The Dangers of Prosecutorial Nullification

Choosing to ignore entire categories of crimes or criminals is a threat to the separation of powers.

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Manhattan District Attorney Alvin Bragg after a press conference on April 18, 2023 in New York City. (Photo by Michael M. Santiago/Getty Images)

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. 

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  1. Jhendrix58

    This article is excellent. It is an example of why I think the value of a Dispatch subscription is well worth the money.

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    1. Becker

      Glad you enjoyed it! Thanks for reading.

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    Ben Connelly

    Process matters. It may be (likely is) the case that we should change certain laws and regulations, eliminate or reduce certain punishments and enact serious criminal justice reform. This backdoor of prosecutors refusing to enforce laws is not that. Worse, it will keep anything productive from happening on the reform front, meaning that we will be stuck in this limbo that undermines the rule of law.

    You mention differences in kind and degree. The difference between Bragg’s undermining of the rule of law and Donald Trump’s is a difference in degree. They are the same kind.

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    Ben Connelly

    This was an excellent article! Well-written. I’m glad the Dispatch published this.

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  4. Token Liberal

    It's not just prosecutors. There has been a proliferation of right wing sheriffs refusing to enforce laws they don't like, often gun or covid related (and don't let's get started on the whole "constitutional sheriff" fraud).

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    1. DTruitt

      Where? Be specific.

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      1. Token Liberal

        https://www.miamiherald.com/news/coronavirus/article242178781.html

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      2. Token Liberal

        https://everytownlaw.org/when-sheriffs-refuse-to-follow-the-law/

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      3. Token Liberal

        https://theconversation.com/sheriffs-who-see-themselves-as-ultimate-defenders-of-the-constitution-are-especially-worried-about-gun-rights-198485

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  5. Avatar photo
    Gibby

    Very very big problem. And Donald Trump is just a distraction from it

    The Michigan state shooting could have been prevented if the shooter had been charged with a felony previously then he wouldn’t have been allowed to purchase a gun.

    Left wing policies are not solving our nations problems. When this becomes apparent there will be a sea change

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  6. Halvor

    Exhibit please? Nothing jumps out at the reader to illustrate the “categorical non-enforcement of certain crimes.” For the benefit of dim-wits like myself, name one prosecutor and one crime that they are *categorically* discontinuing to prosecute ever again.

    I have a cop friend who patrols the worst precinct in the city. He tells me that every (!) Black young man he sees is committing a crime, has warrants, or has knowledge of crimes being committed. Sometimes, he stops someone and takes him to jail (or has him taken to jail). Sometimes he lets the individual go on. It depends. I think he’s wrong about the hood, maybe personally biased (even though he has Black buddies), and certainly systemically racist. The point is: discretion is built in from the ground up. He doesn’t arrest everyone because then he’d have to . . . arrest everyone, and the jail lets people go when it’s full.

    If the writer spent time among the lower class of the Deep South they’d be struck by the total, systemic expurgation of any conversation about the details of criminal process. People are taken to jail. People are turned loose. Blessed be the name of The Man. With infallible resistance, poor people disclaim any knowledge of charges, pleas, adjournments, court dates, contempt warrants, or sentences. The only technicality poor folk talk about is bail bonds.

    It’s a brilliant strategy of resistance.

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      Ben Connelly

      “It’s a brilliant strategy of resistance.”

      Can you tell me what honest difference there is between this and Donald Trump’s willingness to trample on the rule of law?

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      1. Halvor

        The law makes a distinction between passive and active resistance. Also, Trump has no excuse.

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          Ben Connelly

          True. That said I don’t consider transgressive “resistance” much of an excuse. It would be better to work to change reform the system in question, including especially because it would better achieve the results you desire: a system in which there isn’t disproportionate impact upon impoverished, minority communities.

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    2. DTruitt

      Hillsborough County States Attorney stated last year that he refused to enforce the Parents Rights in Education law enacted by the Florida Legislature last year. Gov. DeSantis then fired him and appointed a replacement prosecutor who pledged to enforce all Florida laws.

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      1. Slaffey

        But of course he/she will not enforce all of Floridas laws. No prosecutor does.

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        1. DTruitt

          They are all required to enforce all laws. Exercising prosecutorial discretion for the purpose of maximizing the return on prosecutorial resources is entirely appropriate. Refusing categorically to enforce a law because someone disagrees with it is entirely inappropriate and lawless.

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      2. Halvor

        That doesn’t count. Promising not to patrol obstetrics clinics isn’t what the article is complaining about (I hope). And did that prosecutor abuse discretion by failing to prosecute a particular perp? No, it was a spat over hypotheticals. Again, a different subject.

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        1. DTruitt

          Of course “it counts”, whatever the eff that means. The states attorney openly nullified the law which is precisely what this post is all about. He declared it to the public. And he got fired as a result, appropriately do.

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    3. Drsterrett

      https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf

      https://da.lacounty.gov/sites/default/files/pdf/SPECIAL-DIRECTIVE-20-07.pdf

      https://www.californiacountynews.org/news/2023/04/pamela-price-turns-alameda%E2%80%99s-criminal-justice-system-its-head

      https://files.suffolkdistrictattorney.com/The-Rachael-Rollins-Policy-Memo.pdf

      I share your concern for process - but this is something else entirely.

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      1. Halvor

        Thanks, I glanced through the Manhattan DA policies. The only *categorical* refusal involved obsolete crimes like obscenity and adultery. All the others were qualified by “unless,” “except” or “if”, or were handled by diversion. That’s conditional, not categorical, right? But I’m not a lawyer, as you can tell.

        Manhattan still prosecutes shoplifting, so an “attenuated” financial reporting crime against somebody who doesn’t still reside in the luxury building they own is ok by me.

        I want Trump to feel like any guy who complains, “Every time I go to court I come back with some kind of bullshit.”

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          WKDawson

          Yeah, as usual, the real story is a _little_ more nuanced.

          At least what you say makes sense. This isn't Mayberry, it isn't some sleepy town where the Dunderheads call about some noise in their garage and it turns out to be the neighbor's dumb dog. Bragg cannot hire a zillion more police officers to address every crime in the city, so, unfortunately, shoplifting just isn't high on the high-priority list. In Mayberry, that would be the biggest crime in a decade, but in NYC, it happens several times a day.

          I don't know if he made a good decision to go after Trump or not, but perhaps he is the type who feels he has to pound the biggest punk first so most of the riff-raff will know he means business. A kind of top-down sort of guy. It's possible at least.

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    DougAz

    The most outrageous version of this was the Ken Starr witch hunt of Bill Clinton. Who broke no law in having a legal affair with Lewinsky. But of course Conservatives will never see persecution of a legally innocent man like Clinton as wrong.

    Personal moral judgements are too often the Conservative attorney's guide.

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    1. DTruitt

      Clinton pled guilty to lying under oath about his sex in the Oval Office.

      And such was also a violation of the law, even if not charged, as a matter of sexual harassment, wherein Clinton unlawfully used his position of power to extract sexual favors from a subordinate. Exactly the same crime that Harvey Weinstein was convicted of, and is now doing hard time in prison.

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        DougAz

        Sorry Truitt. You are wrong. Clinton never pled guilty.

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    2. Just this guy

      I think that you’re right: Mr. Clinton broke no law committing adultery. But you’re also wrong: he was not innocent, because he was found guilty of civil contempt in a sexual-harassment case. Mr. Starr was investigating whether the then-President had committed perjury.

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      1. DTruitt

        Adulatory is not a crime. Lying under oath is a crime. Committing sexual harassment of a subordinate by demanding sexual favors also is a felony punishable by hard time in prison. Just ask Harvey Weinstein. Or R Kelly, or thousands of others who were not protected by the lib Dem/media establishment as Bill Clinton was.

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        DougAz

        I am pretty sure Clinton was not found guilty in that case.

        He was cited for contempt of court.

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        1. Just this guy

          He settled the sexual-harassment case for $850,000; he has maintained his innocent since; his accuser has maintained his guilt since.

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          1. Halvor

            Also, the immateriality of the gamey deposition (hence, the civil contempt didn’t add up to perjury) and the dismissal. No Judge would ever let Paula Jones bring her tale to a jury.

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            DougAz

            There you go!

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    3. David.Neidert

      Yeah. Neither perjury nor instruction of justice are real crimes.

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        DougAz

        It seems out of bounds to put a legally innocent man under oath for a legal personal affair.

        He lied about that. BFD. So what.
        No cons care about the mountain of lies by Bush-Cheney, his administration, Bill Barr et al. Let alone Clarence Thomas and now Gorsuch lying. In writing even on a federally required disclosure document.

        The hypocrisy of Conservatives is so far, unbounded.

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        1. DTruitt

          It is illegal to lie to law enforcement or a court when under oath. That is one of the most important foundational obligations of all persons under the law. Without that, there is no law.

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            DougAz

            Laws? You mean like Republicans break ? There is a long list there.

            But bub..nope. Clinton never pled guilty.

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        2. Just this guy

          He was put under oath to testify in a civil sexual-harassment case.

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      Show Jay Janney the 🚪!

      I gotta admit, I thought Kevin Klinesmith altering documents submitted to the FISA court was worse. The question was whether Carter Page was a CIA contact or source, and he altered it to say he was neither, which greatly influenced the surveillance on page. Kevin Klinesmith pled it down, but still pled guilty.

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        DougAz

        Yes.
        Our beloved sacred? Institutions, FBI, CIA, DoD, Marines, Navy, Seals, Army, AF have allowed political infestations. Justice, SCOTUS.

        It's sad

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  8. Nordic_man

    In other news Americans care more about low taxes than a functioning state. We have the right to a *speedy* trial in the constitution, but given the expansive criminal codes that seek to impose order while maintaining the guise of freedom (because many over broad laws work because they are only enforced on “those” people thus limiting their broadness in application of not text), and our lack of caring enough to fund the judicial system to keep up we end up with a plea bargaining system with juries for the rich.

    Justice for me but not all them. America, if you want to have a shred of moral leg to stand on, try actually paying for the freedoms you claim to live up to

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  9. Trichwages

    Why would you have an issue with a DA instructing his prosecutors 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.’ This happens all day, every day, all around the country but some of the other criteria would be political influence, status and wealth.

    Why not write an article about the fact that with crime rates still historically low, we are now trending every more overtly into using the law to police certain types of people and behaviors in order to criminalize things that would be better handled by rehab, institutionalization or other alternatives.

    Personally, I want our murder clearance rate to go up by using resources to hire more detectives and provide witness protection to at-risk witnesses in gang ridden areas than to use those resources for prosecuting someone for stealing $5, while we let some who swindle millions get away with it because no evidence of wrongdoing was discovered within a 2-year (paltry) statute of limitations.

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    1. DTruitt

      That’s not what Bragg did. And you know that. You are lying.

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      1. Trichwages

        I just quoted the article. Take it up with the author :-)

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      Connie

      “… using the law to police certain types of people and behaviors in order to criminalize things that would be better handled by rehab, institutionalization or other alternatives.”

      Ah! But you cannot force someone to go to rehab, and involuntary admission into a mental ward requires a high bar to be executed. Beds are scarce, so they do not admit those whose mental problems stem from drugs (which includes a lot of the homeless population).

      The harsh truth is you cannot help someone who does not want to help themselves. If they have hit the skids (whatever that entails for the individual), a choice becomes apparent. Keep doing what you are doing, and living how you are living (with things no doubt getting progressively worse), or decide to change your life. If one chooses the latter, there are so many helping hands out there that would support the transition to a better, healthier life. Charity organizations, churches, and good-hearted people are just a right decision away.

      Having said all that, the opioid crisis in this country is heart-breaking. Opioids are in a class by themselves, as they actually rewire the brain. Other illicit drugs don’t even come close to the depravity caused by opioid addiction.

      I lay this opioid crisis directly at the feet if the Sackler family. Those evil, vile people should all be stripped of their wealth, and in prison. Those SOB’s knew OxyContin was addictive, and, oh… how the money rolled in. The Sacklers were the drug dealers, and the FDA the paid off authorities (legally, although it should not be) who offered them protection.

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        Ms. SSM

        I forced people to rehab all the time as a prosecutor. You can hold charges over someone’s head for years. Especially drug charges. In fact after criminal charge is probably the easiest time to force rehab. People want to stay out of prison or conviction. In fact it gets harder once they realize going to jail on a drug charge means they will parole out 3 months later. That’s shorter then rehab.

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          Connie

          Once they complete the program, how do you keep them off drugs? In your experience, what was the rate of relapse after you forced them into rehab? Who pays for the rehab?

          Thank you for being a prosecutor. It had to be a thankless job at times.

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            Ms. SSM

            I’m not sure of the success rate. Some people I never saw again (a good sign). Some were back in a flash.

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    Blake Fischer

    The 2% stat of jury trials is shocking. No wonder I haven’t been called for jury duty in 20 years!

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      Connie

      Strange you would say that… I have been called for jury duty five times in three different states (counties), and one time to a federal court.

      That’s what you get for voting… ;) Actually, I understand it’s my civic duty to serve, and it’s a sobering experience when you are asked to sit on a jury and decide the guilt or innocence of a man. You hold his future in your hands. That’s a huge deal, and you don’t want to get it wrong.

      Perhaps part of the reason there are so many plea deals is both sides question the commitment of the jurors, as so many resent being there. That’s really sad.

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        Blake Fischer

        I would love to serve on a jury, actually. But I got called once and immediately dismissed no doubt because I looked 15 at the time. And I vote in every single local election, so they must have a different methodology to selections here in OK.

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          Connie

          I doubt it… it’s just the luck of the draw.

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    2. Nordic_man

      Now imagine you are in jail and innocent, but can’t make bail. In comes a prosecutor who says “if you admit guilt I can get you out of here faster than a trial could, and the trial comes with the risk of a jury and larger longer sentences for more crimes” I wonder how many innocent people accept the guilty plea

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      1. Trichwages

        Yeah - I am a lot happier with not prosecuting low level crimes than I am with using prosecutorial discretion to over-charge in order to force plea bargains—especially considering our shamefully inadequate and underfunded public defender system.

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