A recent Chicago Tribune editorial targets a new fully informed jury bill introduced by the New Hampshire House of Representatives. The bill would strengthen the current state law passed in 2012 that allows lawyers “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” The editorial is noteworthy, because it deploys the most common legal establishment objections to jury nullification.
Objection #1: Jury nullification was a tool of the Jim Crow South
The jury that acquitted Till’s killers
It begins by reminding readers of one of the most horrific examples of racial injustice in the Jim Crow South.
In 1955, two white men went on trial in Mississippi for the murder of Emmett Till, a black 14-year-old from Chicago who supposedly had been too friendly to a white woman. In the Jim Crow South, there was never much chance of conviction, and they were acquitted by a jury that deliberated for barely an hour. The two men, free of the danger of prosecution, later acknowledged their guilt. That case and many like it are worth keeping in mind in any consideration of the place of jury nullification in the criminal justice system.
Let there be no mistake about it, racist juries routinely failed to deliver justice in the Jim Crow South. And jury injustice sometimes happens today when, for example, juries acquit police caught on video brutalizing defenseless citizens. So how can advocates reconcile the abuse of jury nullification with its noble history of delivering justice in the face of unjust laws?
As Paul Butler, a Georgetown University law professor and former federal prosecutor suggests, “nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.”
Moreover, according to legal scholar Clay Conrad, the jury is a convenient scapegoat for institutional injustices. After the trial is over, the jury doesn’t exist. Jurors return home and go back to work. So when police, prosecutors, judges, and even lawmakers are incompetent or malicious, they can blame the jury to divert attention from their failures.
Objection #2: Jury nullification undermines rule of law
Jury Nullification advocate Rich Paul
Under existing New Hampshire law, lawyers are allowed to tell jurors about jury nullification as part of their defense strategy. Unfortunately, some judges are undercutting the law by issuing contradictory jury instructions. For example, during the trial of Rich Paul, a Keene man convicted last year for selling marijuana, Judge John C. Kissinger told the jury that they “must follow the law as I explain it.” Paul spent one year in jail.
It’s notable that the Tribune overlooks Judge Kissinger’s subversion of the rule of law while insisting that the new bill would “undermine rule of law.” Nevertheless, those who claim that jury nullification is a violation of rule of law are wrong. “Jury nullification is a part of our law,” according to Cato Institute legal scholar Tim Lynch. “It’s part of the checks and balances in our constitutional system. Just as pardon power is used by governors and the president, juries have the power to bring back acquittals.”
Andrew Hamilton, in his famous 1735 defense of publisher John Peter Zenger who was on trial for seditious libel, implored the jury to ignore the judgement of the Crown’s hand-picked judges.
I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases.
The jury voted to acquit Zenger. This case, according to Conrad, “was the foundation of both our understanding of where a jury comes from and our understanding of freedom of the press. This is the history the founders knew. This was the background they had in mind when they wrote the 6th Amendment.”
Objection #3: The Supreme Court struck down jury nullification
The Tribune and other jury critics frequently cite the 1895 Supreme Court decision, Sparf v. U.S. The court ruled that judges were not required to tell jurors about jury nullification. The ruling didn’t say that jurors didn’t have the power to nullify. Nor did it say that judges couldn’t tell the jury about nullification; it simply said that they didn’t have to.
This decision has led to the common practice by U.S. judges of penalizing criminal defense lawyers who try to present a nullification argument in front of the jury. Consequently, jury nullification is seen as a de facto power of juries. So unless you’re a citizen of New Hampshire, most jurors cannot rely on judges to inform them of this “secret” constitutional power.
Objection #4: Jury nullification is a power not a right
The Tribune argues that “the power to nullify is not the same as the right to do so. Because of the power granted to juries and the nature of deliberations, they are free to acquit or convict for any reason they choose.”
This power vs right debate is largely academic. But for what it’s worth, the second president of the United States John Adams agreed with Hamilton [and disagreed with the Tribune] when he wrote in 1771 that “it is not only [a juror’s] right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Objection #5: Jury nullification violates the jury oath
Law professor James Duane calls this “perhaps the most threadbare judicial objection to nullification arguments. This ominous-sounding charge has no logical substance, although it naturally carries much emotional appeal.”
At the beginning of a criminal trial, jurors are typically asked to swear that they “will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God.”
Aside from being barely intelligible to most jurors, Duane notes, there’s no reason why a juror might not acquit based solely on “the evidence” if they believe the accused harmed no one or that a conviction would be unjust. As for what it means to make “a true deliverance,” nobody alive today knows for sure what that means.
Objection #6: Jury nullification can be wrongly used to convict the innocent
Attempting to equate jury nullification with unlawful behavior, the Tribune posits that “no one would argue that juries should convict an innocent defendant merely because they resent the burdensome requirements placed on prosecutors.” This confusingly-written concern for preserving defendants’ due process rights can, according to Tim Lynch, be addressed by properly-worded legislation.
“We can set [the law] in such a way where the defense will be in control. It will be up to the defense to make a jury nullification argument to the jury. Or it’s up to the defense to ask for a jury nullification instruction from the judge. It’s a tactical decision, just like whether or not the defendant will testify or not in court. It’s totally up to the defense to exercise the option or not.”
Objection #7: It’s not the jury’s role to disregard the law; work to change it instead
Good people breaking bad laws
While the law might sometimes be unfair, according to the Tribune,
The promotion of jury nullification rests on the assumption that 12 randomly chosen individuals are entitled to override the democratically expressed will of the citizenry. It’s true that there is considerable history in England and America of juries disregarding their instructions on principle. Before the Civil War, Northern juries sometimes refused to enforce the Fugitive Slave Act, preferring to forgive defendants who helped escaped slaves.
Great point, Tribune! But what would you do if you were a Northern juror in 1855 deciding the guilt or innocence of an abolitionist accused of violating the Fugitive Slave Act? More to the point, assume that the prosecution proved its case beyond a reasonable doubt. (Heck, assume that the defendant confessed in court to helping Southern slaves escape to Canada!)
The Tribune’s answer would be to convict the defendant, because “jurors who disagree with legislated prohibitions are morally entitled to work to change them. But they have no business putting their preferences above what democratic institutions have decided.” In other words, it’s more ethical to set aside your conscience to comply with an evil law (and work to change it later) than it is to nullify such a law if you have the power to do so. That’s simply ludicrous. Also, an ethical citizen can vote their conscience as a juror and work to change bad laws too.
In addition, jury nullification critics tend to overstate their case by claiming that jury nullification “overrides the democratically expressed will of the citizenry.” Jury nullification does not repeal bad laws, rather it allows juries to show mercy for defendants if they believe the law is wrong or is simply being misapplied.
As the Fugitive Slave Act, the Volstead Act, the USA PATRIOT Act, and every other evil, absurd, or hysterical legislation has proven time and again — legislators are hardly infallible. Jury nullification is perhaps the most important vote that citizens can use to alert law makers when their work is flawed. It does not “override” democracy. It is part of our democracy.
Objection #8: There’s no guarantee that jury nullification will suspend only bad laws
This objection circles back to the initial objection that juries might use nullification to ignore the law and acquit defendants accused heinous crimes.
When Paul Butler was a prosecutor in Washington, D.C., he observed that “there was rarely nullification in crimes with victims; jurors voted ‘not guilty’ in those cases because they had reasonable doubt about the government’s evidence, often because they didn’t believe the police.” This tendency among jury nullification critics to conflate reasonable doubt acquittals with nullification confuses the issue. It also sets juries against an impossible standard of perfection that we don’t expect from any other players in the criminal justice system.
Are juries perfect? Of course not. But neither are the police officers who have discretion to make arrests. And neither are the prosecutors who, according to Butler, have more power than judges, because they “have discretion over whether to charge a suspect, and for what offense.” Moreover, prosecutors “tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences.”
To the more than 3,200 U.S. prisoners serving life without parole for nonviolent offenses, the problem is certainly not that too many jurors are using their discretion to nullify bad laws and malicious prosecutions. Far from it. Fortunately, New Hampshire law might soon show the Tribune and other jury critics that they have nothing to fear by informing jurors of their right, power, and duty to nullify bad laws.
