The Dobbs decision has put America’s prosecutors in the cross hairs. As they cope with a surge in homicides and other violent crimes since 2020, many must now decide whether to prosecute those who have violated old and new laws criminalizing abortion.
As of mid-July, more than 80 elected district attorneys had announced that they wouldn’t pursue such cases now that Roe v. Wade has been overturned. Most of these DAs are in liberal states or left-leaning counties in conservative states. Florida Governor Ron DeSantis has suspended a locally elected prosecutor partly for declining to pursue abortion-related cases. Fortunately, most state constitutions have no provision giving the governor such power.
Still, the stance of elected prosecutors has raised the possibility that state legislatures may pass laws allowing state attorneys general to prosecute specific categories of cases that local district attorneys forego. Even before Dobbs, such proposals were being considered in states such as Tennessee and Ohio in response to concerns about self-styled “progressive prosecutors” who chose not to prosecute minor cases such as marijuana possession and trespassing.
In many instances, these are presumptive or default policies. For example, in Austin, Texas, a line prosecutor must now obtain approval from a supervisor to bring a low-level drug case and demonstrate a nexus to public safety. The imperative for individualized justice is a double-edged sword. If a prosecutor’s review of police reports and other evidence suggests that special circumstances—such as a serious criminal history—warrant prosecution, then a default policy can be set aside. Such rebuttable presumptions draw on prosecutors’ well-established prerogative to prioritize limited resources. This is consistent with research showing that formal prosecution often increases recidivism compared to diverting minor offenses from the court system. This finding is unsurprising given that the stigma of a conviction can make it more difficult to obtain employment and housing, which are key to an individual’s stability.
In contrast to presumptive non-prosecution policies, the landscape becomes murkier when specific laws are designated as those that will never be enforced. For one thing, there is always the potential for an outlying case, such as the 2013 case of a Philadelphia doctor found guilty of murder after performing numerous partial-birth abortions, which have been both illegal and extremely rare for decades. Ruling out the enforcement of laws can cut both ways ideologically. At least 20 sheriffs in Washington State, for example, vowed never to enforce 2019 gun laws imposing a background check and an age threshold of 21 for purchasing semiautomatic weapons.
Still, there are reasons to be wary of schemes that effectively override the discretion of local prosecutors and law enforcement.
First, as cliché as it may sound, the ballot box provides a remedy for constituents who disagree with their elected district attorney or sheriff. Indeed, in many instances, it’s hard for voters to say they have been hoodwinked. Even critics of “progressive prosecutors” have acknowledged that many, if not all, of those with presumptive non-prosecution policies for minor offenses such as marijuana campaigned on this pledge.
Moreover, Justice Samuel Alito’s opinion in Dobbs decried Roe for removing abortion from the democratic process. He touted the virtues of jurisdictions setting their abortion policies. Elected district attorneys setting their priorities are part of this democratic process, in which voters provide accountability. As the recall of San Francisco District Attorney Chesa Boudin demonstrates, voters are capable of deposing elected officials who they believe have gone too far.
But excessive prosecution is also a risk. Nobody suggests that an attorney general should be able to override a local prosecutor’s decisions to prosecute. As such, rushing to implement the opposite scenario, demanding prosecution, creates a one-way ratchet that always favors the exertion of government power.
Additionally, district attorneys who have pledged not to prosecute abortion cases are primarily in jurisdictions with little likelihood of securing a conviction before a jury due to public sentiment supporting abortion rights. This is analogous to marijuana possession cases in which it is difficult to find juries willing to convict.
Notably, some 70 leading groups that oppose abortion have declared their opposition to prosecuting those seeking the procedure. They have argued that advocates of legal abortion exaggerate the specter of such cases for political reasons. This raises the question of whether even pro-life citizens on juries, let alone pro-choice ones, may be inclined to convict.
Two other reasons local prosecutors may want to shy away from abortion cases are overcrowded dockets and pandemic backlogs. As prosecutors catch up on serious crimes for which there is a societal consensus, why should they allocate resources to matters where a conviction is unattainable given the jury pool? Prosecutors regularly disregard countless obscure state laws covering ordinary business and recreational activities, including banning work on Sundays in South Carolina, transporting a Christmas tree without a bill of sale in Michigan, and thrashing a neighbor’s pecan tree in Texas. Though the conduct targeted by these laws is less fraught than abortion and gun restrictions, their prosecution in an age of overcriminalization is necessarily selective.
With top anti-abortion groups rejecting the notion of prosecuting women seeking abortions, doctors and clinics become the most likely targets. However, there are potent, noncriminal remedies available for enforcing state anti-abortion laws revived by Dobbs.
These alternatives include civil litigation against abortion providers. Because most criminal defendants are indigent, civil lawsuits by victims of property or violent crimes are often fruitless, and the chances of collecting funds are minimal. In contrast, doctors and hospitals typically have resources, which is why they have often ceased performing abortions even in counties where district attorneys have vowed not to prosecute. Furthermore, hospitals and doctors usually hold state licenses that a licensing board could suspend or terminate.
With broad opposition among even pro-life constituencies to prosecuting those seeking abortion and evidence suggesting that prosecution is rarely needed to deter those who might perform illegal abortions, why set a risky precedent for circumventing a district attorney’s authority? Many states have long-standing and sensible policies with logical, nonpolitical parameters, allowing the attorney general to handle cases involving a local conflict of interest or an episode of complex organized crime and consumer fraud that extends across the state and requires specialized prosecutorial resources.
Conversely, there is no limiting principle to curtail an attorney general once they begin to cherry-pick local incidents for political reasons, whether it is abortions or gun purchases. Over time, as this list grows, it could dissolve local prosecution into a state function, upending our long-standing model in which community standards inform prosecutorial power.
Even as they disempower communities, proposals to allow attorney generals to bring charges that local district attorneys declined would consolidate more of the government’s most potent power, now diffuse, in one person. Closing cases is as important as opening them to ensure fairness to all affected parties. Given that statutes of limitations run for several years, creating a duplicative layer of prosecutorial review at the state level would leave potential defendants twisting in the wind while another office reevaluates their case.
A Texas proposal to allow district attorneys to prosecute cases arising in adjoining counties where their counterpart declines to proceed is a slippery slope, as it permits a prosecutor unaccountable to that jurisdiction to trump his accountable counterpart. Should other county officials, such as sheriffs, be similarly empowered to seize authority from their neighboring counterparts? There is no clear stopping point once we begin setting aside traditional boundaries and procedures to achieve a politically desired outcome.
There are deeply held views on abortion, whether Roe or Dobbs were correctly decided, and how elected prosecutors should prioritize their limited resources. But regardless of how one answers those questions, we shouldn’t trample the tradition of elected prosecutors exercising discretion in concert with community values and accountability to local voters.
