In all likelihood people will get arrested at Lafayette Park in Albany tonight, which would be the fourth night of active civil disobedience of the state curfew. For the past three nights, the occupiers of Academy Park have been crossing over from their safety zone of city jurisdiction to the danger zone of state jurisdiction. Gov. Cuomo has lived up to his vow to enforce the curfew where he can by having state troopers arrest the border-crossers, but the gestures have been futile. David Soares, the district attorney of Albany County, refuses to prosecute the people who break the Lafayette curfew during the Academy occupation, so those who get nabbed are processed and released, having counted coup as civil dissidents by getting arrested with minimum personal inconvenience. This leaves Cuomo powerless to punish the occupiers and trespassers, should that prove his desire. Now, however, Cuomo (or his counselors) are considering alternative means of prosecuting the occupiers without depending on the defiant Soares. The Albany Times Union this morning raised the possibility of Cuomo appointing a special prosecutor through the state attorney general's office to deal with the occupiers, and a county Republican leader has now publicly urged this approach upon the governor.
Another option exists, but it's political dynamite. Cuomo could get his way with the occupiers, not by avoiding Soares, but by eliminating him. According to Article XIII, Section 13(a) of the state constitution, "The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before doing so the governor shall give to each officer a copy of the charges against him or her and an opportunity of being heard in his or her defense."
Whenever controversial prohibitory laws are on the books, the power of removal has been used to intimidate dissident officials into enforcing unpopular measures. A century ago, concerned citizens frequently petitioned governors of New York to remove sheriffs, prosecutors and even mayors for failing to enforce vice and excise laws. Governors rarely used their power, but petition campaigns provided them opportunities to warn lesser officials to do their jobs. Were a governor to act on his prerogative, a district attorney would have a constitutional right to be heard in his defense, but the decision to remove would be entirely up to gubernatorial discretion. In a theoretical scenario, Soares would have little defense against Cuomo's assertion of the rule of law, since his argument against prosecuting the occupiers, as I understand it, is simply that violent crime has greater priority for him. Whether Cuomo would ever take this option depends on how badly he wants to end the occupation -- occupiers and their sympathizers probably exaggerate his hostility somewhat to build themselves up -- and whether he'd be willing to risk the political consequences of destroying a controversial but popular prosecutor. But there are grumblings in the media about Soares's selective enforcement of law, and starting a petition campaign for his removal would be a no-lose proposition for partisan provocateurs. Occupy Albany has now outlasted the Wall Street occupation that inspired it, but with winter approaching a feeling grows that the endgame may not be far off.