I'm currently reading Jury Nullification: The Evolution of a Doctrine. It's excellent, and I highly recommend it. Professor Glen Reynolds, of Instapundit, wrote a book review. Here is its lede:
They tried to kill my brother. After beating a man whom they had picked at random and leaving him in a parking lot, my brother's attackers were fleeing the scene. They piled into a Honda Accord and started the engine. My brother, along with several of his friends, saw them and gave chase. More brave than sensible, my brother placed himself in front of the car to block their escape. "Run the motherfucker down," one of the car's occupants reportedly said. And that's what they did, though miraculously my brother escaped without serious injury.
Witnesses got the license number, and eventually the case came to trial. Though guilt was clearly established, both by eyewitness testimony and a confession, my brother's tormentors never did any jail time. They were put on the street by people who didn't think that aggravated assault and attempted murder were a reason for these young men - one of them the son of an executive at a prominent local company - to go to jail. Jury nullification? Oh, no. It was a plea bargain by prosecutors approved by a judge who tried to talk my brother out of bringing the case at all. "It's pretty hard to put people in jail in this state," a downtown criminal lawyer told me, "as long as there are no drugs involved."
I mention this bit of recent family history not because it is unusual, but because it is not. Every day, in courtrooms around the nation, cases like this end with the defendants being placed on probation, sent into diversion programs, or - perhaps most commonly - not prosecuted at all. At every stage up to the trial, state actors have discretion to drop prosecution, reduce the charges, or approve probation or diversion. That discretion is almost entirely unreviewable. It is also almost entirely without remark or inquiry.
Had my brother's case made it to a jury, a conviction would have been likely. The prosecutor and judge, however, apparently felt that justice would not be served by sending the son of a local business leader - even one with prior offenses on his record - off to jail. Yet strangely enough, the notion that a jury might have discretion to make the same kind of judgment appears shocking, even un-American, to many. Jurors are unaccountable, after all (though prosecutors and judges are not especially accountable either, and are also shielded by absolute immunity).
Historically, this trust of prosecutors and judges over jurors is a relatively recent innovation, and it may not be entirely merited. Despite all the famous cases of alleged juror nullification, it is "prosecutorial nullification" - more commonly known as "prosecutorial discretion" - that plays the greatest part in keeping malefactors out of jail. Given that both kinds of nullification exist, which is more likely to constitute an abuse of discretion, or to take place in opposition to the values of the community? As Clay S. Conrad's book makes clear, the answer is not as easy as most modern discussion would have it.