CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, April 27, 2020

Murray on Populist Prosecutorial Nullification

Kerrel Murray (University of North Carolina School of Law) has posted Populist Prosecutorial Nullification (96 N.Y.U. L. Rev., Forthcoming) on SSRN. Here is the abstract:
No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework. To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. In so doing, it finds that local elections make all the difference. There may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification. It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement. These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification. Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

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Respectfully, I question the “burgeoning need” to address the problem prosecutors embracing “categorical nullification to the polity’s electorally expressed will…”

As someone who started his career as a prosecutor, and has now spent almost two decades practicing criminal defense, I submit prosecutors failing to enforce criminal laws is perhaps - the least significant problem in the criminal justice system

A few examples to consider:

-Yates v. United States:

U.S. Supreme Court overturned a federal criminal conviction – not because the defendant’s conduct was constitutionally protected, not because of a procedural violation, rather because it was overcriminalization. That is, no reasonable person could have known throwing a few fish overboard would result in violating federal accounting fraud laws.

-Justice Gorsuch’s Dissent in Gundy v. United States:

Criticizing the Court for letting Congress “endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.”

AGAIN RESPECTFULLY, I submit the criminal justice system has bigger fish to fry than the central premise chosen here.

Posted by: Lawrence Scott Koplow | Apr 28, 2020 8:13:00 AM

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