Prosecutorial Nullification

December 8th, 2014

In the wake of recent high-profile decisions by grand juries not to indict, I have seen chatter about the notion of grand jury nullification. That is, grand juries decide that a prosecution is unfair or unjust, and vote not to indict. Historically, this had been one of the functions of the grand jury, and the petit jury as well, to serve as a check on illegitimate prosecutions. Though, prosecutors fight the notion of nullification, and refuse to allow a nullification instruction to be provided to jurors.

I have also seen chatter about the related concept that the prosecutors threw the indictment, by presenting far too much evidence in favor of the defendant, in hopes that the grand jury will not issue a true bill. The phrase “prosecutorial nullification” has been used to refer to a decision by a prosecutor not to even seek an indictment. Though, perhaps a species of that decision is to present a case where the prosecutor knows the jury will not issue a true bill, under the auspices of presenting all the evidence. Both may be described as attributes of the ever-present “prosecutorial discretion.”

These two types of “prosecutorial nullification” have a lot of salience to contemporary debates over the failure of Attorneys General to defend laws in court. One approach, would be for the AG to defend the law half-heartedly, knowing that his defense will lose. Or, the AG can flat-out not defend the law at all. I have been really critical of the latter approach, but I acknowledge the former approach would be even worse. At least let someone give the law a good defense.

But, the inevitable problem arises in the context of defending the constitutionality of statutes–usually no one but the government has standing to defend it. In states where the Governor (who arguably may or may not have standing) agrees with the AG’s prosecutorial nullification, the law will fall without any defense. (Such as the case with the Pennsylvania AG, who previously did not defend the state’s marriage law, refusing to defend a gun law).

Perhaps this recognition of prosecutorial nullification, as understood in the context of grand juries, should change the way we look at standing for purposes of defending unwanted laws.