Trials and Error

Agree With My Politics or I’ll Take Away Your Power

Florida Gov. Rick Scott’s dangerous, unlawful decision to reassign a prosecutor because she opposes the death penalty.

Aramis Donell Ayala is State Attorney for the 9th Judicial Circuit, Florida
Aramis Ayala is the only person empowered to make prosecutorial decisions for her judicial circuit.

Aramis Ayala for State Attorney

Last November, Aramis Ayala became the first black elected state attorney in Florida history. Last week, she also became the first elected prosecutor in Florida to declare she would decline to seek the death penalty in any future case, saying that pursuing the death penalty was “not in the best interest of the community or the best interest of justice.”

Progressives and criminal justice reform advocates across the country supported Ayala’s decision, as did the mother and father of the victim in her district’s most high-profile case. “We all need to stand behind [Ayala],” said Stephanie Dixon-Daniels, whose daughter Sade Dixon was murdered in December. “I want him dead as anybody else. But he will die in prison.”

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Many Republican leaders, by contrast, claimed Ayala—who oversees Orange and Osceola counties—violated her oath of office by taking the death penalty off the table. Florida Attorney General Pam Bondi called Ayala’s move “a blatant neglect of duty and a shameful failure to follow the law,” while members of the state legislature threatened to reduce her office’s funding. Republican Gov. Rick Scott went as far as removing Ayala from the case of Markeith Loyd, the man charged with fatally shooting Sade Dixon as well as an Orlando police lieutenant, saying he was “outraged” and “disappointed” that Ayala had “made it clear that she will not fight for justice.”

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But Ayala is not backing down. On Monday morning, she filed a motion in state circuit court indicating her intent to challenge Scott’s decision and disputing the governor’s authority to remove her simply because he disagrees with her valid exercise of prosecutorial discretion. More than 100 of the country’s best legal minds think she’s right.

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On Monday, 130 prosecutors, law professors, and former judges signed and sent a letter to Scott demanding he reconsider his decision to remove Ayala from the Loyd case. The signatories include two former chief justices of the Florida Supreme Court as well as former justices from the high scourts in Georgia, Washington state, California, and New York. More than 20 prosecutors, both former and current, also signed the letter, including the president of the National Black Prosecutor’s Association and Jacksonville State Attorney Harry Shorstein, who prosecuted 15 capital cases during his 17 years as chief prosecutor.

The authors expressed dismay at the governor’s interference with a prosecutor’s decision-making. Ayala is the only person empowered to make prosecutorial decisions for her judicial circuit. Deciding which cases to prosecute, whether to offer plea deals, and what charges to bring is exclusively within the prosecutor’s purview, and prosecutorial discretion is a bedrock principle of the justice system. “We believe that this effort to remove State Attorney Ayala infringes on the vitally important independence of prosecutors, exceeds your authority, undermines the residents of Orange and Osceola counties to the services of their elected leaders and sets a dangerous precedent,” reads the letter to Scott. “Not all of us agree with her decision. But we do agree that she had the authority and the discretion to make it.”

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According to state law, Scott can remove Ayala from the Loyd case if he has “good and sufficient reasons” that “the end of justice would be served.” Scott argues that her decision not to seek the death penalty is an adequate justification for removing her office from the case.

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But if Scott follows through, he will have set a concerning new standard for prosecutors across the state: Either agree with my politics or I’ll take away your power. “The governor’s overreach promotes prosecutors making politically motivated charging decisions out of fear of the governor removing them,” stated Melba Pearson, deputy director of the American Civil Liberties Union in Florida and former president of the National Black Prosecutors Association.

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Ultimately, the legitimacy of Scott’s decision will be a technical question for the courts. But the implication from Florida’s Republican elected officials that Ayala violated the law is simply untrue.

The death penalty is an option, never a requirement. Although a prosecutor may seek the death penalty in a narrow class of cases, the law does not require her to do so. And while Scott has positioned Ayala as a dramatic outlier on the death penalty, her refusal to seek death is anything but unusual. Capital punishment remains legal in 31 states, but death penalty sentences have dropped dramatically over the past few decades. Of the nation’s 2,300 prosecutors, only 27 sentenced a person to death last year. Ayala’s position, then, aligns her with 99 percent of prosecutors in America. The outlier here is not Ayala. It’s Rick Scott. “[T]here appears to be no precedent in Florida for this type of use of power,” where the governor picks and chooses “how criminal cases are prosecuted, charged or handled in local matters,” said Pearson.

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While voters in Orange and Osceola counties overwhelmingly voted Ayala into office, they rejected Gov. Scott. In 2014, he received only 41.6 percent of the vote in Orange County and 43 percent of the vote in Osceola County. “State Attorney Ayala, not the governor, is the elected representative of the community responsible for how to prosecute crime in Orlando,” states the letter. “Seeking to take that power away from her in this manner undercuts the importance of local sentiment and the will of the people of Florida.”

Whether Scott heeds these warnings remains to be seen. If he refuses, it would not be the first time he has been accused of inappropriate overreach. In 2011, the Florida Supreme Court struck down two of his executive orders, including one where he tried to claim authority over state agencies—an authority that actually belonged to the state legislature. If Scott persists in his attempts to remove Ayala, he might find himself back in court.

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