The Dangers of Prosecutorial Nullification
Upon taking office as the 37th 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.