Jay Michaelson at the Daily Beast questions why we’re all so focused on the wrongs committed by police while ignoring prosecutors gone wild.

Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.

Of course, it’s not as if prosecutorial misconduct hasn’t be the subject of a post or two here, or maybe a few thousand, discussing deep systemic problems, conflicted incentives and political resistance to change, but we’re just lawyers. What would we know about stuff like prosecutorial misconduct when it can be addressed by dilettantes with only the most superficial grasp of the mechanics of the legal system?

At Volokh Conspiracy, a wild, mud-slinging brawl broke out between Ilya Somin and Orin Kerr, stemming from Instapundit Glenn Reynolds’ USA Today op-ed in favor of jury nullification rather than relying on the kindness of prosecutors.

If you are a member of a jury in a criminal case, even if you think the defendant is guilty of the crimes charged, you are entirely free to vote for acquittal if you think that the prosecution is malicious or unfair, or that a conviction in that case would be unjust, or that the law itself is unconstitutional or simply wrong. And if you do so, there’s nothing anyone can do about it. Judges and prosecutors know this. But they don’t want jurors to know it.

I know, it sounds friggin’ wonderful when you put it that way. Much like your typical plea allocution, where the judge recites the litany of constitutional rights to which every defendant is entitled, making the mountain the prosecution must climb to obtain a conviction sound so tall that no one could ever surmount it. And yet they do. All the time. How is that even possible?

As with almost every fairy tale, it’s all in how the story is told. This is the unspoken jury nullification discussion in the back room, when deliberations are untethered from the facts and law:

Juror 3: Wow, this crime is just horrible, awful. Juror 7: Horrible. And the defendant is just as awful. A terrible human being. Can you imagine him knocking on your door? [Shudder.] Juror 10: But, you know, they really don’t have the evidence to prove he did it. I mean, that hole was big enough to drive a Mack truck through. Jury Foreman: True, but do you want to see that guy on the street again? Society would be much better off with him behind bars for the rest of his life. Jury, in unison: Agreed. Guilty!

Discretion cuts both ways, an inconvenient fact that jury nullification advocates seem to forget.

Or the opposite discussion, where the jury, as conscience of the community, decides to let a guilty defendant walk free, but only because he’s white, the guy he killed was black, and they’re flaming racists. But could it happen in real life? Two words: Emmett Till. Jury nullification isn’t necessarily the panacea the fantasy suggests.

But, as Orin argues, is the prosecutor better positioned to exercise discretion than the jurors?

We might disagree with a prosecutor’s decision, of course. But the prosecutor at least has access to the information needed to make the decision. Jurors usually don’t have that information. Jurors are not told what they would need to know to decide what is just. We keep such information away from jurors to help ensure a fair trial and preserve other values in the criminal justice system.

Jurors don’t have a defendant’s prior criminal history, or evidence that’s been suppressed, or how they fit within the ecosystem of criminality. It’s one thing to acquit a guy who sold a dime bag of weed because you’re generally against the criminalization of marijuana, but would it change your mind if you learned that he had 24 priors, including sale of heroin to minors, and still sold drugs?

Second, jury discretion is less democratically accountable than prosecutorial discretion. Criminal prosecutions are democratically accountable in two ways. First, before the crime occurs, the elected legislature must enact a law saying that, in general, the conduct should be punished. Second, after the crime occurs, elected executive officials and their employees must make a judgment that the specific conduct by the specific individual merits prosecution.

Trust your politicians, because we elected them? Trust your prosecutors because if they fail to do the public’s bidding, their patrons won’t be re-elected? That’s one of those theoretical views that only an academic can love, or say without laughing. The electoral process has proven a remarkably ineffective check on any specific issue, criminal justice included, both because the public is functionally clueless and because people vote their primary personal concern, even if the candidate sucks on 100 peripheral issues.

In other words, the likelihood of any political candidate paying at the polls for terrible prosecutorial discretion is essentially non-existent.

Raising a number of points in reply, Ilya notes:

[P]rosecutors are often rewarded based on conviction rates. That may incentivize them to pursue cases that are morally dubious, but easy to win, because there is little question that the defendant did in fact commit the offense in question. Jurors don’t suffer from this type of perverse incentive. Unchecked discretion by unrepresentative prosecutors is particularly dangerous when the scope of the criminal law is so broad that almost everyone violates it at one time or another.

This harkens back to the title concept of Harvey Silverglate’s Three Felonies a Day, and is not only a reflection of the public ignorance of law and policy that allowed so many of these problems to exist, but a tipping point in criminalization where, when a person is seated on a jury and forced to focus on what democracy hath wrought, the check on power is most needed.

But then there is the trench lawyer’s perspective, which isn’t well reflected in either Orin’s or Ilya’s argument. Prosecutors are people, and some are more worldly while others are insular, some have a working sense of mercy and proportionality, while others are just mean-spirited prigs who would hang anybody they could.

To speak of prosecutorial discretion as a solution is to engage in as much of a fantasy as those who think jury nullification is the answer. The reality in the trenches is that even if all the stars align, a fair-minded prosecutor, a neutral judge, a competent defense lawyer, honest cops, sound evidence and a neutral jury, chances are still a shot in the dark as to whether the outcome will be (and I hesitate to use this meaningless word) just.

Chances are the defendant will still be convicted no matter who is given the discretion to put a stop to a prosecution. We have a system designed to convict people, not to test whether they’re guilty, and most people are good with that. As Michaelson noted, “criminals,” even the innocent ones, don’t play well at the polls. They don’t play well in the courtroom either.