This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.
Back in January, when a federal judge weighed in on Florida Gov. Ron DeSantis’ decision to boot local prosecutor Andrew Warren from office, his judicial findings were clear.
“The record includes not a hint of misconduct,” U.S. District Judge Robert Hinkle wrote of Warren, who was serving as the state attorney in Hillsborough County, which includes Tampa. “He was diligently and competently performing the job he was elected to perform, very much in the way he told voters he would perform it.”
Similarly, when the Pennsylvania state legislature sought to impeach Philadelphia District Attorney Larry Krasner, a panel of state court judges mostly agreed that the case against him did not spell out the kind of misbehavior or corruption that warrants impeachment. Instead, the legislature “simply appears not to approve of the way [Krasner] has chosen to run his office,” the panel concluded.
Both Krasner and Warren have been informally dubbed “progressive prosecutors,” a broad category that conservatives have aggressively targeted in recent months — via impeachments, suspensions, and new state laws and commissions designed to weaken the prosecutors’ authority or kick them out of office. Generally, opponents argue that by choosing not to focus on certain minor crimes and pledging not to pursue particular cases — for example, those tied to marijuana or abortion — these prosecutors are flouting state laws.
This push to oust elected prosecutors over ideological differences isn’t new. This newsletter touched on many of these themes in an edition a year ago. But since that time, the efforts to undermine and expel these prosecutors have intensified, and with the 2024 election approaching, more may be on the horizon.
“There's obviously a feeling by a few of the [Republican] presidential candidates that they can gain some traction by making this into a political wedge issue and going after the so-called ‘woke’ prosecutors,” said Miriam Krinsky, executive director of the advocacy group Fair and Just Prosecution.
DeSantis, who is running for the Republican presidential nomination, represents the clearest example of this political impulse. Last week, he suspended another elected prosecutor, Monique Worrell, arguing she’s neglected to enforce state law — a similar argument DeSantis used in removing Warren. Worrell, the state attorney for the area around Orlando, has pledged to fight the suspension, but even if a court agrees with her, it’s not a given she’ll get her job back. In Warren’s case, the judge ruled that it wasn’t in his power as a federal judge to reinstate a state official deposed by another state official. Months later, a Florida court dismissed Warren’s challenge of his removal, finding that he’d waited too long to file it.
In Krasner’s case, conservative lawmakers appealed the court’s ruling in late June, and have asked the state supreme court to allow an impeachment to proceed. The two cases serve as reminders that even when the courts side with reformist prosecutors, it won’t always clear a path back to office, or end efforts to boot them out.
Just because a prosecutor survives a removal attempt, doesn’t necessarily mean they will easily implement their preferred policies, either. Los Angeles County District Attorney George Gascón was the target of a failed recall attempt last summer, and has struggled to deliver on promises for a resentencing unit, the Los Angeles Times reports. Nearly three years ago, Gascón said the unit could reduce the sentences of up to 30,000 people in California prisons, but fewer than 100 people have successfully been resentenced, according to state data.
These kinds of units review excessive sentences from years past, especially in cases where the person would likely have received a shorter sentence today — because of less severe sentencing laws and changes in public attitudes. In most states, prosecutors can only seek resentencing if there is proof of an error in the original term, but the resentencing units can look at more kinds of cases and are slowly popping up in more places. This month, Minnesota became one of the handful of states to grant prosecutors this power.
A former Gascón adviser told the Los Angeles Times that the slow progress is partly due to political considerations by people on Gascón’s staff, worried that someone they recommend for release would commit a new crime and bring scrutiny on the office. In other places, the effect of new laws limiting prosecutorial discretion is less speculative. In Bexar County, home to San Antonio, prosecutor Joe Gonzales said in June that his office would change policy to comply with a Texas law set to go into effect next month, which allows a judge to remove from office any prosecutor who doesn’t pursue a specific type of crime. The legislature pushed for the new law after some Democratic prosecutors said they would not go after abortion-related crimes.
A group of Georgia prosecutors are challenging a similar law in that state, arguing in part that the new law would “force district attorneys to consider crimes such as adultery, sodomy and fornication” — all technically illegal in Georgia — though no prosecutors, progressive or otherwise, actually pursue such cases.
The battle over progressive prosecutors has been most dramatic in states with Republican-dominated legislatures and governorships, but with big Democratic-leaning cities, like Tampa or Orlando, Florida. In California, where Democrats control state-level office, pushback on progressive prosecutors has instead come through the state’s uniquely accessible recall laws. On Tuesday, a group in Alameda County, which includes Oakland, formally launched a recall effort to oust District Attorney Pamela Price, barely seven months into her term.
That makes Price the third California district attorney in a major city to face a recall attempt in the last 18 months. Voters recalled Chesa Boudin in San Francisco in June 2022, and in Los Angeles Gascón has weathered two unsuccessful attempts to remove him, in campaigns mostly built on arguments about crime and disorder.
Recall proponents in Oakland have attacked Price over her office’s charging decisions in some violent cases, and blame her for an apparent rise in some violent crime rates. Price’s supporters say the causes of crime are complex and that no single public official can control its fluctuations. Price herself blasted the recall attempt, saying its backers “refuse to accept the results of a legitimate, democratic election to remove the status quo.”
