Over at my personal blog, I've been having a back-and-forth on the issue of jury nullification with an L.A. prosecutor who blogs under the pseudonym "Patterico." I can certainly understand why a prosecutor would be opposed to jury nullification. Were more Americans aware of their power to nullify — a tool with a rich tradition in the American founding, by the way — prosecutors would have a lot less power.
Patterico's "gotcha" question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they'd risk perjury charges by taking that oath and then subverting an unjust law during deliberations.
It's a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I'd like to see a civil liberties group mount a challenge to those oaths.
It seems to me the disagreement between opponents and supporters (like me) of nullification boils down to this: I believe that we have enough bad laws, overly aggressive police officers and prosecutors, and imperfections in the criminal justice system that jury nullification is a needed and justified last defense against overreaches of the state. I think there are a not-insubstantial number of real cases — historically and recently — where real people have been wrongly sent to prison, or sent to prison for far too long, to back this up.
Opponents' objections can only come down to one of three positions:
- They doubt the current system gives rise to a significant number of injustices.
- There are a significant number of injustices, but they're okay with that, in the interest of upholding the law.
- There are unjustices, and they are indeed troubled by them, but jury nullification isn't an appropriate way to prevent injustices from occuring.
I think choice (3) is the least morally objectionable position. But it's also the least logical. If these outrages really are outrages, and we're clearly not okay with them, I'm at a loss to see why nullification, with it's considerable history in this country, wouldn't be an appropriate remedy. Indeed it seems to be the only remedy.
Remember, to get to this point, we've already accepted the premise that there is indeed a significant number of injustices, and that we don't believe that they're acceptable. If "changing the laws" were really feasible, then the laws leading to these types of injustices wouldn't be in place to cause the injustices in the first place. They'd already have been changed, or never passed at all. That, or they wouldn't have led to the injustices we've agreed have happened.
In other words, something clearly isn't working.
So if you have an unjust law that's clearly leading to unjust outcomes, what's the solution if you're on the jury? Is voting for what you know to be an injustice out of deference to the wisdom of a bunch of politicians really the correct, moral decision?
Put another way, which act is more immoral, upholding a law made by imperfect men, enforced by imperfect men, and that has clearly led to an immoral outcome, or subverting a wrongheaded law the one time you have the chance, and preserving the freedom of a man who doesn't deserve to go to prison?
Opponents of nullification also really need to answer for what they'd have done had they served on a jury in which the defendant was charged with violating Jim Crow laws, helping smuggle a slave to freedom, exercising his right to free speech in war time, or any number of other clearly immoral laws that have been on the books throughout American history. They need to ask themselves if it's really possible that, given that history, we should just assume that all laws on the books today ought to be immune from the scrutiny of juries simply by virtue of the fact that they made it through the legislative process. Given our imperfect past, isn't it a bit naive to think we're perfect — or even "close enough" to perfect — today?
Keep in mind, too, that upholders of those clearly immoral laws of the past made the same arguments at the time that opponents of jury nullification make today — that even if they conflict with one's own personal values, those laws should have been respected and upheld by jururs by simple virtue of the fact that they were, after all, the law.
Now, it's true that many of those laws were eventually repealed or changed. But their later repeal doesn't account for the fate of the people imprisoned or even executed while they were still on the books. What about them? Wouldn't it have been better if a jury had assessed and acted on the immorality of those laws before they were repealed? And looking back now, isn't it a wonderful thing that many juries did?
There is a reason why we're tried by a jury of our peers and not by a jury of professional experts, trained in meticulously assigning value to evidence. Peers are capable of mercy. They don't — and shouldn't — deal solely in cold equations. They can take into consideration and assess more than just the facts of a case. They're capable of seeing injustice in spite of the law.
And they are the last line of defense against government when government oversteps its bounds.
For more, see Clay S. Conrad's excellent book on the subject, or his synopsis of the book for Counterpunch.