Feb 21, 2010

jury nullification and "parameters of acceptable deviance"

Regarding the jury nullification resolution, the affirmative has to show why the practice is not only a check on government power, but a just check. The intersection of morality and legality becomes quite important for both sides.

In "Law and the Parameters of Acceptable Deviance," found in the Fall 2006 edition of the Journal of Criminal Law and Criminology, Mark Edwards argues that jury nullification shows society's "parameters of acceptable deviance," or PADs. The traditional conception of nullification:
Juries confronted with a defendant charged with conduct that is formally illegal but within PADs may nullify the legally appropriate verdict in favor of the normatively appropriate one. Nullification inspired by acceptable deviance results, in criminal trials, in acquittal despite the jurors' belief beyond a reasonable doubt that the defendant is guilty of the crime. In the civil context, it results in a finding of no liability even though the jurors believe that a preponderance of the evidence demonstrates that the defendant is liable in tort.
(It should be noted that in civil trials, nullifying juries can have their verdicts overturned; in criminal trials, however, an acquittal is final, thanks to laws preventing "double jeopardy.")

Edwards, like most other scholars of nullification, recaps the practice's historically high regard.
[J]ury nullification is commonly credited with sparing some violators of the Fugitive Slave Act, Prohibition, and draft laws during the Vietnam War. In other words, in some times and places, aiding escaped slaves, manufacturing alcohol, and resisting the draft were within PADs though formally illegal. In each case, prosecutors and courts could not or would not accommodate PADs. Negotiation-through-practice had failed to produce a parameter of deviance acceptable to both regulators and the regulated.
Essentially, jurors who nullify value their community's moral standards above its legal standards--even when facing personal risk for doing so.
The strength of their fidelity to normatively acceptable standards is revealed by their willingness to enforce them despite personal risk. Although at common law jurors have been immune from prosecution for voting their consciences, they have sometimes been prosecuted after nullification for violating their jurors' oaths by refusing to adhere to the law.
What kind of laws provoke nullifying acquittals?
Today, nullification resulting in acquittal is thought to occur most commonly in "three-strikes" cases and drug cases. Hannaford-Agor and Hans make a distinction between jurors' concerns about the fairness of the law itself, on the one hand, and the fairness of the outcome of a guilty verdict for the defendant, on the other. This distinction seems particularly important in "three-strikes" cases, which can impose enormous penalties for relatively minor offenses, and in those drug cases where small amounts of drugs can result in long sentences. In such cases, the jury may find the defendant's conduct outside of PADs, but may also find the punishment that will be imposed normatively unacceptable. If the legal penalty is less acceptable than the illegal conduct, juries may vote to acquit despite believing the defendant guilty.
"Mandatory minimums," "zero tolerance" policies, "three-strikes" schemes, and the like all take the context out of account, turning justice into a matter of mere calculation. As moral norms are intuitive, sometimes difficult to warrant or rationalize, no wonder juries might find the law too constricting.

Now we come to the core argument. Proponents of nullification either minimize or exclude examples of nullifications-gone-wrong.
Some scholars argue that unjust acquittals should not be considered acts of nullification. But nullification, on its own terms, is neither just nor unjust. Whether the result is just or unjust, nullification is the product of the same phenomena: juries preferring PADs over law. So, normatively acceptable deviance may include unlawful acts that are also unjust. For example, in some times and places, juries might acquit white supremacist defendants who, beyond a reasonable doubt, had killed or assaulted African-American civil rights workers. Historically, juries may also have nullified the law by acquitting murderous cuckolded husbands, rapists "enticed" by their victims, violent nationalists, and others whose conduct was formally illegal but, by the normative sensibilities of their time and place, within PADs.
Edwards goes a step further than most, however. Rather than focusing solely on nullification-as-acquittal, he looks at the opposite side of the coin.
In addition to just and unjust acquittals, jury nullification may-and perhaps most commonly does-take the form of unjust convictions. In other words, juries may convict a defendant even if they are not convinced of guilt beyond a reasonable doubt, if some other characteristic of the defendant or his conduct is considered unacceptably deviant. Juries may be likely to convict a defendant that they find unacceptably deviant, as opposed to a defendant with whom the jury shares common normative sensibilities, even if the evidence of the particular crime with which the defendant is charged is the same. For example, jurors may be inclined to convict a defendant covered in gang-insignia tattoos, even if the evidence that he committed the crime with which he was charged is not strong. Similarly, juries may be inclined to sanction members of formally legal but normatively unacceptably deviant-religions, or professions, or political organizations. The normatively unacceptable behavior is not illegal, which makes formal enforcement against it impossible. But because the behavior is normatively unacceptable, the community may welcome the opportunity to impose sanctions that formal institutions of enforcement cannot.

Few scholars have considered unjust convictions instances of jury nullification, but they are logically identical to jury nullifications resulting in acquittal: they are the product of jurors preferencing PADs over law. Just or unjust, conviction or acquittal, the phenomenon is the same. Moreover, by excluding cases that result in convictions, scholars ignore the phenomenon of unacceptable compliance and miss what is, quite possibly, the majority of jury nullifications.
Here's where I think Edwards' argument is weakest: even if "unacceptable compliance" and "acceptable deviance" are logically equivalent, our justice system, as mentioned above, has an asymmetry between conviction and acquittal. Convictions can be appealed and overturned, so excessively-punitive juries are less of a theoretical risk to justice.

Overall, Edwards' article is worth reading not only for the sake of his claims--especially as they apply to the Negative side of the resolution--but for its extensive footnotes.


Ayn Rand said...

Good shit. Thanks.

Anonymous said...

what are PADs?

Jim Anderson said...

A "parameter of acceptable deviance" is society's wiggle room for certain kinds of illegal actions--"deviance" in context means "criminal behavior." The point is that society doesn't frown on all offenses, especially those it perceives as slight.

For instance, even though going 62 in a 60 mph zone is technically illegal, "everybody does it," and people who are ticketed for going 62 are usually quite incensed.

Brian Hettinger said...

I disagree with that last bit of your post. It's true, there are asymmetries between convictions and acquittals, but not such that excessively punitive juries are less of a risk to justice. I'm sure you've heard the old adage "rather let 10 guilty men go free than punish one innocent man." It's trite and overused (yet still often forgotten by policymakers, go figure), but it is one of the principles our justice system is founded on. Hence the presumption of innocence and high standard of proof for criminal cases. Neg would be hard-pressed to argue that standing alone (not considering remedies yet), a wrongful conviction is less unjust than a wrongful acquittal.

Obviously though, the remedies change the formula. You mention appeals, but I think an Aff could make a good argument that appeals are an insufficient remedial measure. I'm afraid I don't have any academic evidence to back me up here, but based on my experience and what my law professors have told me, I've found that it's surprisingly hard to convince an Appellate Court to overturn a jury verdict solely on the basis of insufficient evidence. Judges prefer to let jury verdicts stand when possible. Partly to preserve the power of the jury in our system, and partly because they're often elected officials and know the next day's headline will be "JUDGE LETS MURDERER GO FREE." So even with the remedies, overly punitive juries pose more of a threat to justice as understood by our system. Again, no academic sources to back this up, so weigh it as you will. (Just for background: I'm an ex-LDer, current junior in college, interned at a DA's office for a while)

This probably wouldn't even come up in a debate, but that last claim of yours intrigued me. :-)

Jim Anderson said...

Brian, thanks for dropping by and offering excellent points. They show quite definitively that Edwards' "logical equivalence argument" is weak, even if for different reasons.

I think we might even strengthen the "remedies argument" with a little dubious math.

1. The procedural safeguards, presumption of innocence, and lack of appeal success (for reasons of insufficient evidence) make false convictions rare.

2. False acquittals are also rare, because, among other things, juries aren't aware of nullifying powers, or are instructed not to nullify.

3. Nevertheless, let's presume that false acquittals are five times as prevalent as false convictions.

4. However, let's also say that the moral horror of a false conviction is 100, and the moral horror of a false acquittal is 10. (The saying, trite as it is, made math.)

5. Thus, even if the remedy reduces the number of false convictions by a significant amount--making false acquittals 8x as prevalent--the fact that one false conviction causes 100 units of moral horror still outweighs the equivalent 80 units of moral horror caused by false acquittals in a given timeframe.

It should be pointed out, again, that this math is sheer speculation for the sake of argument. Employ it at your own risk.

Anonymous said...

Hi Jim,

Thanks for the helpful posts. One question: do you think Edwards' broad definition of jury nullification--that is, including wrongful convictions--is accurate , and, could it stand in a round? Other sources I've read have presented a narrower definition--applying only to acquittals.

Is there an authoritative definition you would recommend? From Black's Law Dictionary, perhaps?

Jim Anderson said...

Anonymous, great question.

Edwards' definition is logically defensible, although it runs up against the common perception that nullification is strictly about acquittals. Indeed, the word "nullification" itself seems to suppose that the law or the charge is being nullified, a negation rather than a conviction.

I don't have a copy of Black's on hand. A definition that works with Edwards' is found in West's Encyclopedia of American Law, 2nd edition: "Jury nullification occurs when a jury substitutes its own interpretation of the law and/or disregards the law entirely in reaching a verdict."

Regardless of the definition, you could argue that widespread nullification, by devaluing the rule of law, would likely lead to a society in which justice is a matter of individual whims rather than principles.

Anonymous said...

can you please summarize this post in simpler terms?