Just say no

I defend your 1st Amendment right to speak your opinion.... but this is the stupidest, most socially irresponsible, morally and legally indefensible notion to ever grace the pages of The Economist. Subjective and selective enforcement of the law just because you don't like the law is ridiculous. By way of example, suppose a bunch of white bigots got on a jury, and decided "you know, we really hate gays, and this whole gay-rights thing is really annoying us, and this white heterosexual defendant that just dragged a gay man to death behind his pickup truck seems like an honest, god-fearing fella otherwise... lets just find him not guilty." Your theory of jury nullification would permit this sort of outcome. You should be ashamed of yourself.

@ LexHumana

We have already been through that with the civil right movement. Abuse the right to nullify and the FBI will ruin your day.

With so many nonsensical laws and such an exploitative penal system, many, many good (well, non-evil) people suffer a lot of injustice and cruelty. The right to nullify might be a good weapon in the fight against the prison industry.

@ shubrook,

I have a better idea -- how about exercising your right of franchise instead, and if enough people in our democracy agree with you, you can have the law changed. Otherwise, live with the fact that you've been outvoted and adhere to the democratic outcome, instead of practicing subversive anarchy.

Can't judges set aside a jury verdict if they believe that the jurors have not followed instructions ?

The right of franchise?

At the risk of putting words in your mouth, do you mean the right to vote and to petition law makers?

Some factions have already done a good job of limiting the right to vote. In order to petition law makers, very large sums of money and hard-to-build connections are required.

The right to nullify, like the right to bear arms (A right I am sure you are fond of) is easily abused, but it is an important safety mechanism to prevent the government from inflicting cruel and unusual punishment.

I can think of three institutional layers designed to temper government wrath:

1) Officer discretion; Officers enforce the law using their own judgement.

2) The right to nullify; A jury can vote to acquit in spite of what the lawyers say.

3) The Judge's decision on sentencing; The judge can impose harsh or moderate punishments as the situation calls for them.

How well are these three mechanisms functioning in the American justice system?

@LexHumana

You're familiar with why we have hate crime laws that put them automatically in front of federal juries. We call them "hate crime" laws because "the south is full of racist asses" laws just doesn't roll off the tongue.

Racist white people over exercising the right of nullification is actually dealt with in the penal code.

@ shubrook

Franchise = right to vote (where do you think the word "disenfranchise" comes from?)

In short, you are complaining that it is too hard to get the laws changed. Most of us would interpret this as democracy telling you that it did not agree with your agenda.

Despite this rejection, like a suitor pursuing an unwilling girlfriend, you advocate non-democratic means of achieving a end that the majority disagrees with.

There are plenty of due process opportunities to protect the unfairly accused. As you noted, there is an element of prosecutorial discretion (although that is primarily focused on allocation of resources -- with limited time, money, and personnel, a law enforcement agency needs to prioritize what crimes it will focus on). There is also the jury system (if you can convince them you really didn't do it, then your peers have the chance to set you free). There is also the judge, whose job is to ensure that both sides abide by the procedural rules and protections. There is also the right of appeal, if you believe an error was committed.

There are plenty of points in the process where the truly innocent can get free of the system. The concept of jury nullification is not to free the innocent; it is to free the guilty as an act of spite against the government -- which in a democracy is THE PEOPLE.

New Conservative wrote: Jun 24th 2011 10:31 GMT
"Racist white people over exercising the right of nullification is actually dealt with in the penal code."

Where? Please, show me where? I've been a practicing attorney for the better part of 17 years, and I can assure you that if a juror wants to vote "not guilty" just because they feel like it, or just because a fortune cookie told them to, or just because they hate the tie the prosecutor was wearing, there is no legal power on earth that can force them to vote otherwise, and no criminal power to punish them for their vote. A juror does not have to explain their vote.

You may be thinking of laws preventing someone from influencing a jury by threat or bribery or other tampering, which is different from the concept of nullification. In nullification, the individual juror decides to vote "not guilty" as an act of protest, despite evidence of guilt. If a racist survives the voir dire process and manages to get on a jury, and decides that he is not going to convict James Earl Ray just because he really hates black people, there is no way to punish that juror or force a change in the vote.

If juries have the ability to judge whether the law itself is just or unjust, why would they not have the power to convict someone of a crime even if the prosecution fails to prove beyond a reasonable doubt that the person is guilty? I would think that is a much more dangerous scenario than the ability to acquit despite adequate proof from the prosecution.

I've had a similar experience of being rarely summoned and never sat on a jury. But I'd be pretty reluctant to nullify (be nullified?) I think part of the misty, patriotic glory of serving on a jury is submission to the law and the facts and that in our country you cannot take anything away from anyone except on that basis or if the President up and says somebody is a terrorist or to put you to a fair trial would require sharing state secrets according to someone or other.

Now that I think about it, no wonder they don't need me for jury duty.

For those of you who are championing the idea of jury nullification as a good, morally appropriate tool, I give you the following real world example of jury nullification in all of its grotesque glory:

On June 12, 1963, Byron De La Beckwith, a member of the White Citizens' Council the Ku Klux Klan in Mississippi, shot and killed NAACP organizer Medgar Evers. During the course of TWO trials in 1964, juries composed solely of white men TWICE that year deadlocked on De La Beckwith's guilt. In 1994, 30 YEARS after the two previous trials had failed to reach a verdict, De La Beckwith was brought to trial based on new evidence, and De La Beckwith was finally convicted of murder on February 5, 1994.

By any measure used by rational men of good conscience, the idea of jury nullification should be viewed as anathema to the principles of democracy.

On the other hand, being on the jury for a deportation trial of someone who was chopping broccoli when they caught were would be a temptation. During jury questioning, if either attorney were up to scratch they'd bounce me.

I think we'd all agree that jury nullification is appropriate for unjust laws. E.g., a slave on trial for running away.

I think statutory rape laws are unjust insofar as they impose strict liability. So I'd advocate nullification if a 21-year old had sex with a 16-year old he met at a bar who told him she was 18.

I think drug laws are harmful but not necessarily unjust. Others can reasonably disagree.

LexH,

Correct me if I'm wrong, but jury nullification is a right that has been upheld by federal courts. According to JF's link, it has been upheld multiple times, as recently as 1972. As such, jury nullification would very much seem to be an integral part of US law.

A part of US law that you evidently don't much like, evidently.

My suggestion? You should exercise your right of franchise to get the law changed. Indeed, this would be the path you yourself advocate. So knock yourself out. Have at it.

Meanwhile, I'd note that jury nullification is a legal tool. And like all tools, it has the potential to be misused. And like all misused tools, it has the potential to damage.

But like other tools, the mere fact that its misuse can potentially cause damage is insufficient -- in itself -- to make the tool illegal. We need specific laws for that.

Jury nullification was used by northern juries to set runaway slaves free and so undermined the federal fugitive slave laws. Also bootleggers were often exonerated by sympathetic juries and so helped the country get rid of Prohibition.

My suspicion is that jury nullification would end the war on drugs a lot faster than voters electing politicians who also take money from the prison/court complex.

I've shared J.F.'s (and Doug's) experience of having been rarely called. But I did get the worst of both worlds on the one occasion that I got chosen: I was an "alternate juror" -- which meant that I got to sit thru the whole trial, but then got to sit outside the jury room while the real jurors deliberated.

What made the whole thing particularly irritating was that the jury ended up hung on one count.

It seems that the (black) undercover polcieman had made a face-to-face buy from the (black) defendant. One juror, a little old (white) lady from one of the wealthy neighborhoods, was of the unshakable conviction that "all blacks look alike". Therefore, she insisted, the police office could not positively identify the defendant as the individual from whom he made the drug buy. Which, of course, meant that there was "reasonable doubt" whether the defendant had actually been the person who made the sale. And so she told the (black) judge at the end of the trial.

I'm not sure who was more amazed. The judge, the DA, or the public defender -- all of whom said, in the discussion after the trial, that there was no way that count didn't get a guilty verdict. (I think the PD was going to recommend a guilty plea on retrial.)

Who says that someone else being a racist will always work against you?

I think nullification should be formalized. Instruct the jury that they must return a verdict of "guilty," "not guilty," or "This law blows. I can't believe you wasted my time. Whichever politicians voted to enact this law should be punished instead."

That gives me an idea. Juries see the law in action. Why not include them in the legislative process? If a majority of cases involving a particular law end in nullification, the law gets overturned.

My guess is that jury nullification has been used more far more to return "not guilty" for those accused of violating idiotic laws than it has been used to absolve members of the majority who have abused the minority. Prosecutorial discretion was far more likely to let a lyncher go free than jury nullification.

@Lex Humana

My understanding of hate crime laws, (and I have no legal training so correct me on this) was that they started in reaction to cases like the one you just cited. Where southern white juries were eating popcorn during the trials of KKK members and southern judges were letting people off with slap on the wrist.

So in reaction, certain kind of crimes became "hate crimes." Federal grand juries made it so southerners couldn't let people off. Minimum sentencing made it so southern judges couldn't send lynch mob leaders back with 20 hours of community service.

Nowhere in the law does it say, "this is to counteract racist juries and judges abusing their legal privileges" but most of the provisions seem designed to deal with the problem of racism in the local judiciary and populace.

Maybe I can put it this way:

A determined judge can find lots of technicalities that will allow him to let the accused go free, or at least to get another roll of the dice.

A prosecutor can decline to prosecute.

The Executive can pardon.

The Executive's agents (the police) can decline to even accuse the accused.

The jury can nullify.

Lots of checks. Seems good to me, though still not enough to keep Americans from enforcing their prohibiting on the smoking of certain plants, and the expenditure of tax dollars to incarcerate those who smoke those plants.