In his first morning as state attorney, Andrew Bain made immediate and sweeping changes: He fired two executive staff members and discontinued the office’s diversion programs while he “evaluate[s] their effectiveness.”
The actions by Bain, a member of the conservative Federalist Society who Gov. Ron DeSantis appointed to the Orange County judicial bench in 2020, represent a sharp departure from Monique Worrell, the elected state attorney for Orange and Osceola Counties who DeSantis ousted from office Wednesday. Bain’s actions also caused concern for local defense attorneys whose clients have gone through the programs.
“… [E]ffective immediately, I am rescinding the catch and release policy that has been in place for too long,” Bain wrote in an email Wednesday morning to State Attorney’s Office staff obtained by the Orlando Sentinel through a public records request. “We must return the principle of prosecutorial discretion, one that relies on a thorough analysis of each case’s facts and the laws of Florida.”
Catch-and-release typically refers to policies that allow people awaiting a hearing in immigration court to be released from custody. Days after this story was published online, a spokesperson for Bain clarified that he was not using the phrase to refer to a specific existing policy, but rather “any instance of bail, bond, recidivism, and re-offense that allows those accused not answer to crimes they’ve committed and puts them back on the street.”
Diversion programs were central to Worrell’s policy platform, both during her initial campaign in 2020 and while she was the top prosecutor in the Ninth Judicial Circuit.
The diversion programs connected those arrested with low-level charges to services that address the root causes of crimes, she has said. The same programs also sought to avoid penalizing those accused of non-violent crimes with a criminal record that may stop them from being able to find work or qualify for housing.
The programs, some of which preceded Worrell, were mostly eligible to those accused of low-level crimes including driving with a suspended license, resisting an officer without violence and underage drinking. Worrell also had in place a pre-trial diversion program for veterans, juveniles and a multi-level program for drug users.
After this story was published online, the State Attorney’s Office in a Thursday afternoon press release announced Bain’s “100-Day Plan,” which included a “Second Chance program” that the release said “will enhance previously implemented diversion programs that work to prevent continuing harm to the community and a reduction in recidivism.”
The program, according to the press release, will be “lawfully instituted to address some of the issues that will bring a person into the criminal justice system i.e. poverty, homelessness, mental health, food insecurity, and skilled job training for non-violent offenders.”
No further information about the proposed program was provided.
Bain and his leadership team will also review cases that were previously dropped by State Attorney’s Office as long as the cases involved homicide, sex crimes, drug trafficking and major violent crimes, the plan said. It left unclear how far back this review will go.
Additionally, Bain plans to halt “presumptive nonenforcement policies,” the press release said. Worrell has repeatedly denied maintaining any such policies or procedures.
Meanwhile, Bain’s decision to suspend the existing diversion programs has caused at least some defendants who were enrolled in them to go back on the pre-trial docket, effectively resetting their cases, according to Roger Weeden, a longtime defense attorney.
It’s unclear how many people were involved in these programs when they were canceled. The State Attorney’s Office did not respond to a request for comment.
Weeden is representing a man who was arrested on a felony possession of cannabis charge. The man paid his fees, completed a required substance abuse class and only had to complete fours of community service. If he had finished the hours and had a status hearing before Wednesday morning, he would not be prosecuted since he completed the program.
On Thursday, however, the judge put him back on the pre-trial trial docket since the program has been aborted.
“He was three-quarters of the way through,” Weeden said, adding that under Worrell the programs were offered to every person who qualified.
Weeden said Bain’s decision will also “further crowd the pre-trial dockets.”
Attorney Camara Williams, a vocal supporter of Bain during his campaign for judge last year, now calls his earlier support of Bain a “mistake,” citing the appointed state attorney’s decision to indefinitely suspend diversion programs.
Williams, who last year invited Bain speak on his podcast and had a Bain campaign sign at his office, said the decision will cause a “clogging of the court system with small and petty” crimes that should be diverted.
He also said the programs, which he has had clients go through, predominantly affect poor Black and brown communities.
“For him to eliminate the programs that affect people … looking for a second chance in life is disgusting,” Williams said. “This was definitely cruel. … I’m not sure what his focus [was], but it definitely wasn’t to help the community.”
Bain was also rebuked by the Florida Association of Criminal Defense Lawyers, which said the elimination of diversion programs will bog down the judicial system.
“Offers to resolve cases are already being revoked, causing further backup in our already overloaded criminal courts,” the organization said in a statement.
Karen Levey, spokesperson for the Ninth Judicial Circuit, said she could not confirm that cases previously in diversion have been placed on pre-trial dockets.
“Several Judges have advised that they have not been asked to return any defendants to their [pre-trial] dockets,” she said, adding, “In the 24 hours since the administrative change, it is far too early to tell if the changes will have any impact on caseloads.”
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Before it was suspended, the veteran program operated by the state attorney’s office, which was offered to former U.S. Military personnel who’ve been accused of certain criminal offenses, included evaluation and treatment for mental health and substance abuse as well as job skill development.
The pre-trial drug program — introduced in 2019, two years before Worrell took office — was organized into three tiers.
The first tier was eligible for people accused of possessing a misdemeanor amount of cannabis or drug paraphernalia; level two was for people with no or minor criminal history charged with non-violent low-level felonies; the third tier was for people suffering from drug addiction and accused of some third and second-degree felonies, excluding those involving a weapon, domestic violence or sexual assault.
Those in the third tier were placed in the court-operated drug court.
When people failed the program, they would be moved up to the next tier. If people were rearrested or failed to complete level three, they would be removed and prosecuted accordingly, according to the policy.
According to the State Attorney’s Office website, these programs were intended to relieve overburdened courts so they can handle more serious cases; increase the chances of a better outcome than the involvement with a traditional court system allows; and offer less-serious offenders an opportunity to avoid prosecution by participating and completing a program.
The court-operated diversion programs are still in place, including drug court, mental health court and veterans court, as well as juvenile diversion programs like teen court and neighborhood restorative justice, Levey, spokeswoman for the Ninth Circuit.
“We are assessing any potential impact and will continue monitoring case filings and case processing to quantify any impact on the courts,” said Levey about the effect of the leadership change on court proceedings, which were paused for several hours Wednesday morning.
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In a Zoom conference held Wednesday night, Worrell said the programs she championed gave people an opportunity to right a wrong. Minors, for example, won’t get stuck with a mug shot that would follow them for the rest of their lives, she said.
“I always said I was going to reduce mass incarceration in our community,” Worrell said. “That doesn’t mean no one went to prison. Many people went to prison because those people had proved to be a danger to our community.”
Worrell criticized her successor’s decision to end the diversion programs, claiming it will impact communities of color.
“It’s not about giving better plea deals to Black and brown people, it’s about giving plea offers to everyone and by doing that Black and brown people will benefit because Black and brown people were those who always suffered at the hands of individuals who were not giving justly offers to everyone,” she said.
Along with the canceling of such programs, the two deputy chief assistants on Worrell’s executive team were fired Wednesday morning.
The new chief assistant will be Ryan Williams, Worrell said. Williams ran unsuccessfully against Worrell in the 2020 Democratic primary.
Williams previously worked at the State Attorney’s Office, including under Worrell’s predecessor, Aramis Ayala. But Williams left the office for the Fifth Judicial Circuit, where he prosecuted murder cases that Scott, as governor, reassigned from Ayala’s office due to her opposition to pursuing the death penalty.
When asked what she makes of Williams being immediately brought in, she said, “I think it speaks for itself.”
“Interestingly, it’s my understanding that the person who’s taking place as number two, is one of the individuals who lost to me in an election,” Worrell said at a press conference two hours after her suspension was announced. “You see how that works? You lose an election and then you can just come back.”
On Wednesday morning, Williams sent an email to staff informing them that all assistant state attorneys would sign oaths and be sworn in by the new state attorney, according to records obtained by the Sentinel.
“It is my great hope that every one of you in our agency, all here trying to make a difference in your community, will move forward with us in our effort to ensure just results in the courtroom and help keep our community safe,” Williams wrote. “More than anyone, you all know there is a great deal of work to do to make this office the place it can and must be for the citizens of Orange and Osceola County.”
Williams added that there will be additional meetings and communications and asked for patience as “we evaluate each part of the office to determine what, if anything, must be addressed for improvement.”
DeSantis contended that Worrell’s political agenda interfered with her role as the state attorney, accusing her of maintaining policies or practices that allowed accused criminals to evade prosecution, improperly enforcing minimum mandatory sentences for gun and drug crimes, allowing juveniles to avoid incarceration and limiting charges for child pornography.
Worrell said she will fight her suspension in court and plans to continue her reelection campaign.
Editor’s note: This story has been updated based on additional information from the State Attorney’s Office to clarify that Andrew Bain’s announcement rescinding what he called a “catch and release policy” did not refer to an existing, specific policy.
Amanda Rabines of the Sentinel staff contributed.
ccann@orlandosentinel.com
