Should Jurors Take the Law into Their Own Hands?

jury-nullification

Jury nullification occurs when the jury in a criminal case reaches a verdict that defies the evidence.  Often this is because of a fundamental disagreement with the law in the case at hand.  But the jury possesses far more power in the American legal system than people might think.

The jury has the right to render a “general verdict” in criminal trials, and the criminal courts lack the ability to direct a verdict despite the weight of the evidence.  The Fifth Amendment’s double jeopardy clause prohibits the prosecution from retrying or even appealing an acquittal.  Finally, the jurors are immune from punishment for the verdict they render.

This week Georgetown Law Professor Paul Butler, a former trial attorney with the Justice Department, wrote an essay for the provocative Washington Post “In Theory” column.

He starts with an interesting account as a prosecutor in DC in the 1990s.

He writes, “I learned about jury nullification while serving as a prosecutor in the District in the 1990s. As a rookie, I was warned that in nonviolent drug cases, it would be tough to get a conviction, no matter how strong my evidence was. The experienced prosecutors explained that the African American jurors “didn’t want to send another black man to jail.”

As I tried cases, I gained enormous respect for the seriousness with which jurors approached their work. The jurors were often elderly African Americans who had moved to D.C. to escape the Jim Crow South, and they were honored to serve on a jury because they came from places where blacks didn’t have that privilege. These jurors had no problem convicting anyone of a violent offense, if the government proved its case.

For drug crimes, however, it was a different story. Then, as now, if you go to D.C. criminal court, you would think that white people do not commit crimes. There are virtually no white defendants. The jurors must have decided that they didn’t leave the old Jim Crow to help implement the new Jim Crow. So they frequently voted ‘not guilty’ in nonviolent drug cases, no matter how compelling the evidence.”

He even noted that he once chased down a juror, after losing a drug case “in which the defendant practically admitted he did it. Only one woman would talk to me.”  “We all knew he was guilty,” she said. “But he was so young.”

Professor Butler notes that these jurors are situated “in a long line of jurors who refused to go along with an oppressive criminal-justice system: jurors who refused to convict American patriots of sedition against the British crown; jurors who acquitted people guilty of violating the Fugitive Slave Act; and jurors who would not punish gay people for ‘sodomy’ for having consensual sex.”

Professor Butler published a Yale article where he “endorsed the D.C. jurors’ protest against selective prosecution of blacks. Yes, the jurors had taken an oath to follow the law, but they were following the advice of Alexander Hamilton, who said jurors should acquit even against the instructions of the judge, ‘if [in] exercising their judgment with discretion and honesty, they have a clear conviction that the charge of the court is wrong.’”

He noted that Mike Wallace on 60 Minutes warned that the professor’s proposal “that black jurors should vote not guilty in nonviolent drug cases — would ‘scare’ a lot of people.”

However, “some 20 years later, the whole world knows what African Americans have been saying all along. There are two justice systems in the United States: one for privileged white people, and

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another, inferior one for everyone else.”

In 2015, 90 percent of the people punished in the DC criminal court were African American, despite the fact that blacks are less than half the population of the city.

“Nationally, most of the people locked up for drug crimes are African American, in spite of studies that demonstrate blacks don’t use or sell drugs more than any other group. We make up 13 percent of the country’s population but nearly 60 percent of the people doing time for drug offenses,” he continues.

Then there are the “endless series of videos” that “have shown how black people get policed.”

He argues, “Like a lot of African Americans, I am sick and tired of being sick and tired. I encourage any juror who thinks the police or prosecutors have crossed the line in a particular case to refuse to convict.”

Here is Professor Butler’s conclusion:

Judges frequently make rulings that mean guilty people get off. For example, when the police have collected or analyzed in violation of the defendant’s rights under the Fourth Amendment, the evidence they found is suppressed even if that means that the defendant goes free. The point of the exclusionary rule, as this principle is called, is to deter police misconduct. It lets the cops know if they don’t follow the rules, they don’t have a case. Jurors should send police and prosecutors that same message about equal justice under the law.

Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that black lives matter. If they think that the police are treating African Americans unfairly — by engaging in racial profiling or using excessive force — they don’t have to convict, even if think the defendant is guilty.

Similarly, if prosecutors are selectively going after African Americans for offenses that white people do not get prosecuted for (drug crimes, for example), then jurors should not endorse that discrimination. By voting “not guilty,” jurors let prosecutors know that “just us” justice for black people is no longer acceptable.

Professor Butler certainly makes an interesting case.  Do you agree that juries should nullify the law in the face of police misconduct?  If juries did, it would probably go a lot farther to ending the practice than anything that has been proposed now.  And if we are talking about lesser offenses, we could probably live with some petty criminals escaping punishment when the police break the law.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 thoughts on “Should Jurors Take the Law into Their Own Hands?”

  1. sisterhood

    “Do you agree that juries should nullify the law in the face of police misconduct?”

    Yes.

    P.S. In CA the statute of limitations to bring forth a police misconduct charge used to be two years. I don’t know what it is today. I believe that period of time is too short. Some people are so traumatized, until they can get good counseling, they cannot face what happened. They are too fearful of law enforcement and the entire legal injustice system.  Their healing process may take longer than two years.  I believe there should be no time limitation.

  2. Tia Will

    I will also answer your question affirmatively.

    they have a clear conviction that the charge of the court is wrong.’

    If there is a clear conviction that the charge is wrong, I believe that the the jury not only has the right, but the obligation to nullify.

  3. Anon

    IMO jury nullification took place in the OJ Simpson case.  How did that work out for everyone?  A murderer of two innocent people got off scott free…

    1. Tia Will

      Anon

      A murderer of two innocent people got off scott free…”

      Wow ! That is quite a statement from a lawyer. My understanding is that our legal system holds an accused individual innocent until proven guilty, in this case before a jury. Whether you or I believe that the jury got it right is irrelevant. It was the jury that under our legal system had the decision making ability, and until we choose to change our system, this is one of its tenets.

      The larger issue for me is one of balance. I believe that the jury system is a part of a system that is supposed to serve justice, not just the preferences of the prosecution or the judge. As such, within our current system, we need the right to nullification by jury to keep a balance of power between prosecution and defense in a system that obviously favors the prosecution by its very structure.

    2. David Greenwald Post author

      I don’t agree that Simpson was jury nullification. That assumes that they believed he was guilty, I think the Simpson case comes down to jury mistrust of the police which led them to negate evidence others would have accepted.

        1. Anon

          To add to my comment, from the article cited below:

          “Moreover, [jury nullification] has most often been viewed as a malfunction of the law, not as a principle to be embraced.
          “Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court,” said federal judge Jose Cabranes in a 1997 ruling that concluded that jurors who reject the law should not be allowed to serve.”

  4. Napoleon Pig IV

    Absolutely yes, juries should do what is right no matter what “the law” says.

    Sure, there are cases of jury nullification getting it wrong, but there are far more cases of “the law” getting it wrong.

    Even the phrase “taking the law into one’s hands” is an artifact of the powerful protecting their power against the weak who exist in far larger numbers than the few elite with power. It’s essentially a term of propaganda designed to keep the sheep passive and the pigs in control. The importance of the “rule of law” is clear, but exists independently of the fact that the powerful bend the law to their own ends.

    Many of the worst atrocities and injustices in history were “legal” within the context of “the law” of the time and place they were perpetrated against law abiding sheep.

    Great essay. Oink!

  5. mercy4all

    I agree with anon that jury nullification is a truly dangerous thing.  And in decades of criminal defense I’ve seen it happen almost exclusively by jurors who ingnore strong reasonable doubt and even outright evidence of innocence to disregard both and the judge’s instructions and convict because they didn’t like a client or were afraid (gangs, offensive tattoos, bad criminal records, whatever.)

    I dont’ however see OJ as jury nullification, though once the DA’s office for political reasons allowed the case to move to downtown LA from Bel Air (the Santa Monica court I seem to remember) the dye seemed cast.  Not because a more “diverse” jury was sworn and not because any of them knew he was guilty and acquitted anyway, (irrespective of 2 of the black jurors giving OJ the “Power to people” sign on their way out) , but because they were sympathetic to police misconduct and with no confession and suspect blood evidence (again as I remember a detective  named Van Atter? Kept a a vile of OJ’s blood in his car for days) a jury with lots of experience with police harassment and misconduct found reasonable doubt.

    Still a sympathetic jury is far from a nullification jury.  The latter frankly is intolerable, a slippery road we should never go down.  It’s why both sides in a criminal case have lots of peremptory challenges and twice as many in major cases.  When a juror starts down the nulification highway it almost always results in others going to the judge and dismissal of that juror or a hung jury.  As it should be,  part of a surprisingly fair criminal justice system that for all that is criticized does a remarkably good job at sorting out the facts, aquiting the guilty (or at least when the evidence is weak) and convicting the guilty.  So be it.

    1. Napoleon Pig IV

      mercy4all,

      Despite apparently practicing law for years, you seem to misunderstand the meaning of jury nullification. It is not about the actual guilt or non-guilt of the defendant, but rather about the fairness or morality of the “law.” A jury nullifies a stupid law; it does not ignore evidence. When the latter occurs, it is a different phenomenon than the one this editorial is about.

  6. Frankly

    “Nationally, most of the people locked up for drug crimes are African American, in spite of studies that demonstrate blacks don’t use or sell drugs more than any other group. We make up 13 percent of the country’s population but nearly 60 percent of the people doing time for drug offenses,” he continues.

    Actually no.  95% of the 60% of the federal prison population that is black is in for drug trafficing.  Blacks most certainly do sell drugs more than any other group.  Latinos are next.

    Basically this shoots a complete hole through most of this article.

    There is also an explanation about blacks being over-represented in drug use punishment.  Blacks are statistically more likely to use drugs in high crime areas where they are more likely to be caught by police.

    Lastly, it was actually Bill Clinton… elected with 95% of the black vote, that got tough on crime… primarily because the black leaders demanded it because the black neighborhoods were a mess with crime… especially violent crime.  Since then violent crime fell and the safety in the black neighborhoods improved.

    Because more of the criminals were locked up.

    Now I am one that supports de-criminalization of drug-use.  But again, it is a lie that this is the reason blacks are over-represented in drug crime and punishment.

    So I don’t have too big of a problem with jury nullification for drug use… but it is a very slippery slope for other crimes.

  7. tribeUSA

    Re: ‘However, “some 20 years later, the whole world knows what African Americans have been saying all along. There are two justice systems in the United States: one for privileged white people, and
    another, inferior one for everyone else.”’

    Baloney, the color that matters is green–if you have more green in your wallet or bank accounts, you will be able to purchase more effective representation. I don’t know if there’s any evidence that poor whites fare any better than poor hispanics, blacks, asians, etc. in the courts; and if you are rich the color green will trump any other color bias that may be present.

  8. David Greenwald Post author

    Interesting I just finished watching the OJ series on FX.  The jury – at least some of them felt like he was guilty but it wasn’t proven.  You had the glove that didn’t fit.  You had Fuhrman perjuring himself, admitting that he would set up guilty black people.  The DNA evidence and blood evidence were strong, but the analyst was incomprehensibly complex on something that should have been simple.  Too many mistakes by the prosecution.  I agree with Mercy, it was not nullification.  That would have meant people believed him guilty but the system unjust rather than believed him guilty but that the prosecution failed to prove its case beyond a reasonable doubt.

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