FLORIDA GOVERNOR CREATES A SUPER-LEGISLATURE OF SHERIFFS

Florida Governor Ron DeSantis recently suspended Hillsborough State Attorney Andrew Warren for a campaign promise to not enforce what the legislature passed. But this was not what it was represented to be, a check on black-market justice in Florida.

Prosecutor Warren actually signed a letter saying he would not enforce abortion and gender-medicine laws. Warren provided honest full disclosure of what he reasonably believed to be white-market actions, based on the fact it doesn’t say anywhere in Florida law that he can’t do this. Warren’s pledge is just a campaign communication, it is not legally binding to prohibit him from choosing to prosecute specific future cases. Like all Florida prosecutors, Warren will use his discretion to find the most politically convenient path in each case regardless of what he promised and the law. And there is no formal process to oversee what he then chooses to do. It is really just the choice of the governor to remove him in a rare situation based on politics.

This is different from maintaining the facade of discretion, which is used to ignore crimes by VIP’s and government officials, and criminals from the same faction as the prosecutor, in individual cases. Prosecutor Warren did not attempt to hide what he was doing, or give the media immunity to spread lies, to gin up approval and subvert oversight of what he was doing, when it came to what is ordinarily his legal right to create local policy in Florida.

DeSantis claimed to canvas members of his faction – Republican sheriffs and prosecutors – to find out if there were any local officials from the Democrat faction they wanted to go after. And then DeSantis chose this prosecutor who was deemphasizing a specific set of laws that are part of the current DeSantis political campaign agenda, involving abortion and child medicine practiced by leftists. DeSantis did not need to ask sheriffs like this what laws to enforce, to enforce the law. Any team of unbiased lawyers can produce a list of crimes in Florida that were passed by the legislature but not prosecuted. The key is that the laws were passed by the legislature, not whether they are popular with a poll of sheriffs.

Of course the sheriffs told DeSantis to go after someone who did not prosecute the perceived enemies of sheriffs, Black Lives Matter protestors. This was possibly an actual example of Warren practicing Florida black-market justice. Warren may have used discretion to protect illegal activities, by people who may have committed crimes to attack Warren’s political enemies. But Warren’s failure to prosecute protestors that the police arrested was not mentioned either in Warren’s written policy pledge, or in DeSantis’s Executive Order to remove him. So DeSantis used black-market justice himself, lying to the public and using a false pretense, to go after the person the sheriffs wanted taken out.

DeSantis also cited Warren’s promise to not enforce laws on child medicine that don’t exist in Florida. This focus on something that is an element of both sides’ political campaigns but not actual law, is more political theater than enforcing what the legislature actually passed.

The sheriffs did not tell DeSantis to go after someone like State Attorney Phil Archer who doesn’t prosecute police breaking Florida Statute 837.02 when they commit perjury in affidavits. Of course protestors engaging in First Amendment activities are already often over-charged by police, while cops who commit perjury make it impossible for there to even be law. So the removal of prosecutor Warren was not part of a general pursuit of law, but just more political warfare under color of law.

The suspension of prosecutor Warren by Desantis was not as claimed some abstract pursuit of law in general against being usurped by local officials. Rather it was politically oriented based on the capricious whim of DeSantis and the political influence of sheriffs. It pursued enforcing the law the way one faction wants it enforced against members of another faction, over the way a competing faction wants it enforced against enemies of the first faction. It thereby substituted the arbitrary will of one lawless mob for another to subjugate their opponents. This is just moving the locus of the mob that decides what laws to enforce or not, from Hillsborough to a special-interest poll of sheriffs from whom DeSantis derives his political support.

To achieve abstract law, would require not just countering the biases of prosecutors, but even more so countering the bias of sheriffs. Any law the sheriffs want enforced is likely to already be over-enforced with cheating by those same sheriffs. But DeSantis in this instance turned the sheriffs faction into a sort of super-legislature, which ultimately decided what laws to enforce or whether to enforce certain laws, within the politically-motivated discretion of their faction. They chose to stop the other side letting anti-cop protestors illegally attack cops, but chose to ignore their own side allowing police to attack protestors and the law itself with perjury.

So this was in some ways a takeover of white-market justice – a prosecutor who wrote a campaign letter saying what laws he would not prosecute – with black-market justice, a mob of cops and Republicans who choose not to enforce all the laws of the legislature, but the ones of immediate importance to their tribe, and then lie about what they are doing. It is the opposite of the abstract supremacy of law itself. It is discretion and political power used for selective law enforcement while misleading the public as to what is really going on. To the extent Warren’s letter was not legally binding, it may even be an attack on Warren’s First Amendment right to make campaign promises.

The Florida Governor has been determined by the Supreme Court of Florida to have this power to suspend and remove prosecutors and sheriffs at his discretion. And this power is occasionally exercised, under very political circumstances, as it was in the case when a prosecutor was replaced for not pursing the death penalty. (And of course they never disclosed to the public that they subsequently offered that defendant 40 years in exchange for lying about other inmates.) But there is no standard or official process, much less a person or institution in the executive branch in Florida, with the job or mandate to perform ongoing, standard, or universal review of whether prosecutors are complying with the law, much less compel reporting or perform enforcement.

There is no record in Tallahassee that says, for example, how many abortion cases prosecutor Warren used his discretion to not prosecute. And there is no reporting requirement to create such a record, of this or any other discretion, or of prosecutor activities in general. Similarly there is no record or requirement to report how many felons were let out of prison for testifying as jailhouse witnesses, how many cases were thrown out when police were caught lying, or any of the other questionable conduct at the local level.

The absence of such a systematic and unbiased process in the state government, and the informal one-time political process which Governor DeSantis therefore used to remove prosecutor Warren, confirms rather than mitigates, that the enforcement of the law in Florida is intentionally laissez faire at the state level, and political at the local level. It is only when prosecutors use the white-market practice of saying what their policy is, such as Aramis Ayala saying she won’t seek the death penalty, that the political opportunity is created for the governor to campaign against the policy. So it is politics, rather than law enforcement.