Attorney wide discretion as to whether to prosecute juvenile offenders in adult court. The direct file decision is not reviewable by the judge in most instances. Prior to the elections of 2016, the 13th judicial circuit led the state in direct files (131 individuals in 2015-16) Following Warren’s election, direct files of juveniles declined by 25% in his first year in office.
Accountability: Prosecutors are immune for most actions taken while in office. It is rare to see convictions reversed, even when the courts determine there has been prosecutorial malfeasance. The Florida Bar rarely reports that any assistant state attorney has been sanctioned for misconduct. Therefore, if there is to be accountability at present, we must rely on the elected State Attorney to adopt and enforce internal policies and discipline. State Attorneys should not only ensure compliance with the requirements of Brady and Giglio, they should demand professionalism from all their assistants. State Attorney offices must also be prepared to investigate and prosecute unlawful use of force crimes committed by law enforcement officers. They should be responsive to community input and oversight while maintaining independent judgment and transparency.
Death Penalty: Shortly after taking office, 9th Circuit State Attorney Aramis Ayala announced that her office would no longer seek the death penalty. Governor Scott then removed her from a number of pending prosecutions and reassigned them to another state attorney. Ayala challenged this in the Florida Supreme Court but lost. In response, Ayala announced she was forming a death penalty review panel to advise her in capital cases. Melissa Nelson in the 4th Circuit and Andrew Warren in the 13th Circuit have substantially curtailed their offices pursuit of the death penalty since taking office. Now that a unanimous jury is required to impose the penalty, death sentences have fallen dramatically around the state. Voters should question candidates about the substantial expenses involved in capital cases and whether the office will be cautious about seeking death.
Criminal Justice Reform: State Attorneys and candidates for the office should be asked if they are satisfied with the legislative positions taken by the Florida Prosecuting Attorney’s Association. Candidates should pledge to support outcome-based reforms that will reduce reliance on incarceration, and support treatment and rehabilitative alternatives to jail. At the local level, the State Attorney should be seen as a leader in efforts to make the system more fair, efficient and reliable. As always, actions speak louder than words. Be wary of elected State Attorneys who claim to be reformers when this is not supported by their record.
THE 2020 ELECTIONS
An elected State Attorney serves a four-year term. In 2020 reformers will have an opportunity to effectuate change, as 19 of Florida’s 20 State Attorney offices will be up for election. It is possible that as many as a third of the incumbent office holders may choose not to seek reelection. Criminal justice reform is truly a nonpartisan issue and has liberal and conservative supporters, so it is important not to judge a State Attorney candidate on the basis of his or her party affiliation. Keep in mind that in Florida, many races can be decided at the primary level.
Circuit-wide campaigns can be expensive and cover a large geographic territory. The best candidate will be someone with extensive criminal justice experience who also has experience in community affairs. If a candidate has served as an assistant state attorney, his or her track record should be thoroughly analyzed. Experienced criminal defense lawyers may be qualified, and there is also precedent of judges running for State Attorney. The local criminal justice community should be able to identify a suitable candidate in each circuit and then ensure that person receives support.
A number of groups have announced their intentions to assist reform candidates for State Attorney in upcoming elections. The American Civil Liberty Union’s Campaign for Smart Justice has begun a nationwide public education effort about the importance of prosecutors. “Real Justice Teams” (a political action committee) notes that the United States has 2,400 elected prosecutors and claims: “We exist to place progressive, reform-minded women and men who want to end mass incarceration in each of these 2,400 positions.” “Color of Change” is another PAC that emphasizes racial justice and recently played a role in electing progressive district attorneys in Durham and Mecklenburg Counties in North Carolina. At the University of North Carolina, Professor Carissa Hessick has launched the Prosecutors and Politics Project. This project’s goals are to focus scholarly attention on the democratic accountability of prosecutors, analyze the relationship between prosecutors and politics, and increase voter knowledge about prosecutors and criminal justice issues.
After election, other groups exist to help support reform-oriented state attorneys. “Fair and Just Prosecution” works with newly elected reform prosecutors to embrace “prevention-oriented approaches to public safety that are rooted in local communities, based on data and evidence, and less punitive whenever possible. A collection of law professors, students, lawyers and advocates concerned about prosecutorial misconduct has started a website where they research mechanisms available to address and improve prosecutorial accountability. A newly elected State Attorney must work with all of the many participants in the criminal justice system in order to effectuate positive change.
Florida is a leader in mass incarceration. The billions of dollars spent annually on the Florida Department of Corrections to lock people up might be better used elsewhere. Voters interested in criminal justice reform do not have to wait on the legislative process to see change. At the local level, the elected State Attorney is the most powerful actor and can implement significant reforms upon taking office. Voters need to exercise their ability to hold these powerful elected officials accountable to the communities they serve. The policies of incumbent state attorneys should be closely scrutinized. The election of 2020 provides Florida voters with an opportunity to elect a new class of State Attorneys who will truly “seek justice within the bounds of the law.”
 American Bar Association Fourth Edition of the Criminal Justice Standards for the Prosecution Function, Standard 3-1.2(b) “Functions and Duties of the Prosecutor.”
 John Pfaff Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017)
 “Law and the New Order: A Fresh Wave of District Attorneys Is Redefining Justice” by Alan Greenblatt at Governing.com (April 2017 )
 See :The Most Powerful Lawyer in Florida is Keeping Criminal Justice Reform by Ron Sullivan at the Huffington Post (4/3/2017 )
 See “In a Florida first, Jacksonville’s state attorney hired someone to exonerate inmates,” by Andrew Pantazi--Jacksonville.com (January 29 2018 )
 See “Hillsborough State Attorney vows to create conviction integrity unit this year” by Dan Sullivan—Tampa Bay Times (April 23, 2018 )
 See “New Policies Announced February 15, 2018”
 See OPPAGA “Direct file of children to adult court is decreasing” (March 2017)
 See “State Attorney’s Community Report” (January 2018 )
 See “State Attorney Ayala rescinds her death-penalty ban” by Gal Tziperman Lotan—Orlando Sentinel (September 1, 2017 )
 Only the 20th Circuit will elect a new State Attorney in 2018.
 “Our Work and Vision.”