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Refusing to Defend Unjust Laws: Prosecutorial Discretion or Prosecutorial Nullification?

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A prosecutor's exercise of discretion is the power to deprive an individual of his reputation, his liberty, and even his life. A prosecutor's discretion typically involves decisions over what crimes to investigate or not investigate, what crimes to charge or dismiss, whom to charge, whether to allow a defendant to plead guilty or be granted immunity from prosecution, and the amount of punishment to be imposed on the offender -- even to the point of seeking the defendant's death. Discretion is at the heart of the prosecutor's function; it is virtually unlimited, and virtually unreviewable. The exercise of discretion, moreover, involves so many factors, judgments, and values, and under such widely varying circumstances, that it is impossible to reduce to a simple formula, or to articulate meaningful professional standards to guide the exercise of discretion, except in the broadest terms.

Attorney General Eric Holder's recent pronouncement to state attorneys general that they have no obligation to defend unjust laws -- Holder was referring specifically to laws banning gay marriage -- has provoked the predictable firestorm from Republican attorneys general, who claim that they have a duty to defend all state laws, even laws that may be blatantly unconstitutional, as several state courts recently have decided in striking down such laws as a violation of equal protection. Although a seemingly isolated event in the fierce political battle over gay rights, Holder's declaration that prosecutors, in effect, should not defend unjust laws is a perfectly rational application of the doctrine of prosecutorial discretion, and accords with acceptable standards governing a prosecutor's exercise of discretion. One wonders whether Republican prosecutors would be as outraged if Holder stated that a prosecutor had no obligation to defend abortion clinics from anti-abortion protesters, on the ground that the protesters are engaging in constitutionally protected speech.

To some critics, however, Holder's position should be viewed not as a permissible exercise of prosecutorial discretion, but rather, as an impermissible exercise of prosecutorial "nullification." Indeed, if one interprets Holder's position within the concept and rhetoric of nullification, it places Holder's position within the prism of an exercise of a power that is seen as lawless and tyrannical. (Recall the Civil War Confederacy's appeal to nullification of federal law). Today, the idea of nullification in legal discourse is most often employed in connection with jury decision-making, and the view that since the jury is the voice of the community, and of its values, the jury should have the power to "nullify" the law, that is, to refuse to follow the judge's instructions on the applicable law when the jury believes the law is unjust, or a belief that the jury's sense of fairness should prevail over the rigidity of the law. However, critics claim, jury nullification is a violation of a juror's oath to apply the law as instructed by the judge, and encourages individuals to make their own personal determinations as to which laws they will choose to obey, and which laws they will permit themselves as a matter of conscience to disobey. Such a practice, it is claimed, would invite chaos, and lead to the collapse of the Rule of Law and the legal system in general.

But juries, unlike prosecutors, are not law enforcement agencies, and are not vested with the vast discretion given to prosecutors to make the kinds of decisions with respect to whether to enforce certain laws, and how vigorously to do the enforcing. Prosecutors decide every day -- as a matter of policy and justice -- whether and to what extent to use their limited resources to enforce the law. And the kinds of determinations that prosecutors make every day is whether it would be unjust to enforce or defend certain laws, especially if the prosecutor believes in good faith that the law is invalid, unworkable, or unconstitutional. Thus, Holder, who has sued several states over laws that require voters to show identification before voting, argues that such laws, as with bans on gay marriage, also are unconstitutional and should not be defended. And even though some of these Republican state attorneys general believe that Holder is intruding into state autonomy and sovereignty, they surely know that they are not authorized to enforce laws under their state constitutions that violate the federal constitution.

One caveat is in order when a prosecutor claims that he is simply using, and not abusing, the vast reservoir of discretionary decision-making. Quite obviously, a prosecutor uses discretion illegitimately when he appears to making decisions based on personal reasons, such as helping a friend and hurting an enemy. Whether a prosecutor is exercising discretion for personal or political reasons may be difficult to unravel. Prosecutors operate in a world where moral values, and a sense of justice, necessarily guide their exercise of discretion and decision-making. But may a prosecutor in exercising discretion take into account his own personal morality and sense of justice? Holder has called gay rights one of "the defining civil rights challenges of our time," and violations of gay rights would appear to offend his sense of morality and justice.

But a prosecutor's personal sense of morality and justice is not always decisive. Thus, in a controversial New York State murder case several years ago, the Bronx County District Attorney, Robert Johnson, refused to invoke New York State's capital punishment law in a high-profile case involving the murder of police officer Kevin Gillespie. Johnson said he would use his discretion aggressively to seek life without parole for the killer, but refused on principled grounds of morality and justice to seek the death penalty. Governor George Pataki, who was elected based in part on his pro-death penalty stance, removed Johnson from the case and appointed a special prosecutor. Johnson sued the governor and lost. Is there any lessor here? Perhaps it shows that a prosecutor's exercise of discretion, however principled and rational, may be overridden sometimes by the political and legal process.

Holder's position on state bans on gay marriage is as rational and principled as Johnson's, but much less open to attack than Johnson's. Holder decries a law that is not only morally repugnant, as Johnson did, but also almost certainly unconstitutional. Defending such laws, as the Republican attorneys general claim they must do, may be a principled exercise of discretion, but a foolish and irrational one.