In November 2016, Aramis Ayala was elected state attorney for the Ninth Circuit of Florida, becoming the first Black chief prosecutor in the state’s history. Three months after taking office, Ayala made national news by announcing that the circuit would stop pursuing the death penalty. 

Hours after her announcement, then-governor Rick Scott issued an executive order removing her from a high-profile, first-degree murder case of a man accused of murdering his pregnant ex-wife as well as an Orlando police officer. That was only the beginning of the backlash, which escalated to the point that Ayala announced in May 2019 that she would not seek re-election.

Now, the upcoming election to replace her raises questions about how prosecutors can seek criminal justice reform in the aftermath of unprecedented retaliation by the state’s executive branch.

On Aug. 18, voters in Orange and Osceola counties will choose between four Democratic primary candidates whose campaigns have taken shape in the shadow of Ayala’s ordeal. The winner will move on to face independent Jose Torroella in the general election (no Republican has filed), and will be favored in this blue jurisdiction.

All but one have pledged to roll back at least some of Ayala’s reforms. Monique Worrell, a former defense attorney, has indicated that she would possibly maintain what ground Ayala staked. 

Prosecutorial discretion—the power to decide what charges to issue and what sentences to seek—has long been left unchecked, but punitive politicians are now pushing back when it is used in a way that promotes criminal justice reform. Although this dynamic has spread around the country, no one has suffered from it quite as publicly as Ayala. 

If the state’s retaliation makes the upcoming prosecutor wary of using the office’s vast authority for progressive change, it would have a major effect on whether the Ninth Circuit ramps up or scales down mass incarceration. Florida prosecutors, for instance, solely decide whether to charge children in adult court, which has led to starkly punitive and racially unequal outcomes including over nonviolent charges. Only Worrell committed to not using her “direct file” discretion to charge youth as adults, though she included a carve-out if there is a “loss of life.”

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Ayala ran on a platform similar to other criminal justice reform prosecutors that have arisen over the last several years. Though others have also faced backlash, none have been so directly attacked by state officials. 

Scott followed the first removal with executive orders transferring 22 more first-degree murder cases from Ayala’s purview to the Fifth Circuit, headed by Brad King, a longtime proponent of the death penalty. King has lobbied against legislation requiring a unanimous jury recommendation in death penalty cases; at the time, every state other than Florida and Alabama requried a unanimous jury to decide whether a defendant lives or dies. Ayala sued Scott for transferring the cases, but the state Supreme Court sided with the governor, concluding that a blanket policy to not consider a sentence is the same as denying the office the use of discretion. Even after the office instituted a death penalty review board, the reassignments continued: In total, both Scott and the current governor, Ron DeSantis, have transferred more than 30 first-degree murder cases from Ayala’s office to King’s. 

This has created an environment that is perceptibly hostile to criminal justice reform, said Alfredo Zamora, an Orlando defense attorney. “In Florida, Orange County is as blue as it gets,” he told The Appeal: Political Report. “We should be a beacon of criminal justice reform in the state.” 

Yet the governor’s retaliation has had a chilling effect on would-be reformers. “It put me on notice that the rules of the game have changed significantly,” Worrell told the Political Report. “And those opposed [to criminal justice reform] will use any means necessary.”

Endorsed by Ayala and Bernie Sanders, Worrell is the most reform-minded of the four state attorney candidates for the Ninth Circuit. Her opponents are Ryan Williams, a prosecutor who switched to King’s circuit from Ayala’s after her death penalty announcement, Deborah Barra, the current chief assistant state attorney, and Belvin Perry Jr., a former Ninth Circuit judge best known for presiding over the Casey Anthony trial in 2011, a sensationalized murder case that was called the first social media trial of the century. 

Worrell has brandished her background as a criminal justice reformer and touted the fact that she has never prosecuted a case. But she is running on a platform that is significantly less assertive than Ayala’s and has backed away from Ayala’s death penalty position. All the candidates, when asked about the death penalty, have pledged to “follow Florida law,” despite the fact that there is no law compelling a state attorney to consider the death penalty. Rather, the state Supreme Court concluded that it was against Florida law to refuse to consider all sentencing options for each case. 

Williams, Barra, and Perry have said that Ayala’s death penalty policy damaged the credibility of the state attorney’s office, and each has pledged to restore it. For Williams, this means projecting an image of an office that law enforcement and state officials can trust. 

“Number one is to demonstrate a willingness to follow the law,” Williams told the Political Report. “A state attorney that law enforcement trusts because he or she has held criminals accountable is much more likely to get a more positive response [to reform] than to someone who has never done the job.” 

At the same time, Barra and Williams have spoken about the need for different reforms. Barra has proposed adding a unit that would “go after corrupt politicians.” Williams said he wants to decrease incarceration rates, expand the use of diversion programs, and even enact bail reform. But criminal justice reform advocates question whether these candidates would fundamentally alter how the county approaches such changes. Both Williams and Barra have emphasized the need to get buy-in from law enforcement and state officials, a stance that seems to many like business as usual.

“Changing the laws and getting reform requires Republican help. Anyone who says differently, I think they’re just wrong,” Williams said. “A role I would take on is going through our Republican legislature and saying: You can’t say I haven’t enforced law and kept our community safe.”

Micah Kubic, executive director of the ACLU of Florida, takes issue with the idea of lost credibility. “If you talk to the general population, [Ayala] has enormous credibility. Do I doubt for a moment there might be other law enforcement-centric institutions where credibility has been diminished? Probably. But in the community at large? I don’t buy that,” he told the Political Report.

“Positing that as a problem in need of a solution tells you something about the culture that we have to address,” Kubic added. “Is it really more important to be in the ‘in crowd’ with other prosecutors and the police, or the community at large?”

Zamora, who has also worked as a prosecutor in Miami and who donated to Worrell’s campaign, said this perception that change only happens with support from law enforcement and state officials is common among career prosecutors. 

“For far too long, prosecutors’ offices and law enforcement have looked at each other as cousins—if you make a mistake, I will fix it in the courtroom,” he told the Political Report. Without working to fundamentally transform these relationships, he said, there will be no material change.

But according to Barra, there are many competing priorities within the office—reforms are just one. “I get it, criminal justice reform is the big topic, but the job of the state attorney also entails protecting victims,” she said. “You need to be focused on reform and protecting innocent people who made mistakes, but if you only come at this job from one aspect, you’re not going to be successful.” 

Organizers in the Movement for Black Lives have challenged the notion that public safety and criminal justice reform are separate concerns. Andrew Smith, electoral manager of the Dream Defenders, said that without fundamentally reorienting its goals and purposes, “we could end up with an office that has a definition of safety that we don’t think works, that defines itself by conviction rate and not actually keeping Black and brown folks safe.”

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The idea that the top prosecutor’s office has the capacity to transform the criminal legal system—and that this is only possible with a change in culture—rests on its power of discretion. The state attorney sets policies and standards within the office that directly influence the ways that prosecutors make decisions about who to charge and to what degree. 

Worrell has been running her campaign primarily on a promise to change the culture of the office, and what seems to set her apart is her desire to use discretion to create entirely new norms. She told the Political Report that, as a defense attorney, she worked on cases that showed how taking a different approach to discretion can either funnel people into the prison system or divert them from it.

Worrell recounted defending a woman who was charged with a misdemeanor for driving with a suspended license and a felony for attempting to flee police. The police body camera footage later showed that the officer had tried to pull her out of her car during the stop, so she drove away. “You could hear her scream,” Worrell said. “That was the only reason I could plead down from a felony to resisting arrest, a misdemeanor.” 

Worrell said prosecutors approach charges as a negotiation—start high and use your discretion to plead down in exchange for something else. In this case, she said, the woman driving away wasn’t putting anyone in immediate danger—she drove away because she was justifiably afraid for her life. In that scenario, Worrell asked, why not give the woman a misdemeanor for the suspended license, and the money paid for the fine could go to getting her license renewed? Why not, after the license is renewed, drop the charges? 

“That’s something that requires discretion,” Worrell said. “That’s not the way it’s done. But it can be done that way.”

One of the most powerful ways a state attorney can use their discretion in Florida is through the state’s direct file statute. By direct filing, prosecutors alone have the full authority to charge a youth as an adult, entering them into the adult court and prison systems. Among the 13 states and Washington, D.C., that have a direct file option, only four, including Florida, do not allow for a judge to appeal their decision.

Florida transfers more children into the adult system than any other state in the country. Human Rights Watch found that over 60 percent of children direct filed in Florida from 2009 to 2014 were prosecuted for nonviolent felonies, and in 2016, data from the Florida Department of Juvenile Justice showed that 62 percent of kids sent to adult court were Black. Reformers in the state have attempted to change the system, but three bills that aimed to institute due process for direct-filed children died in committee last year. 

Barra, Perry, and Williams have defended a prosecutor’s ability to wield the direct file option, with Williams and Barra saying they plan to vastly cut back on its use. Worrell responded “Yes” to a ACLU survey asking, “Do you commit to not direct filing youth in the adult system?” but added the caveat that when cases result in loss of life, “adult court may be the only option to ensure public safety.”

All the candidates are acutely aware of the potential consequences for making blanket statements on policy. Williams told the Political Report that Scott’s retaliation against Ayala’s death penalty policy “raised an issue that was not previously on the minds of many elected officials.” 

He also believes that, based on the state Supreme Court ruling, even a blanket policy that is not made public, rather simply a pattern, could also be grounds for the governor to remove cases. 

“What it always comes down to for me is, if you use the law as your guiding point, then usually you’re going to be OK,” Williams said. “When you talk about discretion, discretion exists to make sure justice can be flexible in every circumstance while still following the law.”

But criminal justice reform advocates are hoping for a candidate who understands the limitations of the law, especially in a state where some—like the death penalty and the direct file statute—are ultimately detrimental. Though Ayala’s use of discretion to challenge unjust laws led to intense backlash, advocates are hopeful that her legacy will inspire prosecutors to take similar action, and to make their decisions even stronger and more impervious to retaliation.  

“Ayala has been a nationally visible leading proponent of criminal justice reform,” Kubic said, “and any time that happens, there are folks that either want to turn back the clock or advance the momentum. That is what is on the ballot on the 18th of August.”

“They will use every tool at their disposal. But what is also true is … that there is a growing movement for reform that extends well beyond the bounds of Orange-Osceola counties,” he added. “And there is power in that movement.”

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