CLEVELAND, Ohio – State Attorney General Dave Yost, a Republican, may have little room for recourse against local prosecutors who refuse to investigate or prosecute abortion-related cases following Ohio’s outlawing of abortions after six weeks of pregnancy.
Cuyahoga County Prosecutor Michael O’Malley and Columbus City Attorney Zach Klein, both Democrats, recently signed a letter vowing to not prosecute either women seeking abortions or anyone “promoting” abortion, which was outlawed by the 2019 bill that recently took effect following the Supreme Court overturning Roe v. Wade.
Yost may be limited in his ability to require the prosecutors to seek abortion-related cases by what is known as prosecutorial discretion.
Michael Gentithes, associate dean for the University of Akron school of law, said prosecutorial discretion allows local prosecutors to set priorities in how their office operates. That includes which cases to investigate and if someone should have charges brought against them.
“Prosecutorial discretion is broad in any category,” he said. “Not a lot of citizens are aware of how much power is in the prosecutor’s office, but it does allow them to decide what is in the interest of justice in terms of which cases to bring.”
Without prosecutorial discretion, the court system could become completely clogged and grind to a standstill because of the sheer number of laws in the state.
“You’d have to prosecute every jaywalker every time, and you’d pretty much do nothing but that,” Gentithes said.
Yost did not respond to multiple requests for comment, though Gentithes said Yost did not have much room for recourse.
“There’s not much the state can do to reign in and bring charges in a case like this,” he said.
O’Malley did not respond to multiple requests for comment on whether Yost’s office had reached out following O’Malley’s announcement. Klein said he had not heard from Yost’s office and was skeptical what, if anything, Yost could do about the prosecutors’ decisions on both a broad and targeted level.
“I think under current law, there is nothing the state can do to force any prosecutor to take any particular case,” Klein said.
While abortion is an inherently political topic, Klein said more than just politics went into his decision.
“Our office does 100,000 to 110,000 cases a year,” he said. “Our focus is on violence, property destruction and individuals who terrorize victims and refuse to follow the law. That is what I believe my constituents elected me to do. That will be the priority. Nowhere on that list, or at the very bottom at least, is me inserting myself into a private decision between a doctor and a patient.”
Prosecutors also have leeway to avoid prosecutions via punishments such as pre-charge diversion – a set of circumstances someone must follow to avoid charges – Klein said.
The state can force charges in some circumstances through what is known as a writ of mandamus: a court order that could mandate a prosecution. However, Klein was skeptical that Yost’s office could win a mandamus case.
“How would he know all the facts of the case? How would he know the quality of the victim testimony? Of corroborating victim testimony?” Klein said. “He would turn around and force a third-party prosecutor to act? That’s not how the criminal justice system works.”
Even any legislative remedy would prove difficult, if not impossible, Gentithes said.
“It’s a feature of our criminal justice system that would be very difficult to legislate around,” he said. “It’s fundamental to how we handle criminal cases. It’s almost a necessity that you give prosecutors some discretion.”
This story has been updated to correct that Franklin County Prosecutor Gary Tyack has not signed on to the letter.
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