Gavin R. Putland,  BE PhD

Wednesday, August 17, 2016 (Comment)

Jury nullification: Your last defence against bad ‘laws’

In a democracy, an extraordinary decision often requires an extraordinary mandate. For example, changing the constitution, although a legislative act, usually takes more than an ordinary vote of the legislature and may involve parties who are not normally part of the legislature. In a democracy, a law creating criminal liability, with its attendant loss of democratic rights, is certainly extraordinary. It is therefore only reasonable that such a law, in order to be binding in a particular case, should be approved not only by the ordinary legislature and executive but also by twelve good citizens and true, acting as a final “house of review”, albeit one whose election is not influenced by the campaigning power of moneyed interests.

Thus the power of jury nullification — the power of the jury, where justice demands it, to acquit the accused in spite of the ‘law’ and the facts — is impeccably democratic.

Indeed, if juries did not have this power, what use would they be? If you were a victim of crime and knew that the accused was guilty, you would want the case to be decided by appropriately trained professionals who can reliably process evidence — not by a bunch of people randomly hauled off the street, who are too easily swayed by eloquent lawyers, and who are prevented from hearing damning evidence because it might be too “prejudicial”. Equally well, if you were an innocent defendant, you would want your fate decided by appropriately trained professionals whose reasoning must stand up on appeal — not by a bunch of people randomly hauled off the street, who are too easily bedazzled by logically and statistically dubious “evidence”, and whose prejudices are hidden because no reasons are given for their verdict.

But if you were prosecuted for doing something that shouldn't be a crime, or for which the prescribed penalty (in your case or in general) would be manifestly excessive, you would want your fate decided by a bunch of people like yourself, who don't have to explain that they are acquitting you because they perceive that the ‘law’ is unjust.

If a jury exercising the power of nullification acts as a final “house of review”, does it act in a legislative role? Yes — albeit a limited one, in that the decision applies only to one case. Does that violate the separation of powers? No, because the legislative role is exercised instead of, not in addition to, the usual judicial role. And even if jury nullification did technically violate the separation of powers, it would not violate the reasons for it, which seek to restrain executive and legislative power.

Anyone who wants to argue that jury nullification violates the rule of law must first consider what it takes to make a valid law creating criminal liability (see above). Be that as it may, if the rule of law is not breached when the executive branch exercises a “discretion” not to prosecute a technically guilty person, or pardons a technically guilty convict on the ground that such a “discretion” should have been exercised, neither is it breached if the jury acquits on the ground that such a “discretion” should have been exercised. (And if, in so doing, the jury acts in an executive role, then again this role is exercised instead of, not in addition to, the judicial role.)

One thing that does threaten the rule of law is the modern tsunami of legislation and regulation, which has created so many obscure crimes that every citizen is almost guaranteed to be a criminal without knowing it. According to retired law professor John Baker, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.” Harvey A. Silverglate has estimated that the average American is liable to be prosecuted for three felonies a day. Tim Wu tells it this way:

At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity — say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order... The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The result, however, was inevitable: “prison time.”

In those circumstances, whether you do prison time is not a matter of law and fact, but a matter for the arbitrary will of prosecutors — unless, of course, juries are willing to step in and nullify the abused ‘laws’. In so doing, juries are not attacking the rule of law, but defending it.

Opponents of jury nullification love to cite cases in which racist jurors acquitted majority-race defendants whom they knew to be guilty of murdering minority-race victims. But this was not nullification. It was simply corruption. The offending jurors did this not because they thought it was right, but in spite of knowing it was wrong, and regardless of any philosophical arguments that they had or had not heard in support of jury nullification. Those who listen to the arguments, or to their consciences, will understand that the purpose of jury nullification is to protect citizens from oppression by the state, not to expose them to oppression by other citizens.

The jury, with its power of nullification, is your last line of defence against legislative overreach. That is the main reason why the law, in its wisdom, grants you the right to be judged by your peers.

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