Posted: 9/7/2013 Updated: 12/16/2015, 8/10/2015, 5/10/2015, 11/1/2013
Updated On 12/16/2015
Just read this recommendable article. It describes that during the Prohibition years in America quite often juries would resort to nullification of defendants, because they did not really break any law or injured any person except the himself/herself when they produced, sold or consumed alcohol.
Updated As Of 8/10/2015
The author mentions that he previously opposed jury nullification because “Moreover, it seems unfair if Defendant A gets convicted while Defendant B is acquitted after committing exactly the same offense, merely because B was lucky enough to get a jury that disapproves of the underlying law.” I do not buy into this argument, because if jury nullification had been widely accepted then Defendant A had a similar chance too that the jury would possibly have acquitted the defendant along similar arguments.
The author argues for some kind of countervailing power of jury nullification as opposed to so called prosecutorial discretion, which in some cases means a criminal under similar circumstances is not prosecuted because of e.g. political expediency of a prosecutor.
The author’s most convincing argument against jury nullification: “Most notoriously, all-white juries in the Jim Crow-era South often acquitted blatantly guilty white defendants who had committed racially motivated crimes against blacks.” However, when this happened there was probably something wrong with the jury selection, because an all-white jury was perhaps not a jury of peers. Thus, any acquittal could have been challenged on grounds of jury selection procedures.
Updated 5/10/2015
“It allows jurors to act essentially as an ad hoc committee, charged with conscientiously reviewing the validity of a law rather than merely applying it thoughtlessly and mechanically, as instructed. It thus offers the ordinary citizen an opportunity for genuine engagement, for critical thinking and sincerely voting on values at a moment when it can really make a difference.”
“As Henry David Thoreau posed the question in Civil Disobedience, “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?””
The above article also quotes from Lysander Spooner’s essay titled “An Essay on the Trial by Jury”, but the quote is abridged, so here is the entire quote from Spooner’s essay:
“For more than six hundred years --- that is, since Magna Carta, in 1215 --- there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty” --- a barrier against the tyranny and oppression of the government --- they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.”
Update 11/1/2013
Today (11/1/2013), I learnt about following two related items released by the Cato Institute here and here.
Cato also published a book by Clay Conrad on this subject (see latter here).
Trigger
I have come across the subject of jury nullification not very long ago. Today (9/7/2013), I wrote a blog post about state nullification of federal laws, which reminded me of this subject again.
A Bit Of History
There are notable cases in history where a jury nullification set milestones in the name of justice and of Solomonic wisdom. See e.g. here.
Did you know that e.g. William Penn (of Pennsylvania) was in 1670 acquitted by a British jury despite the judge ordering the jury to go back for deliberations and demanding a guilty verdict? The jury found Mr. Penn guilty of illegally preaching, but not of the charge of disturbing the peace. After the verdict, the jury was severely punished.
From Wikipedia (emphasis added): “In the United States, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. Later, during Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of the time.”
For some reason, Wikipedia also states “Post Civil War / White defendants accused of crimes against blacks and other minorities were often acquitted by all-white juries, especially in the South, even in the face of irrefutable evidence.” I do not think this had anything to do with jury nullification but more with jury or venue selection.
Since 1895 jury nullification has been successively and successfully prohibited by the courts in the US by a number of courts on various levels including the U.S. Supreme Court. Further, as officers of the court, attorneys have sworn an oath to uphold the law, and are ethically prohibited from directly advocating for jury nullification.
Antidote To Overcriminalization
For a background on overcriminalization see e.g. here, here.
I believe this could be a good countermeasure to the ongoing overcriminalization in the USA. Too many legislators on the federal and state level are constantly busying themselves in passing laws that allow for more criminal prosecution of acts that probably most common people would hardly regard as rising to the level of criminal offenses. I suspect some of this legislation is driven by extreme activists (e.g. environmental) that have a disproportionate influence on lawmakers.
Legitimacy Of A Law
Yes, we all live under the rule of law, but not every law is legitimate or just because it was enacted by a majority of legislators. Unfortunately, legislators and the courts of justice are slow and often unwilling to repeal or nullify illegitimate or unjust laws. I have previously written a blog post about the abuse of the rule of law here.
Above the man made law is our ultimate responsibility and accountability to a higher law, perhaps a god given law, or natural law. As one example, I would refer here to the universally accepted Golden Rule.
I would argue, e.g. the farther a man made law deviates from the Ten Commandments is suspect and needs to be critically reviewed.
Consent Of The Governed
Every law and taxation requires the consent of the governed. Every juror is one of the governed in a very particular situation having to apply a man made law to find the accused guilty or not based on the evidence and facts of the case. I strongly believe that every juror also has the duty to reflect upon the law itself.
A jury trial is the ultimate test of any man made law. Every criminal trial focuses attention to a particular law and it puts this law on trial as well.
More Checks And Balances
For the jury to have the ultimate power, to nullify or to declare inapplicable a law it deems illegitimate or unjust could be a powerful mechanism from the bottom up to correct the follies and bad judgments of our power and control hungry lawmakers.
Appealable
Probably a jury nullification should not be considered as a double jeopardy. Probably it needs to be amended by the option to appeal by the prosecution.
