Mar 5, 2010

the injustice of jury nullification

Is the principle of jury nullification a just check on government power? In an article titled "License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking," found in the June 1997 edition of the Yale Law Journal, Richard St. John answers with an emphatic "no." He situates his analysis in the context of attempts by the FIJA (and similar groups) to make nullification a legally protected right by amending state constitutions. (As it stands, in most jurisdictions, juror instructions make it clear that the jury is to merely sift the facts and apply the law, not judge the merits of the law.)

While making the case against statutory reform, St. John offers several reasons why nullification is unjust. The first: it is patently undemocratic.
Proponents of jury nullification have convincingly argued that nullifying juries make law. Although they would conclude from this that the jury might be understood as a lawmaking body parallel--or even superior--to the legislature,I will argue that this insight demonstrates the crucial and fatal flaw in the case for enactment of the jury nullification power. When legislatures delegate to juries the right to make law, the law becomes not more but less democratically legitimate.
Why is this?
[J]uries can neither represent nor embody the community or its will. Not only do juries fail to reflect an adequate demographic sample of the community, but their voting rules make them minoritarian rather than majoritarian bodies. It is impossible to reform their minoritarian nature without undermining what little confidence we do have in their verdicts' representativeness.
The paradox of supermajorities in all forms, of course, is the same: they tip the scales toward dissenters. St. John also notes that the "minorities" in the jury room are not even necessarily minorities in the wider community, which doubly means that the the mistrial (or, possibly, reduced charge) that results from a hung jury will not reflect the community's wishes.

Of course, this argument doesn't apply to someone who justifies jury nullification on other grounds--or someone who limits jury nullification in principle to a unanimous acquittal.

What, then of the argument that "jury mercy" is a way of reducing government power?
Central to the theory of the "jury veto" is an understanding of nullification as having the potential only to aid the criminal defendant. Although this claim is often made in the abstract, it is also made by those who would seek an open, legislatively enacted form of jury nullification. In order to protect individual liberties, this argument runs, the entire criminal justice system is stacked in favor of the defendant; if the jury, or any other coordinate actor in the process, refuses to convict the defendant, she will be set free. According to one proponent of this view, the jury's exercise of its "power to acquit, notwithstanding overwhelming evidence of guilt... is simply an act of mercy to a particular defendant in a specific case." This definition of nullification as "jury mercy" is not uncommon in the literature. However, the concept is gravely mistaken on three levels. First, on an empirical level, nullifying juries can exercise vengeance as well as mercy; in nearly all recent proposals for nullification, little restraint would be placed on the jury's ability to penalize defendants. Second, on a theoretical level, our criminal justice system serves important ends that would be neglected were guilty defendants to be freed by jury "veto."... Finally, even though we ought to be concerned about the discretion other actors can exercise, additional jury discretion is a dangerous and unsatisfying remedy.
The prohibition of "double jeopardy," the fact that jury deliberations are private, and the fact that jurors cannot be held liable for their verdict, means that juries can act with little accountability.


James Hanley said...

"[J]uries can neither represent nor embody the community"

Uhmm, they don't represent the community? That's pretty directly contrary to what I was told each time I was called for jury duty! I'm not quite sure what to make of someone who proceeds from a premise that contradicts the premise upon which juries are constructed.

And those who oppose jury nullification seem to me to not recognize the history of the development of juries. Originally they were told what verdict to return. Only through persistent refusal to obey, a de facto form of nullification, did the modern concept of the jury as having ultimate power of judgment come into being. I would argue that nullification is inextricably a part of the whole history of juries.

Jim Anderson said...

Among the anti-nullifiers, one can detect a certain anti-populist sentiment that, as William Dwyer argues, would place jury trials in jeopardy.

Regarding the history of juries, I got into a fairly passionate argument this past weekend with someone who framed the debate solely in terms of "equal protection of the law." The potential for, say, racist-based nullification seemed to outweigh any vision of the jury as a check on tyranny.

James Hanley said...

"The potential for, say, racist-based nullification seemed to outweigh any vision of the jury as a check on tyranny."

There is that, for sure. Of course any popular check on tyranny requires that the public itself not be tyrannically inclined. If they are, I'm not sure any institutions, even constitutional ones, but especially popular ones, are going to do much good.

Jim Anderson said...

The difference between this and other institutions: the jury answers to no one, at least when it comes to an acquittal. It's the check-without-a-check.

I'd argue for nullification from a slightly different starting point: if civil disobedience is justified, whether on social contract grounds or by appeals to "higher law," nullification is similarly justified. (Civil disobedience has similar risks of being used "poorly," yet intuitively people think of it in positive terms.)

Anonymous said...

In response to James who said: I would argue that nullification is inextricably a part of the whole history of juries.

Yeah. Well just because it's part of the history of juries doesn't mean it has a legitimate place today.I think in the earlier part of our history, it had more relevance since democracy and our judicial system were in early development. I would guess (although I'm not sure on this one) that there was a different set of reasons which necessitated the need for nullifications. I think it's probably less so today.

emeraldcat said...

With what you said about a "check without a check", would you say that this violates the separation of powers/idea of democracy, giving these people power over the laws that they're not supposed to/not licensed to have? How would you refute?

Jim Anderson said...

To say jurors are entirely without check is not the last word. If they let a truly dangerous or wicked criminal go free, they have to live not only with their consciences, but in their community--knowing that a criminal is loose, and that their friends and neighbors might blame them for the miscarriage of justice.

Anonymous said...

Hi Jim,

Richard St. John states: “Proponents of jury nullification have convincingly argued that nullifying juries make law.” He agrees with these proponents, then proceeds to argue why it is unjust; mainly that it is an undemocratic way to make law. But, juries do not make law. This is a strawman argument.

The best a jury can do is to refuse to convict a defendant for transgressing a law. When this happens often enough, with enough juries, the law is rejected by the people. Thus, a given jury can only acquit a defendant, many juries together can only reject a law; neither can “make law” from the jury box. Strawman.

It generally takes many juries refusing to convict before a law is nullified. The aggregated composition of all these juries will “reflect an adequate demographic sample of the community,” provided the jurors are selected at random from the community.

St. John also argues that the jury has minoritarian voting rules which undermine democratic rule. The implication is that democratic rule is our highest standard. But democratic rule is, as Ben Franklin said, “two wolves and a sheep voting on what to have for lunch.” Minoritarian voting rules protect the sheep from the wolves when the other checks on government fail. That jury nullification is patently undemocratic is a very good thing for us sheep.

Jim Anderson said...


Good points all. It's been a while since I read St. John's article; I wonder how fair he is to "proponents of jury nullification [who] have convincingly argued that nullifying juries make law." Unmaking law, even in the piecemeal fashion you describe, seems very different, both in practice and in principle, from making law.