August 18, 2002

JURY — AND GRAND JURY — NULLIFICATION: Howard Bashman points to an interesting Ninth Circuit case on grand jury instructions, and goes from there into a general discussion of jury nullification: the power of juries to refuse to convict (or, where grand juries are involved, to indict) even where the evidence is sufficient, if they feel that such a refusal is necessary to serve justice.

Howard sees jury nullification as an inevitable bug in the system: “Jury nullification is something our system endures because there’s no other alternative, but it’s not something to be encouraged.” I think this is wrong: it’s not a bug, it’s a feature.

Jury nullification gets a bad rap, being associated in the public mind with the O.J. trial and with the failure of various juries to convict racist killers in the South in some famous cases during the 1940s and 1950s. Such discretion, the conventional wisdom says, is at odds with justice.

Well, maybe — but if so, the jury is the least of the problem. Everybody else in the system, from the cop on the beat, to the prosecutor, to (realistically) the judge, has discretion to let an offender off if they think conviction would be unjust. But oddly enough, it’s only the excercise of this power by juries that gets a horrified reaction from the justice system. A cynic might conclude that this is because juries don’t have union cards, and aren’t as readily controlled by the other players in the justice system.

The cynic would have a stronger case for this position than Howard’s post suggests. In a recent book entitled Jury Nullification: The Evolution of a Doctrine, Clay S. Conrad looks at the conventional wisdom and the history of jury nullification and finds some mismatches, concluding that juries were meant to have this power, and that the justice system’s opposition to it comes mostly from institutional self-interest. He also draws support from legal scholars such as Leonard Levy and Akhil Amar.

For a summary of Conrad’s argument, and some suggestions of my own, you can read this review of Conrad’s book that I wrote for the Cornell Journal of Law and Public Policy. The opening sentence, with all due modestly, is among the catchier ones in legal scholarship.

UPDATE: Howard calls my remarks “especially thoughtful,” which coming from him is quite a compliment. Though I notice he doesn’t say whether he agrees. . . .

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