Washington Monthly
Don’t Abort Local Prosecutors’ Discretion

By Marc A. Levin and Khalil A. Cumberbatch

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.

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