A New Slant on Jury Nullification

Jury nullification is the theory that a jury should be able to render a verdict it believes is just notwithstanding what the law and the facts of the case may require.  Most often, jury nullification is pushed by libertarians in the context of drug prosecutions.  Under libertarian theory, drugs should be legal, and obstinate legislative refusal to repeal drug laws should be nullified by juries’ refusal to convict defendants in drug cases.  An offshoot of the same theory is that juries should acquit because, even if drug laws are arguably acceptable in some circumstances, the punishments, particularly mandatory minimum sentences, are so wildly excessive that a justice-oriented jury should prevent their imposition.

There are numerous problems with nullification theory.

One is that it displaces law with will; why have a legislature at all if a random selection of 12 people is adequate to “enact” its own “law” as it feels moved to, one case at a time?  A second is that nullification undermines one of the central purposes we have law to begin with, to wit, so that citizens will know what the rules are.  If a pro-drug jury can acquit a defendant on the very same evidence an anti-drug jury would find warrants conviction, what’s left of the idea (inscribed above the Supreme Court) of Equal Justice Under Law?  A third problem is that nullification is not, contrary to what nullifiers assume, guaranteed to benefit the accused over the state.  Suppose the long-time town bully is on trial for his latest act of menacing, but the prosecution’s evidence comes up short.  Is the jury free to ignore the law requiring proof beyond a reasonable doubt because it believes (not without reason), that the defendant has had it coming for years, and even if the government didn’t quite get there in this particular case, what the heck, the just result is to give the bully the punishment he’s spent his life earning?

The problems with nullification have been known for years, which is why the theory essentially goes nowhere (except on libertarian blogs).  One of the most florid illustrations of its deficiencies lies simply in its history.  We did have nullification in this country  —  in the Jim Crow days of the Deep South, when juries simply refused to convict white defendants of even the most vicious and well-proven crimes against blacks.  It’s hard to find a more vivid illustration of why displacing law with will is a bad idea.

The mirror image of this kind of rank injustice has now shown up, however.  As this story in the Washington Times describes it:

In response to the mistrial of a former South Carolina police officer accused of murdering a fleeing black man, the editor of a prominent legal site is calling on black jurors to acquit black defendants accused of, among other things, murdering white people.

Elie Mystal, editor of Above The Law, said acquitting black defendants regardless of guilt would “put the shoe on the other foot for a change.”

“Maybe it’s time for black people to use the same tool white people have been using to defy a system they do not consent to: jury nullification,” Mr. Mystal said in the op-ed published Wednesday. “White juries regularly refuse to convict or indict cops for murder. White juries refuse to convict vigilantes who murder black children. White juries refuse to convict other white people for property crimes.

“Maybe it’s time minorities got in the game?” he continued. “Black people lucky enough to get on a jury could use that power to acquit any person charged with a crime against white men and white male institutions.”

Mr. Mystal, a graduate of Harvard Law School, said the severity of the crime makes no difference.

“Assault? Acquit. Burglary? Acquit. Insider trading? Acquit,” he said. “Murder? … what the hell do you think is happening to black people out there? What the hell do you think we’re complaining about when your cops shoot us or choke us? Acquit.”