In a fascinating recent episode of the podcast Radiolab, the show takes up the topic of jury nullification. It begins with the story of a woman, Laura Kriho, who, while serving as a juror, was horrified to learn of the lengthy sentence associated with the crime before the jury (possession of methamphetamine). She told the other jurors that even if they believed the prosecution had proved the defendant’s guilt beyond a reasonable doubt (a belief which she did not share), they could acquit for any reason, including the unduly harsh sentence that would follow a conviction. One of the other jurors wrote a note to the judge informing on Kriho, and the latter was subsequently charged with and convicted of contempt of court for her actions, for intentionally serving on a jury with the intent to obstruct justice. This sort of punitive response to an attempt at jury nullification is highly unusual (according to the show, it has not happened in over 300 years), but it highlights the fact that jury nullification is not exactly permissible, even though it is a power that jurors have. In this column, I will consider how we ought to think about jury nullification, a power that some view as a right and that others regard as a step toward anarchy.
What Is Jury Nullification?
Jury nullification occurs when a jury is convinced beyond a reasonable doubt of the guilt of a defendant in a criminal case but nonetheless votes to acquit him or her of the charges. A jury could also do the opposite—could vote to convict someone even though it is not convinced of his or her guilt. However, in the latter case, if the evidence does not support a conviction, the judge can direct a verdict of acquittal, notwithstanding the jury’s contrary decision. In the first case, by contrast, when the jury acquits against the evidence, there is nothing that the judge can do after the verdict is in. There is no power in judges to direct a verdict of conviction. The jury trial right means that the jury’s verdict of acquittal stands, no matter how contrary to the evidence. One purpose of this asymmetry, at least in theory, is to avoid empowering potentially biased officials to unjustly convict defendants who have correctly been deemed not guilty by a jury of their peers.
It is not obvious that the asymmetry is a good thing. If the evidence does not support an acquittal, perhaps a judge should be able to direct a verdict of conviction. I recall that after the O.J. Simpson acquittal was announced, a relative of mine asked whether the judge could direct a verdict of conviction against Simpson. I had to say no. And in fact, regardless of whether the jury is sincerely convinced of the defendant’s guilt or not, it seems somewhat troubling that a verdict that is directly controverted by overwhelming evidence in the case can nonetheless stand, just because a jury made the decision. Shouldn’t the facts matter?
This is part of the argument against nullification. The idea is that jurors have a job to do—to determine whether the facts are as one side portrays them or whether they are as the other side portrays them. When the jury has obviously not done its job—when the evidence points to only one result, and that result is not what the jury reached—it seems only fair that some official person can step in and right the wrong. Otherwise, juries become a law unto themselves, nullifying the legal rules that say that when the prosecution proves guilt beyond a reasonable doubt, the defendant must be convicted.
When Is Jury Nullification Appropriate?
There are times, however, when most people would acknowledge that jury nullification feels “right.” When a law is patently unjust, and prosecutors are nonetheless trying defendants for violating that law, nullification provides an escape hatch so that there need not be an unjust conviction.
One example of this is when juries used to nullify in prosecutions of people who were violating the fugitive slave law. Such nullifications were right and just, because they spared people who were helping slaves gain their freedom from being criminally punished for heroic actions.
Another situation in which nullification will strike many people as a positive good is when a person is prosecuted for violating a generally reasonable law that, in the particular case, would lead to unjust results. A person with AIDS might need marijuana to alleviate his nausea so that he can eat and stop wasting away, and his grandmother might grow marijuana for that purpose. One might believe that the law against possession or cultivation of marijuana is generally sound, but punishing the grandmother in this case seems unjust because she is saving her grandson’s life. If she were to be prosecuted for her actions, nullification would seem like a good thing, sparing her an unjust penalty for doing something positive.
Note that in both of these examples, the government is doing something unjust—either enforcing a bad law or enforcing an arguably reasonable law against someone whose conduct is beyond reproach. In such cases, the jury serves as the conscience of the community by nullifying and preventing an injustice from being done. One might say that the power to prosecute people for violating the fugitive slave law or for cultivating marijuana to save a grandson’s life is a wrongful power, and the jury’s ability to nullify allows “the people” to put a stop to the exercise of that wrongful power.
When Is Nullification Problematic?
In many cases, though, nullification will strike most of us as an abuse of the power of the jury to acquit a defendant in a criminal action. Such cases include those in which the law is just and the defendant is plainly guilty, but the jury happens, perhaps for reasons of racial or gender bias, to disagree with the law.
One example that came up on the Radiolab podcast is date rape. It is very difficult to get a conviction in a date rape case, despite the fact that date rape is a serious crime that devastates the lives of its victims. Juries may focus on what the victim was wearing or how attractive she is or her decision to go on a date with the defendant, and ignore the fact that her testimony is credible and proves that a rape in fact occurred. To nullify in such cases, which jurors apparently do with some regularity, is to rebel against a just law because in the jurors’ opinion, the victim “asked for it.” Along similar lines, there was a time when it was very difficult for a prosecutor to get a conviction for the murder of an African American victim by a white defendant (that continues to be true in police shooting cases). Even if the evidence plainly supported a conviction, racist juries would acquit the defendant in defiance of a just law whose application they did not like.
Less offensive but also problematic are acquittals that result from juries’ feelings about the defendant. When I served for a month as a grand juror in New York City, I remember at least one case in which the grand jury refused to indict a man (a rare thing in itself), and the man’s disarming and sweet personality clearly played a role. At one point, when the accused was about to testify, a grand juror sitting at the front of the room encouraged him to fix his shirt, as though he were her son rather than an accused criminal whose conduct she was assessing. If jurors either like the defendant very much or dislike the victim in a particular case, they could choose to bring back an acquittal notwithstanding the incontrovertible evidence of guilt. This is part of why defense attorneys often try to portray a victim in very negative and unappealing ways, so that jurors might conclude that he or she “needed killing” or at least does not deserve to have the perpetrator punished.
The Hard Cases
It is easy to defend nullification when a law or its application is unjust, and it is likewise easy to condemn nullification when it reflects misogyny or racism or a personal reaction to the parties to the case. But are there in-between situations? Paul Butler, a law professor at Georgetown University has argued that nullification should be used by African American jurors when an African American defendant stands accused of a non-violent crime, as a way of reducing the racial disparity in convictions for such offenses. As I argued in a written response to a short version of Butler’s argument (both argument and response contained in Criminal Law Conversations), such a practice—if it became widespread—would discredit African American potential jurors being considered for a case and would do little to truly address the problem of disparate treatment, because the law and prosecutorial discretion would continue to operate the same way as they did before in most cases. I suggested that we might instead seek to change the law so that nonviolent acts (particularly drug offenses) are no longer criminal, a solution that wouldn’t rely on the happenstance of whether African American jurors who had signed onto Butler’s program happened to find their way onto a particular African American defendant’s jury.
When I heard that the woman in the Radiolab story was prosecuted for proposing nullification, I must admit that I was outraged by that. I have never liked nullification, but it seems to me that the jury trial right does reasonably entail the power to nullify. We should not be punishing jurors for understanding that they have that power, even if we prefer that they not exercise it. I do not regard nullification as a right, and I oppose the idea of telling jurors that they can nullify, as I explained here. I suppose this creates some arbitrariness, because many jurors will know of their power to nullify, while others will not. Nonetheless, I think we should seek to minimize the practice of nullification, because it seems more likely to be misused, as in date rape prosecutions, than justly used, as in fugitive slave law prosecutions.
I suppose this means that I think that for the most part, our criminal laws are just and, perhaps more importantly, justly applied. My hope (and maybe my expectation) is that if a law itself or its application in a particular case were unjust, then a prosecutor would refrain from prosecuting. Unlike jurors, prosecutors have an inherent discretion to decide to “nullify” by not prosecuting someone who is doing something right or who is violating an unjust law. I prefer to rely on the rule of law, which includes prosecutorial discretion, than to invite lay people with their own prejudices and faulty intuitions to refuse to convict when the evidence supports a conviction. This reflects the fact that I (tentatively) have more faith in lawmakers and the executive branch of government than I do in my lay peers. With President Trump in office, of course, this could change.