Jury Nullification: Right, Remedy, or Danger?
MAY 25, 2011 by WENDY MCELROY
Last December a “mutiny” occurred in a Montana courtroom. At least that’s what a stunned county deputy attorney called it. One of 27 members of a jury pool spoke up to ask why taxpayer money was being wasted to prosecute a man accused of possessing 1/16th of an ounce of marijuana. When polled, a large majority of the potential jurors indicated their reluctance to convict on such a minor possession.
The judge called a recess and the prosecutor worked out a plea deal, which read, “Public opinion, as revealed by the reaction of a substantial portion of the members of the jury . . . is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained. . . .”
Technically jury nullification did not occur because no jury had been seated. Nullification occurs when a jury in a criminal case either acquits or refuses to convict a defendant despite the letter of the law or the weight of evidence. In effect the jury passes judgment on the justice of the law and refuses to facilitate what it deems to be unjust.
Nullification is often held up as a populist defense against oppressive or corrupt law, but many questions surround the legal procedure.
Natural Right, Necessary Legal Procedure?
The most basic question: Is jury nullification—or, more broadly, trial by jury—a natural right or merely a legal procedure to be judged on its utility in preserving justice? If trial by jury is a natural right, akin to freedom of speech, then no other consideration should interfere with it. If it is a strategy, then other considerations become powerful.
Trial by jury has acquired the air of a natural right for several reasons.
The proceeding has been enshrined in some of Western civilization’s most venerated statements of individual rights. In Trial by Jury, the nineteenth-century American legal scholar Lysander Spooner translated Article 39 of Magna Carta (1215) as protecting all free men from the abridgment of liberty except “by the lawful judgment of his peers, and or by the law of the land.”
Among the “repeated injuries and usurpations” of King George listed in the American Declaration of Independence was “depriving us [colonials] . . . of the benefits of Trial by Jury.” The Sixth Amendment to the U.S. Constitution opens, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . . ”
In practice, trial by jury has sometimes served as a clear front-line defense against oppressive laws. Jury nullification was explicitly embedded into British common law in 1670, when an English jury refused to convict William Penn for preaching Quakerism; the jurors were imprisoned. In ruling on their imprisonment the English high court stated that juries must be able to reach their own decisions without fear of punishment. In 1735 jury nullification was affirmed in colonial America when jurors refused to convict publisher John Peter Zenger for printing criticisms of the governor of New York.
Moreover, prominent nineteenth-century libertarians viewed trial by jury as an indispensable weapon against injustice. The publisher Benjamin Tucker declared, “The truth is that jury service is of much higher importance than the right of suffrage.”
But others argued that trial by jury was neither a right nor a trustworthy service to liberty.
Certainly it is difficult to view the act of passing legally binding judgment on others or demanding others to pass such judgment on you as a direct right based on self-ownership. For one thing, if the procedure is a right, then others have a duty to provide it for you; in other words it would be an entitlement or positive right, not a natural or negative one. Instead advocates like Spooner and Tucker considered trial by jury to be a delegated right. Since an individual can properly weigh evidence and facts for himself—that is, can try his own case—he could properly delegate that right to others who were willing to assume it.
But the delegation of rights could not be presumed. Spooner wrote of the omnipresent need for explicit delegation of any right: “No one’s consent could be presumed against him, without his actual consent being given. . . . And to make it binding upon any one, his signature, or other positive evidence of consent, was . . . necessary.”
How, then, could a jury claim jurisdiction over a man who refused to delegate his right? Certain laws or societal conditions were so obviously beneficial that Spooner assumed everyone would agree to them. Nevertheless if some individuals objected to trial by jury, perhaps preferring a panel of experts, then “they must . . . form a separate association for that purpose.”
In short, even its staunchest advocates viewed trial by jury as neither a natural right nor an automatically delegated one. It was an active preference.
Is Trial by Jury Good for Liberty?
A key question for any strategy is whether it achieves its intended goal. With trial by jury or nullification the goal is to protect individuals against unjust law. Many critiques of its effectiveness are utilitarian and address how best to structure a jury. For example emphasis is placed on the need for a randomly chosen jury rather than a selected or screened one that can be sculpted by the State.
Other critiques are more fundamental. For example juries can easily achieve the opposite of their intended goal; they can further injustice by refusing to convict those who are guilty of violating just law.
Consider one historical type of jury nullification. In the early and mid-twentieth century, all-white juries in the South notoriously refused to convict whites who attacked or murdered blacks. The two early trials of Ku Klux Klan member Byron De La Beckwith for the 1963 murder of black civil rights activist Medgar Evers are shameful examples. Only in 1994, when the political climate had dramatically changed, was Beckwith convicted in a third trial.
Jury nullification is also cited as a factor in the acquittal of police officers who use excessive force. Even when the violence is videotaped, juries are flagrantly reluctant to apply the law to on-duty officers as they would apply it to the average citizen. In short whether a jury likes a defendant can easily determine a verdict.
Nevertheless it is often claimed that nullification results in justice more often than not. In his essay “The Jury: Defender or Oppressor,” contemporary libertarian Michael E. Coughlin described how effective jury nullification could be: “During the 19th century in England there were some 230 capital crimes, that is crimes which would result in capital punishment for the convicted. Because juries continually refused to convict many of the people charged with capital crimes, believing the punishment was far out of proportion to the crime itself, Parliament eventually was forced to reduce the number of capital crimes in England.”
Unfortunately, no similar data on the rate of injustice from nullification seems to exist. The nineteenth-century libertarian Stephen Byington argued, however, that prejudice need not be widespread for it to disastrously impact the jury system. “If only ten per cent of the people were of this sort [unfair], more than sixty-four per cent of the juries would include one or more of these men to prevent a conviction.”
In short, jury nullification can occur for reasons good or ill, from ingrained justice or from inbred prejudice. Just laws may be as vulnerable to nullification as oppressive ones.
A Cost-Benefit Analysis
As a strategy trial by jury or nullification has advantages; for example, it creates no law. Moreover, it can counter the corruption of individuals. Spooner argued that jury power was required precisely because “justices are untrustworthy . . . exposed to bribes, are fond of authority, and are also the dependent and subservient creatures of the legislature.”
The strategy also has disadvantages. Consider one: The doctrine of the rule of law claims no one is above the law, which should be well-defined and stable rather than arbitrary. Thus the average person is protected from the shifting will of an elite and able to act with some degree of certainty about the future. But if one purpose of law is to provide a predictable society, jury nullification introduces a large element of uncertainty. To the extent laws are just and evenly applied, there would seem to be tension between nullification and a proper rule of law.
Trial by jury and jury nullification are championed as a grassroots strategy for freedom by some and decried as a form of “thug tyranny,” or majority rule, by others. Clearly, it can function as either. History demonstrates that juries can facilitate injustice.
Individuals are responsible only for their own actions, not for the misdeeds of others. But whenever possible, moral preference should be given to strategies like nonviolent resistance or education that do not carry the likelihood of harming innocent others. Not all strategies are equal; trial by jury may well be less equal than others.
Nevertheless, it is difficult to hold back applause at the mutiny in Montana, which demonstrated how the good will and common sense of a handful of fair people can defeat an unjust law.