Last month, State Attorney Aramis Ayala, who represents the Orlando area counties, announced that she would not be seeking the death penalty in the prosecution of Markeith Loyd. Loyd was charged with killing his pregnant ex-girlfriend and fatally shooting an already wounded police officer. Days after Ayala’s public announcement, Florida Governor Rick Scott asked Ayala to recuse herself from Loyd’s case. When Ayala refused, Scott took an unprecedented action: he removed her from the case via executive order. Scott’s executive order is the first time in the state’s history that a governor has removed an elected prosecutor from a case because of disagreement with sentencing. Now, both Scott and Ayala find themselves in the center of a hotly contested political debate, which is redefining traditional political alliances: police and prosecutor are pitted against each other and a “small government” Republican governor is intervening in local government affairs.

The legal basis for Scott’s executive order turns on a Florida law that allows the governor to remove prosecutors: “If, for any good and sufficient reason, the governor determines the interests of justice would best be served,” the governor may reassign an acting state attorney from one case to another. Yet, Florida’s law is silent on whether disagreement over the penalty sought in an individual case is “good and sufficient reason” for removal of a prosecutor. Removal is rare, and is typically used in the context in which a prosecutor is unable to bring a case due to some disqualification on her behalf. In fact, the “good and sufficient” language follows a sentence which explicitly contemplates removal because an acting state attorney is unable to bring a case.” No governor, either Republican or Democrat, has ever used this language to override prosecutorial discretion in the penalty sought, until now.

To understand what motivates Governor Scott’s decision, one must understand that the Loyd case is politically sensitive in Orlando, home to one of the largest voter concentrations in Florida and one of the few areas that the Republicans lost in the last gubernatorial election. But the facts of the case immediately engendered the ire of a local community, setting the stage for Governor Scott to take a politically advantageous pro-death penalty stance. Loyd is a former convict who, according to witnesses, murdered his pregnant girlfriend of three months. While on the run for that murder, Loyd was captured on video, shooting Lt. Debra Clayton of the Orlando Police Department through the neck after she was already wounded, disarmed, and lying on the ground. Even after his arrest, Loyd made national news when he refused attorney representation and then asserted that the court had no power to hear his case because Loyd was a “sovereign citizen” Less than two weeks ago, Lloyd demanded that an Orlando court now supply him counsel, but informed the court that he would only accept one particular attorney, Frederick Lauton, a Miami-based criminal defense attorney, rather than a ninth judicial circuit public defender. It is no understatement, then, to say that Loyd has projected a public image of an immensely unlikable defendant. With the police department, local politicians, and pro-death penalty advocates all publicly seeking the harshest punishment available under the law, Governor Scott’s pursuit of the death penalty for Loyd is a political win even in this blue district.

Yet, newly elected state attorney Aramis Ayala’s refusal to pursue the death penalty has complicated things for Scott. Ayala’s decision echoes longtime concerns about the death penalty in Florida. Over the last two years, Florida’s death penalty has been the source of significant controversy. Over one year ago, all inmates on death row had their executions temporarily stayed after the U.S. Supreme Court held that Florida’s death penalty regime gave judges too much discretion. Earlier this year, Florida’s own Supreme Court struck down a law intended to fix that constitutional defect by requiring juries make a supermajority decision to sentence a defendant to death. Following that decision, the Florida legislature enacted a statute requiring juries to unanimously recommend the death penalty before a prisoner can be sent to death row. Just weeks after the enactment, Ayala made the public decision not to pursue the death penalty for any case in her jurisdiction, citing the historic problems with the Florida death penalty regime and suggesting that the concept of capital punishment in itself was problematic.

On the one hand, the Florida legislature’s repeated affirmation of the death penalty, including an enactment just weeks prior, could suggest that Ayala’s decision to refuse to pursue the death penalty is an anti-democratic abuse of prosecutorial discretion. That charge, leveled by Florida Attorney General Pam Bondi, draws on the fact that Ayala’s refusal to seek the death penalty under any circumstance, no matter how extreme the defendant’s alleged crime, seems not to be based on individual prosecutorial discretion, but is, in fact, a categorical policy decision foreclosing the death penalty in all cases. Such a decision, though perhaps ethically superior, is not consonant with Florida voters repeated support for the death penalty, or with Florida law as it presently stands.

Yet, on the other side of the issue, Governor Scott’s intervention is equally troubling. If categorically excluding the death penalty can be considered an abuse of power, so too can his effectively mandating the death penalty. By justifying the decision to remove Ayala on the basis that “the interests of justice would best be served” by installing a prosecutor who would be willing to seek the death penalty, Scott has tethered the legitimacy of his executive order to the conclusion that Ayala’s decision not to pursue the death penalty was improper. Over 100 lawyers called on Governor Scott, who is not and has never been a lawyer, to withdraw his executive order for how it overrode prosecutorial discretion in sentencing decisions. Even more troublingly, after initially pulling Ayala from only the Loyd case, Governor Scott then moved to pull Ayala from every single death penalty-eligible case under her control. His unprecedented actions together communicate that in all cases that qualify for the death penalty, justice cannot “best be served” by seeking anything less than the death penalty. Replacement prosecutors find themselves in a bind: charge the death penalty or face removal. Loyd’s announced last week that that he will be seeking the death penalty.

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