Jury nullification is the practice of a jury refusing to convict a defendant of violating a law the jurors view as unjust.
In law school, I was taught that the function of the jury is to determine the facts — what actually happened — thereafter applying the law to those facts in strict accordance with the judge’s instructions. Jury nullification challenges this arrangement, submitting that the jury may also examine and assess the law itself, independently deciding whether the law is just and whether they ought to give it force. Eminent legal scholar and one‐time Dean of Harvard Law School Roscoe Pound famously opined that “jury lawlessness is the great corrective of law in its actual administration.” In theory and in practice, jury nullification has important implications for libertarians, limiting government power as exercised through the courts and decentralizing decision‐making authority. 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. Instead of seeing the law as a specialized and abstruse field, closed off to the layperson, the ideas behind jury nullification propose that the opinions and the conscience of the individual are at least as important as either the black‐letter law or the judgments of ostensible legal experts. Jury nullification therefore represents a truly populist philosophy and tradition, shifting power back to the people. In United States history, there seems to be an inverse relationship between the power of government and the importance of the role of the jury, jurors being a “check on the excesses of democratic government” — the tyranny of the majority. 1
Libertarians accept neither the claim that an act must be right insofar as it is legal, nor the converse claim that an act must be wrong insofar as it is illegal. Though we hold a wide variety of philosophical views on morality and how human beings discover its mandates, we tend to share a rejection of the idea that laws must always be obeyed, irrespective of their ethical attributes or their practical effects. In general, libertarians would give the conscience and beliefs of each person a wide breadth, under the overarching principle that the presumption should always favor freedom of choice, each individual internalizing the costs and consequences of her actions as far as possible. Because of this stress on the cognitive and bodily autonomy of each individual, libertarians have historically embraced civil disobedience, the intentional violation of a law regarded as unjust. If laws are sometimes (indeed, very often) unjust, and individuals have it in their power to both act free from arbitrary aggression and to make judgments of conscience, then individuals may quite rightfully decide to disobey a given law. 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?” Thoreau’s answer, of course, was that everyone ought to do what her own conscience deemed right, that a wise person would neither rely on majority rule nor “leave the right to the mercy of chance.” Thomas Aquinas similarly argued that, through the application of reason, individuals could comprehend the natural law, and that manmade laws conflicting with this discoverable set of natural imperatives were of a lower moral order. Jury nullification is another embodiment of this principle of proactive individual discernment. Instead of the individual breaking the law herself, however, jury nullification entails making a judgment about the justness of a law someone else has broken. Therefore, as law professor Jeffrey B. Abramson observes, “Philosophically, jury nullification is a close cousin to the theory of civil disobedience.” And like civil disobedience, jury nullification is a potential conduit for political action, a practical way to promote political change outside of the traditional political process.
Considering the effects of criminal legal proceedings on social and political movements, sociologist Steven E. Barkan argues that judges’ failure to apprise juries of their historical prerogative to disregard the law may have seriously affected the outcomes of important political trials. 2 For example, at the trial of the Chicago Eight, a group of protestors arrested at the 1968 Democratic National Convention, Judge Julius Hoffman instructed the jurors that they must follow his directives as to the substance of the law. 3 Similarly, the trials of many Vietnam War protestors may have had very different outcomes if jurors had known that nullification was an option. Today, activist efforts to educate on jury nullification and its potency as a tool for justice have already witnessed important victories, many jurors refusing to convict for nonviolent drug offences in a way that recalls the frequent nullifications of the short‐lived alcohol prohibition era. Rather than waiting for change from politicians and prosecutors, people invested in the status quo and often campaigning with “tough on crime” rhetoric, citizens can choose to conscientiously object to the failed policies and injustices of the war on drugs. This war on the American people has given us a crisis of over‐criminalization and tainted our criminal justice institutions and officials through perverse incentives.
Exploring the incentive structures involved in the prosecution of a criminal case, E. James Cowan, a professor of economics and Associate Director of the Institute for Forensic Science Administration, applies a principal‐agent model. Cowan argues that forensic laboratories, the agents, tend to share the objectives of prosecutors, the directing principals. Financial incentives and the general identification of lab workers and scientists with prosecutors harmonize to advance the shared goal of maximizing convictions. 4 These incentive problems have yielded a structural framework that dangerously undermines the ability of juries to critically examine all evidence and make educated conclusions about the facts. Compounding the incentive defects of the criminal justice system, breaches of prosecutorial ethics have become rampant in the United States, with prosecutors regularly breaching their ethical duty to “seek justice.” 5 One recent study on prosecutorial misconduct in California, examining the years from 1997 to 2009, presents a startling picture of a systemic problem. 6 The Northern California Innocence Project found 707 instances of misconduct that was actually reported by courts, a number that the study adds “certainly understates the number of cases in which prosecutorial misconduct was found.” This is because both judges and fellow lawyers routinely insulate prosecutors from accountability for ethical violations, hoping to thereby shield their own reputations and hold convictions above doubt or reproach. Like any other licensed and self‐regulating professional cartel, attorneys look out for their own; prosecutors, in particular, are almost never disciplined by state bars. 7 Indeed, even in the 707 cases where the court itself had admitted that there was prosecutor misconduct, almost 4 out of 5 convictions were nevertheless upheld, judges holding that the ethical breaches were “harmless error” that did not sully the trial. Efforts to work out an accurate picture of prosecutorial misconduct are made even more difficult by the staggering fact that “[m]ore than 97 percent of felony criminal cases are resolved without trial, almost all through guilty pleas,” leaving no trial court transcripts or record of judicial review. As a consequence of these factors, the misconduct that the Northern California Innocence Project could definitively prove in its study was just the tip of an enormous iceberg. Judges, too, intervene to stack the deck against the accused, actively attempting to weed out and dismiss “for cause” those jurors who, for example, oppose the death penalty or might otherwise refuse to apply the law as directed. Given such corruptions and manipulations of the process, attorney and legal scholar Clay S. Conrad asks whether our court system has “actually become willing to openly and officially endorse biased juries.” Troubled by these trends and the overuse of the criminal sanction as a public policy tool, Conrad suggests that a better understanding of jury nullification should be part of the remedy. In the absence of confidence that our courts and officers of justice will properly discharge their duties, jury nullification offers a peaceful route to reaffirming fairness and justice in the trial process.
In his celebrated Essay on the Trial by Jury, the great libertarian Lysander Spooner argued that it is not only a jury’s right, but their “primary and paramount duty,” to “judge the justice of the law.” If a jury is not empowered to do that duty, then, Spooner contended, they are no longer a meaningful “barrier against the tyranny and oppression of the government,” neutered and rendered a mere rubber stamp for government injustice. In an era of seemingly omnipotent government, when courts and their officials are increasingly complicit in misconduct and miscarriages of justice, criminal defendants often don’t stand a chance. And whether those defendants are nonviolent drug offenders or whistleblowers shedding light on violative government overreach, it is important that jurors and potential jurors to know the power in their possession. Justice is not blind, and her scales are too often tipped in the government’s favor. Jury nullification, a genuinely democratic instrument for protecting the rights of the accused, can help even the balance.
1. Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Cato Institute Press 2014), p. xvii.
2. Steven E. Barkan, “Jury Nullification in Political Trials.” Social Problems, Vol. 31, No. 1, Oct. 1983.
4. E. James Cowan, “A Race to the Top: Enabling Juries to Make Informed Decisions When Confronted With Forensic Evidence,” in Experts and Epistemic Monopolies, Eds., Roger Koppl, Steven Horwitz, Laurent Dobuzinskis (Emerald Group Publishing Limited 2012), p. 154.
5. Note that a prosecutor’s ethical obligations differ greatly from those of an attorney in an ordinary case, charged simply with zealous representation of her client. A prosecutor’s job is not necessarily to obtain a conviction; she must serve justice.
6. Kathleen M. Ridolfi and Maurice Possley, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009.” Northern California Innocence Project (October 1, 2010).
7. The NCIP study reports, “Significantly, of the 4,741 public disciplinary actions reported in the California State Bar Journal from January 1997 to September 2009, only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case.”