After Dobbs v. Jackson Women’s Health Organization, dozens of prosecutors across the United States have made a conscious choice to reallocate their resources away from cases related to abortions, collectively declaring their refusal to criminally pursue such matters. This trend has prompted responses from state leaders who want to curtail the perceived overreach of prosecutorial power. For instance, Ron DeSantis fired a county prosecutor following allegations of a blanket policy against enforcing abortion laws. Meanwhile, in Texas, a bill proposed to prevent district attorneys from refusing to enforce specific offenses underscored a growing concern about prosecutorial autonomy and discretion. Another bill, Iowa’s S.F. 342, authorizes the [Iowa] Attorney General to sue, and withhold state funding from, a local prosecutor if a prosecutor “maintains a policy limiting the enforcement of any state law.” For instance, although an abortion ban is not currently in place in Iowa, if a prosecutor refused to enforce one if passed, the prosecutor would face both legal and financial burdens. Several other states, including Pennsylvania, Tennessee and Utah, have enacted laws to limit prosecutorial autonomy, complicating the delicate balance between prosecutorial discretion and legislative oversight.
Preserving prosecutorial discretion is fundamental within the criminal legal system, primarily due to the practical necessity of resource allocation. Without state funding, a prosecutor could not carry out their duties. Prosecutors, already faced with finite resources, must make strategic decisions about which cases to prioritize. In seeking to pursue a charge, factors considered include: the nature of the offense, the strength of the evidence, the extent of harm, the adequacy of other remedies, the attitude and mental status of the accused and the prosecutor's available resources and priorities. This discretion, when appropriately exercised, contributes to a more efficient and less burdened court system, which should prevent the indiscriminate pursuit of every suspected crime.
However, when prosecutors implement blanket policies against prosecuting certain crimes, they are effectively negating the very essence of discretion. In Ayala v. Scott, the Supreme Court of Florida ruled that a prosecutor's "blanket refusal" to seek the death penalty justified the governor's decision to reassign all of the prosecutor's cases. This blog post is not a call for prosecutors to universally prosecute abortion cases, but rather a plea for individualized decisions for each case based on its unique circumstances. While prosecutorial discretion is vital, employing blanket prosecution policies contradicts the nuanced nature of the legal system.
It is crucial to note that prosecutorial discretion, although a cornerstone of the criminal legal system, does not confer upon prosecutors the right to veto legislative decisions. This principle becomes particularly evident in the case of abortion-related offenses, where some prosecutors argue that their refusal to pursue such cases falls within their discretionary rights. However, the precedent set by the Ayala case suggests that blanket policies are not truly discretionary, which opens the door for executive intervention in cases where prosecutors overstep their bounds.
While prosecutorial discretion is undeniably essential for the effective functioning of the criminal legal system, the implementation of blanket policies against prosecuting certain crimes raises valid concerns. Striking a delicate balance between prosecutorial autonomy and legislative oversight is imperative to maintain the integrity of the criminal legal process. Individualized decisions for each case must prevail, ensuring that the principles of justice and due process are upheld while respecting the finite resources available to prosecutors.