Jury nullification and prosecutorial discretion 'one and the same'

Professor Glenn Harlan Reynolds wrote in the Washington Post last week:

About the the need for a little more activism among jurors to counter the ever increasing authority of prosecutors. “Prosecutorial discretion,” is where a prosecutor decides not to bring or pursue charges against you because doing so would be unfair, even though the evidence is strong. Or it can happen through “jury nullification,” where a jury thinks that the evidence supports conviction but then decides to issue a “not guilty” verdict because it feels that a conviction would be unjust.

Strangely, the former is much less controversial than the latter. Prosecutorial discretion is regularly applied and generally regarded as a standard part of criminal justice. Its application may, on rare occasions, create controversy — such as when TV host David Gregory got a pass for what even the prosecutor called a “clear violation” of D.C. gun law when he displayed a high-capacity ammunition magazine on “Meet the Press” or when U.S. Attorney General Loretta Lynch invoked prosecutorial discretion as a reason for not pursuing charges against disgraced IRS employee Lois Lerner. But the concept of prosecutorial discretion is generally regarded as sound.

So-called jury nullification, on the other hand, gets far less respect. Though it is clearly within the power of juries to refuse to convict whenever they choose, judges and prosecutors tend to view this practice with hostility. They may not be able to stop juries from exercising their power, but they do their best to keep people from telling them that they have this option: Periodically, we see stories of people prosecuted for handing out jury nullification leaflets outside courthouses. Prosecutors in the District have even complained aboutbillboards telling potential jurors about jury nullification.

That may change, however, with New Hampshire’s new legislation requiring that juries be informed by the court that they may refuse to convict if they feel a conviction would yield an “unjust result.” The New Hampshire legislation is good, but in my opinion it doesn’t go far enough. Juries should be empowered to punish the prosecution when they feel the prosecution is abusive or malicious.

In today’s system, prosecutors hold almost all the cards. The prosecutor’s unreviewable decision whether to charge someone with a crime is, for all practical purposes, the most important part of the criminal justice system, yet it is a decision to which no due process attaches.

In a recent Columbia Law Review essay, titled “Ham Sandwich Nation: Due Process When Everything Is A Crime,” I noted that “prosecutors count on the fact that when a defendant faces a hundred felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive. Then, of course, there are the reputational damages involved, which may be of greatest importance precisely in cases where political motivations might be in play. Worse, prosecutors have no countervailing incentives not to overcharge. A defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity.”

So I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust — and, if that happens, let the defendants’ attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding — in which case the defendants’ costs should come out of the prosecutor’s budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I’m not sure we need to go that far).

Over the past several decades there has been a massive shift of power toward prosecutors, the result of politics, over-criminalization, institutional leverage and judges’ failure to provide supervision. It’s time to redress the balance. Although it doesn’t go far enough, New Hampshire’s proposed legislation is an excellent start.

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