Plus: A new essay on how courts can respond to cognitive biases among judges ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

In 2020, Monique Worrell won election to serve as the prosecutor for the Orlando area, campaigning on a reform platform that sought to reduce the number of people facing harsh sentences. Last month, Florida Gov. Ron DeSantis suspended

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her from office for “neglect of duty and incompetence,” citing her purportedly lenient approach to charging and sentencing. This month, Worrell filed suit

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in the Florida Supreme Court challenging her suspension.

Worrell’s lawsuit is one of a number of current state court cases that raise important constitutional questions about the scope of prosecutorial discretion — the power of prosecutors to decide when and how to charge crimes, seek bail or sentencing enhancements, or make other decisions about how they pursue cases. It’s an issue receiving scrutiny across the country

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, with laws recently enacted in Georgia and Texas authorizing prosecutors’ removal for certain uses of discretion.

The Florida Constitution authorizes the governor to suspend prosecutors like Worrell for specified reasons, including neglect of duty or incompetence. In her lawsuit, Worrell argues that DeSantis failed to allege any conduct meeting that constitutional standard. To begin with, his suspension order provides no evidence, she argues, that her office had any policy or practice of failing to enforce certain laws.

Regardless, Worrell contends that her actions were well within the bounds of her discretion as a prosecutor — and that a policy difference between her and the governor is no legal ground to suspend her. “Ms. Worrell was elected to serve as State Attorney, not the Governor,” the lawsuit notes. Disagreement about “where within the lawful range of discretion that discretion should be exercised falls far short of the constitutionally required showing of neglect of duty or incompetence.”

This isn’t the first time DeSantis has targeted an elected local prosecutor. In 2022, he suspended Tampa-area prosecutor Andrew Warren, citing pledges he signed not to prosecute certain types of cases, including those related to abortion and gender-affirming health care.

A federal court

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ruled that Warren’s suspension violated both the Florida Constitution and the First Amendment, but the court held that it lacked the authority to reinstate him. The Florida Supreme Court — which would have the authority to overturn the governor’s suspension — then rejected

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a petition from Warren filed six months after his suspension after concluding he had waited too long to file. Worrell’s petition, filed less than a month after her suspension, will likely force the state high court to directly consider the relationship between the governor and local prosecutors in implementing criminal justice policy.

Similar issues are also pending in other state supreme courts. In Pennsylvania, Philadelphia District Attorney Larry Krasner is challenging his 2022 impeachment by the state house of representatives, arguing that his exercise of discretion did not constitute “misbehavior in office.” (You can read more about that case in a State Court Report piece

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from this summer.) And in California, the union representing deputy district attorneys in the office of Los Angeles DA George Gascón is challenging Gascón’s policy not to seek sentencing enhancements under California’s three-strikes law. The case raises separation of powers questions about the legislature’s authority to curtail local prosecutors (and was previewed in another State Court Report piece

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). At the trial level, Georgia prosecutors are challenging

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a law imposing new limits on their discretion and creating new mechanisms to remove them from office.

It’s worth noting that while most of these efforts have targeted criminal justice reform–oriented prosecutors, the question of who gets to decide whether and how to charge crimes can cut in different directions. In Arizona, for example, the state’s Democratic governor recently stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer power to the state attorney general, who has vowed not to enforce it. Look for more cases to come.





Featured Essay: Addressing Bias Among Judges

“Justice is expected to be blind, but that only happens when judges think about and acknowledge their biases and cultural assumptions,” argue American Bar Association President Mary Smith, Illinois First Appellate District Justice Michael B. Hyman, and University of New Hampshire Professor Sarah E. Redfield in a new essay for State Court Report. They call for comprehensive and ongoing cognitive bias and cultural sensitivity training for judges. Read more

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Scholarship Roundup: Back to School Edition

University of Wisconsin Professor Miriam Seifter gives an overview of recent scholarship covering access to justice in state courts, state administrative law, state-level democracy, and state constitutional law. “Much more work is on the horizon, including recent and upcoming symposia and new book projects in state public law,” she notes. Read more

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Kentucky Supreme Court Weighs Partisan Gerrymandering

On September 19, the Kentucky Supreme Court heard arguments in a case challenging the state’s legislative and congressional maps as partisan gerrymanders. A trial court previously found that the challenged maps were gerrymandered but concluded that there was no justiciable claim under the state constitution. The Brennan Center’s Michael Li previewed the case. A win, Li noted, “would offer hope — and a potential model — for voters across the highly gerrymandered region.” Read more

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Montana’s Groundbreaking Climate Change Ruling

In August, a Montana trial court issued a ruling in the nation’s first constitutional trial addressing climate change. Michael Burger, the executive director of the Sabin Center for Climate Change Law, analyzes the decision, which held that a state law barring officials from considering climate change impacts as part of environmental reviews for fossil fuel permits violated the state constitution. Particularly significant, Burger argues, were findings that traced “the chain from government decisions in the state to emissions in the atmosphere to the plaintiffs’ lived experience.” Read more

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What Else We’re Reading (and Listening To)

On the American Constitution Society’s Broken Law podcast, Jeanne Hruska and Craig Mastantuono discuss

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the impact of Janet Protasiewicz’s election to the Wisconsin Supreme Court and threats by Republican legislators to impeach her.

In the New York Times Magazine, Emily Bazelon writes

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about campaigns to amend state constitutions to protect abortion rights.





You May Have Missed

On September 14, the Iowa Supreme Court heard arguments about the scope of legislative privilege under state law. The Brennan Center’s Gabriella Sanchez previewed

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the case, in which 11 current and former Republican legislators are challenging a subpoena for their communications regarding two election laws.





Notable Cases

State v. Lee

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, Louisiana Supreme Court

Held that a law authorizing Louisiana courts to amend a criminal offender’s conviction or sentence upon the joint filing of a post-conviction plea agreement by the offender and district attorney violates separation of powers. // Livingston Parish News

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Anderson v. Wisconsin State Assembly

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, Wisconsin Supreme Court

Petition filed by voters in response to the threatened impeachment of Wisconsin Supreme Court Justice Janet Protasiewicz, arguing that commencing impeachment proceedings would exceed the legislature’s authority and violate separation of powers and the rights of voters under Wisconsin’s constitution. // Wisconsin Public Radio

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Cuomo v. New York State Commission on Ethics and Lobbying in Government

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, New York Supreme Court (trial court)

In a case concerning the profits from a book by former Gov. Andrew Cuomo, trial court ruled that the state's Commission on Ethics and Lobbying in Government, an independent body created by the legislature to administer, interpret, and enforce New York’s ethics and lobbying laws, violates separation of powers under New York’s constitution because the authority to punish ethics violators belongs solely to the executive branch. // News10

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Wisconsin Elections Commission v. LeMahieu

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, Dane County Circuit Court (Wisconsin)

Lawsuit filed challenging the state senate’s ability to reject Wisconsin Election Commission Administrator Meagan Wolfe’s continued tenure. // News8000

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