Prosecutorial Discretion Preemptive Policies and Rhetoric Remain Alive in 2026
Editors’ Note: In this post, Jorge Camacho talks about the continued attacks on prosecutorial discretion in 2026. For more information about the preemption of local prosecutors, be sure to read our in-depth reports on Prosecutorial Discretion – including the 2023 original report, and the 2024 update.
Driven in significant part by voter concern over authoritarian federal law enforcement efforts under the current administration, the nation is gearing up for the most consequential midterm election in recent memory. But in a moment where the president and his allies control the federal executive, legislative, and judicial branches, finding a political foil to blame for their policy failings has been challenging.
More locally, however, a familiar political target continues to receive blame for the purported (but demonstrably false) rank lawlessness of America’s cities: locally elected prosecutors who, the accusation goes, have gone “rogue” by exercising prosecutorial discretion in a way that bucks the policy preferences of state leaders. And, as before, the accusations frequently originate from state governors with deep hostility toward cities that serve as hotbeds of political opposition to them.
Texas, Florida, and Tennessee, each of which had recently enacted laws targeting local prosecutors, have continued their campaigns to curtail the political power of these locally elected officials and the communities that put them in office.
In 2023, Texas Governor Greg Abbott helped spearhead a law that enabled courts to remove district attorneys from office for declining to prosecute certain crimes (aka: for practicing the kind of discretion that forms the bedrock of prosecutorial enforcement, including federally). However, Governor Abbott has already deemed the law he supported as “cumbersome” and “basically… ineffectual,” presumably because it has already failed to lead to the removal of a key political adversary, Travis County DA Jose Garza (who handily won reelection as at least one petition to remove him was still pending). Seeking another bite at the preemptive apple, Governor Abbott now vocally supports the creation of a new prosecutor’s office with statewide jurisdiction to commandeer cases that locally elected district attorneys, using their increasingly forbidden discretion, deem unworthy of prosecution. His proposal will have to wait until the next biennial session of the Texas legislature in 2027, but the recent political victories of his locally elected adversaries is likely to motivate much of his legislative agenda for Texas’s upcoming 90th Regular Session.
In Florida, rumors have swirled about a possible second attempt by Governor Ron DeSantis to remove State Attorney Monique Worrell, whom DeSantis removed in 2023 for alleged dereliction of duty for, again, exercising prosecutorial discretion over charging, plea, and sentencing decisions (allegations that voters resoundingly rejected in the court of public opinion by voting Worrell back into office in 2025). But even if the rumors prove false, the specter of politically motivated removals of elected prosecutors remains present in the Sunshine State. Florida Lt. Governor Jay Collins has committed to staying the preemptive course charted by Governor DeSantis by pledging to remove “[the] leftist prosecutors who ignore the oath of office and coddle criminals” (a stance that, he reassuringly asserts, “is not politics”). And state Attorney General James Uthmeier has publicly denounced State Attorney Worrell’s use of prosecutorial discretion in a selection of cases where, he claims, the decisions of her office “are putting the people of Florida at risk” by showing leniency for “the undeserving” (all of which, again, are the precise kinds of determinations entrusted to democratically elected prosecutors to make on behalf of their constituents, including in furtherance of criminal justice reform and equity, policy goals that are seemingly anathema to Mr. Uthmeier’s carceral view of justice).
Some efforts to exert politically motivated oversight over elected DAs apply generally, like those recently implemented in Texas requiring all DA’s offices statewide to report on caseloads, offenses prosecuted, and pretrial release. But other efforts have no qualms about making it clear that they target only local political adversaries. Tennessee’s HB0483, passed earlier this year, is a prime example. It grants the state attorney general the authority to usurp charging power from prosecutors within the state’s 30th judicial district (and only the 30th judicial district), which encompasses Shelby County and the city of Memphis. The bill’s sponsor, attempting to justify the bill, pointed rather feebly to statistics that showed that “out of 514 felony cases, the Shelby County district attorney dismissed 144, gave suspended sentences on 178 and got convictions and jail time on only 84,” while providing no further breakdown based on offense type or any specific details regarding the cases within this selected sample. How these numbers show anything other than an elected prosecutor exercising the very discretion entrusted to him is unclear. More disturbing still, the legislature passed this bill, and the governor signed it into law, despite obvious questions over its constitutionality, which further erodes any claim that this law was passed to protect the rule of law.
While it appears that local prosecutors may, as a whole, currently face fewer politicized attacks from state leaders, the attacks have not abated completely. And in places where anti-localist rhetoric has been loudest and sharpest in recent years, the erosion of local democratic power remains a prime centerpiece of state political agendas.
Jorge Camacho is an Assistant Professor of Law at the University of Arkansas-Fayetteville.
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