Abstract
Prosecutors wield broad influence over criminal cases due to their power of prosecutorial discretion. In recent years, a growing number of prosecutors are exercising that discretion by crafting policies that deprioritize or decline prosecution of entire categories of crimes. Because most state and local jurisdictions in the United States elect their head prosecutor, policy-based prosecutorial discretion can even become an electoral strategy for voters who seek to express displeasure with certain categories of criminal laws.
Following the reversal of Roe v. Wade in 2022, criminalized abortion has become one such category of law in many states. The 2022 midterm elections demonstrated that there is great popular support for abortion access among the electorate in many jurisdictions including ones where the laws appear out of sync with those voters’ preferences. In this uncertain environment, some prosecutors are leaning on their broad discretionary powers to decline prosecuting cases of abortion.
This Note uses the ordeal of Andrew Warren, a prosecutor in Florida who announced such a discretionary policy, to illustrate the promise and limitation of policy-based prosecutorial discretion. The Note argues that so long as we have prosecutorial elections, we should encourage or even demand candidates who articulate policies describing how they will exercise their power of discretion. This practice will give voters a genuine choice when choosing a prosecutor by evaluating the candidates’ moral convictions as much as their criminal convictions.
Recommended Citation
Ryan Edwards,
Electing Prosecutors Based on Their Convictions,
24
Nev. L.J.
253
(2023).
Available at:
https://scholars.law.unlv.edu/nlj/vol24/iss1/7