ORIN KERR disagrees with me on jury nullification. “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.”

Plus Ilya Somin responds to Orin Kerr. “I certainly agree that jury ignorance is a genuine problem, and have even written an entire article on the subject. It is probably true that prosecutors are more knowledgeable than jurors are, and therefore less likely to err out of ignorance. However, in a world of rampant overcriminalization, this virtue of prosecutors is counterbalanced by serious defects. Prosecutors are a self-selected group disproportionately drawn from those who believe that the current scope of criminal law is reasonable. . . . In addition, prosecutors 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.”