An inspiring editorial, Refusing to Defend Unjust Laws: Prosecutorial Discretion or Prosecutorial Nullification?, by Professor Bennett L. Gershman of Pace Law School has shed light on the national importance of Attorney General Eric Holder’s recent attempt to address state laws that may be unjust or unconstitutional. In past weeks, Holder has led the charge to denounce such laws by directing state attorneys general that it is within their discretion to refuse to defend such laws.

Professor Gershman, who is a nationally recognized authority in the field of constitutional law and well renowned expert on prosecutorial misconduct, highlights this development in both national politics and law, explaining that Holder’s directive is both an important and well principled exercise of a prosecutor’s discretion.  He points out that Holder’s position may play a pivotal role in the nation’s ability to address the defining civil rights challenges of our time, including state laws that ban gay marriages. Some critics, including a number of Republican state attorneys general, have criticized Holder’s position as an impermissible exercise of “prosecutorial nullification,” and violative of their duty to enforce all laws, including those that may be unconstitutional. However, Professor Gershman explains that Holder’s directive is a well-settled exercise of prosecutorial authority, as “discretion is at the heart of the prosecutor’s function, it is virtually unlimited, and virtually unreviewable.”

Professor Gershman further explains that “[p]rosectors 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.” He points out that “defending [] [unjust] laws, as the Republican attorneys general claim they must do, may be a principled exercise of discretion, but a foolish and irrational one.”  

Related Reading

• Bennett L. Gershman, Refusing to Defend Unjust Laws: Prosecutorial Discretion or Prosecutorial Nullification?, Huffington Post (February 27, 2014).