The Dangers of Prosecutorial Nullification

Upon taking office as the 37^th District Attorney for New York County (Manhattan), Alvin Bragg wasted no time signaling his agenda. His famous “Day One” memorandum laid out new policies and procedures governing the prosecution of crimes. It declared Manhattan’s prosecutors would not enforce several provisions of the New York Penal Code and, in some cases, would charge defendants with lesser crimes when the evidence supported a more severe charge, subject to harsher sentencing. 

Additionally, assistant district attorneys were instructed to “use their judgment and experience to evaluate the person arrested, and identify people: who suffer from mental illness; who are unhoused; who commit crimes of poverty; or who suffer from substance use disorders” to determine whether to charge any given crime. What constituted a chargeable offense for one person was not to be a chargeable offense for another, depending on the evaluation of the particular prosecutor. 

Now Bragg is in the news not for crimes he refused to prosecute, but for an old, attenuated charge against a former president residing outside his jurisdiction. This dichotomy has renewed a much needed debate on the scope and nature of prosecutorial discretion and its troublesome offshoot—prosecutorial nullification. 

Prosecutorial discretion refers to the broad authority granted to prosecutors in the conduct of their work. Discretion manifests itself first in the prosecutor’s choice to charge or not charge a particular person with a particular crime. Perhaps the evidence at the prosecutor’s disposal is slim or inconclusive, subject to objection at trial. Faced with limited resources, prosecutors routinely focus on cases with the strongest evidence. This is natural and desirable. Prosecutorial discretion may also involve prioritizing certain crimes for prosecution and deciding which crimes deserve more resources. 

However, what happens when discretion on how to enforce the criminal code evolves into categorical non-enforcement of certain crimes? This phenomenon is known as “prosecutorial decriminalization” or “prosecutorial nullification.” 

In the American legal system, “jury nullification” describes the process by which defendants are acquitted because a jury disagrees with the applicable law, or has sympathy or bias for the defendant. In other words, they nullify the law to achieve a desired result. In the 19^th century, this often manifested in overtly racist ways in the post-bellum South. 

Prosecutorial nullification takes the essence of jury nullification and institutionalizes it. When Bragg declines to prosecute certain crimes within his jurisdiction, he is engaging in categorical prosecutorial nullification of the laws passed by the New York state legislature. The difference between deemphasizing a crime and categorical non-enforcement may seem a difference in degree, but it is truly different in kind. Our republican form of government ensures the separation of legislative, executive, and judicial powers. When prosecutors declare a policy of non-enforcement of a given criminal law, many critics argue they are declaring a de facto repeal of that law, essentially usurping legislative authority over the criminal code. 

Many on the right, and some on the left, have begun questioning such policies. Former Attorney General William Barr established the Presidential Commission on Law Enforcement and the Administration of Justice in 2020, specifically aimed at investigating prosecutors who “refused to follow the law.” And the people of San Francisco recalled progressive District Attorney Chesa Boudin in part because of his prosecutorial non-enforcement. 

But considerable support for its application persists. 

In April 2021, W. Kerrel Murray published a thorough examination and defense of what he called “Populist Prosecutorial Nullification” in the New York University Law Review. Murray, an associate professor at Columbia Law School, argued that explicit declarations of non-prosecution bring transparency to a policy that has existed behind courthouse doors for years. This notice empowers the people to evaluate and vote on the policy at the next election. 

In Murray’s estimation, jury nullification, curbed of its worst abuses by the civil rights movement, was an essential populist check on the criminal justice system. With the decline in jury trials and the rise of plea bargaining (only 2 percent of federal cases go to trial, and that figure is less than 2 percent in many state courts), this supposed check on government power has vanished. Murray’s emphasis on the importance of jury nullification echoes the drum beat of Georgetown Law professor Paul Butler, who for decades has encouraged black jurors to nullify laws in cases against black defendants to combat what he perceives as a system stacked against them. 

One flaw in Murray’s assessment is the emphasis he gives to populist passions. Curbing those passions lies at the heart of the separation of powers within the criminal justice system. The right to pass or repeal laws resides exclusively with the legislature, the people’s representatives. Having proscribed an act, and provided a means of punishing the actor, the legislature hands the law to the executive branch to enforce it. In turn, the prosecutor presents the state’s case to a neutral judge and jury for ultimate resolution. This process is meant to blunt the worst populist tendency of all—arbitrary, mob-driven justice. 

Nevertheless, Murray insists that the Founders’ emphasis on a “powerful jury” reflected “a desire for the demos (the people) to exercise localized control” in the form of jury nullification. Thus, prosecutors must fill the populist gap left by the decline of the jury trial. Murray argues that the people need their own localized veto against the authority of the state, not only against arbitrary enforcement by prosecutors, but against the law itself. 

While the emphasis of greater localized control is admirable, it misses the mark. Under such a framework, a state legislature may protect its constituents’ right to property with a series of trespass and burglary laws and provide assurances to those with few means to protect themselves. Nevertheless, a populist prosecutor could determine that those assurances were misguided and unfair, and publically decline to enforce the applicable law. Doing so effectively rolls back protections promulgated by the people’s legislative body. 

Roger Fairfax Jr., the current dean of American University’s law school, posited in 2011 that “over-criminalization” has resulted in an implicit “delegation of authority to prosecutors to determine which, if any, of these laws are to be enforced.” Worries about over-criminalization are important, but they do not justify surrendering legislative authority. Yes, prosecutors must choose their cases carefully, but that does not justify their unilateral veto of inconvenient laws. The result would be a system where legislatures simply establish the range of what “could” be illegal, but a single executive (the prosecutor) determines what the law is, election by election. This is not so much a unified legal system but a return to feudal justice, with local lords having final say on what the law is and is not within their fiefdom. 

Returning to Murray’s framework of populist prosecutorial nullification, it is important to note that he does not insist prosecutorial nullification is always justified or defensible. For Murray, an important prerequisite is that the chief prosecutor (district attorney) must explicitly campaign on the non-enforcement of specific laws. This public stance, a form of referendum strapped to the candidate’s chest, gives the localized electorate their democratic say in the matter. 

Bragg certainly campaigned on non-prosecution, but even under Murray’s framework, he likely falls short of capturing the imagined “will of the people.” In a borough of 1.6 million people, Brag received 86,000 votes in the Democratic primary, in a Democratic stronghold. This is where the model falls apart, even assuming the validity of the populist justification. A number of factors decide elections—stalwarts voting the party line, backlash against the ruling party, low turnout in the primary, high turnout in the primary but low turnout in the general, rain on Election Day, etc. The criminal code, and the protections it provides to citizens, should not be subject to alteration by electoral tarot readings. 

Blurring the lines between legislative and executive powers is concerning on its own, but that concern grows with the decline of jury trials and the rise of plea bargains. The vast majority of defendants no longer receive judicial adjudication. Instead, they receive what Judge Gerald E. Lynch of the 2nd Circuit Court of Appeals has referred to as “prosecutorial adjudication,” meaning the accuser is now functionally the judge in most cases. In short, the prosecutor’s expansive discretion increasingly incorporates elements of legislative and judicial authority, contrary to basic notions of separation of powers. 

Commentators on the left tend to accuse opponents of prosecutorial nullification of exaggerating the pervasiveness of the problem. But there is no need to exaggerate. Prosecutorial nullification is happening every day, with a growing body of intellectuals and practitioners rationalizing its existence, including law school professors, deans, judges, it even has a champion in the halls of the Supreme Court. W. Kerrel Murray clerked for Ketanji Brown Jackson while she served as district judge for the District of Columbia, and is now one of her clerks at the Supreme Court. Prosecutorial nullification is not a novelty act–it is painfully mainstream. 

But runaway prosecutorial discretion is not simply the result of progressive, power-hungry district attorneys; to the contrary, it is the result of legislatures refusing to assert their own prerogative. Legislatures can either address the resource deficiencies faced by prosecutors, or they can take the lead in cutting back runaway criminal codes, but they cannot pretend that no problem exists. 

In the meantime, a return to traditional notions of prosecutorial discretion is essential. 

In 1940, Justice Robert H. Jackson, while serving as U.S. attorney general, delivered timeless advice to an assembly of prosecutors. He described the prosecutor as possessing “more control over life, liberty, and reputation than any other person in America.” 

He urged each prosecutor to have a “detached and impartial view of all groups in his community” but acknowledged they have discretion to choose their cases. He charged them to “select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.” However, he warned against “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” (emphasis added)

He explained: 

With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books … to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies… In time of fear or hysteria, political, racial, religious, social and economic groups, often from the best of motives, cry for the [blood] of individuals or groups because they do not like their view.

Jackson closed his talk with a few simple words on what makes a good prosecutor: “Safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” 

Applying these principles to Bragg’s actions and policies, there is reason for concern. Can a prosecutor “serve the law,” when he refuses to apply it? Is he “detached and impartial” when he exempts certain classes of persons from the consequences of the law? Finally, has he shamefully exercised the most dangerous power of the prosecutor? In the case of Donald Trump, did he not pledge to get the man and find the crime later? No man is above or below the law; this applies to the law’s protections and its consequences. It seems an honest application of Justice Jackson’s charge to Alvin Bragg would return one verdict: guilty of abuse of discretion. But, then again, it’s nullification all the way down.