Is That Legal?

I can't speak for Glenn Reynolds, but Balko's a pretty hard-core libertarian: these are people who think that government issued drivers' licenses are an abuse of our civil liberties. Don't get me wrong: libertarians are immensely sensitive to power and abuses thereof, and their political analysis is often very fine, but their idea of progress scares me just as often as I agree with it.

Eric,
I understand your question, but perhaps you could help me understand why many many laws do not apply to elected officials? Pretty much every big city mayor I know about (and most small town mayors too) violate hundreds of laws every week. Some of them quite serious, such as anti-corruption, anti-kickback, sunshine, etc.

Yet despite the fact they everyone knows they are breaking these laws, they are seldom if ever indicted, and if a private citizen brings an action it is dismissed immediately on technical grounds.

Isn't this "prosecutorial nullification"? Why is this behaviour (the norm thoughout human history I know) not "lawlessness"?

Cranky

But isn't there some nuance to your position, profesor? What about an obviously immoral law? If you were on a jury for a Hirabayashi or a Korematsu, would you have voted to acquit or convict?

Cranky, there's a difference between a jury's decision not to convict (or acquit) and a prosecutor's decision not to indict. A jury is instructed that it *must* convict if it finds proof beyond a reasonable doubt (and that it *must* acquit if it doesn't). That's why the jury's contrary decision is quite literally lawless--it is a direct contradiction of a legal requirement. A prosecutor, on the other hand is under no legal *obligation* to indict anyone; the question rests in his or her discretion.

Now, having said that, I hasten to note that if the prosecutor declines to prosecute simply because the putative defendant is powerful and/or popular, that would violate the ethical rules that inform the prosecutor's exercise of discretion, and would be a bad thing.

Former juror: Yes indeed, I can imagine cases that would tempt me to violate the judge's instructions. Of course.

I don't dispute that the nullification power is an inevitable by-product of the double jeopardy prohibition on government appeals of acquittals.

My point is slightly different: advocates of "nullification" love to point to cases in which juries have exercised discretion to come heroically to the rescue of oppressed defendants. But they tend to ignore that what they're really advocating is discretion, which can just as easily be exercised punitively as heroically. That's why I say it should not be an aspiration for our legal system.

Professor:

I am not sure I've heard a nullification proponent argue for nullification convictions, just nullification acquittals. But I suppose you're right that juries have ignored law to convict unpopular defendants. Those cases are different than nullification acquittals, because the judge can reverse those, and the appellate court can reverse those, and the governor can pardon or exonerate, whereas the nullification acquittal is the final word. I guess my position is that nullification acquittals are best held in reserve for the extremely rare cases when they're needed.

I don't care to get involved in that whole ideological thing about the political power being vested (or not) in the jury. I know that over the decades and centuries that argument has swung back and forth, and currently the various states have different rules on it.

My point is slightly different: advocates of "nullification" love to point to cases in which juries have exercised discretion to come heroically to the rescue of oppressed defendants. But they tend to ignore that what they're really advocating is discretion, which can just as easily be exercised punitively as heroically. That's why I say it should not be an aspiration for our legal system.

Neither of us is stupid or naive; we both know how the world really works. But I have a hard time condemning jury nullification when, e.g., Richard M. Daley has been allowed to run rampant over corruption and sunshine laws for a decade with nary a peep from a states attorney. "Discretion" - sure.

Cranky

Former juror, you've now circled back to the point I made in my post, except that you're missing it. While you're right that reversals and executive clemency for convictions not supported by a jury's finding of proof beyond a reasonable doubt are possible, they are also vanishingly rare.

Of course you haven't heard a nullification proponent argue for nullification convictions. How would it benefit the argument they're peddling to acknowledge that jury discretion can be applied viciously just as easily as heroically? Or that there are no vibrant mechanisms in the law to prevent the vicious cases?

(And this doesn't even touch the problem of what we might call viciously motivated nullification acquittals, like the acquittals of Klansmen by all-white southern juries.)

Cranky, did you read my reply? The second paragraph, where I condemn the sorts of exercises of prosecutorial discretion that you're (rightly) complaining about?

If you want to have an argument with somebody else who holds a view you find easier to criticize, go find him.

Nullification may be just a name for lawlessness that you happen to agree with, but so what? If I'm on a jury, and the government is trying to imprison a cancer patient who used marijuana to stay alive, am I supposed to make myself complicit in his death in order to set an example for, say, a white racist who would acquit a white man despite proof beyond a reasonable doubt that he had committed a hate crime against a black man? By the way, my cancer patient example is not hypothetical; there was a cancer patient, imprisoned for his use of medical marijuana, who, unable without marijuana to keep his food down, choked to death in prison on his own vomit.

Henry, nobody is debating whether nullification should exist. It does, and it always will (so long as we have a Double Jeopardy Clause that precludes government appeals of acquittals). The question is whether nullification should be encouraged, and whether juries should be instructed that they have the power to refuse to follow the law. I think not, because I think those changes to existing law could not effectively be cabined to just "heroic" acquittals.

Professor:

Thanks for your comments and insights. I guess my opinion is fairly close to yours, so I won't belabor things. I see a moral danger is having nullification and a moral danger in not having nullification.

If Eric had been on the Hirabayashi or Korematsu jury and had voted to acquit in the face of convincing evidence that the defendant had violated the law, I doubt it would have been nullification: more likely it would have reflected his judgment on the constitutionality of the law, which was at issue in both cases.

But of course, since judges, not juries, get to decide legal issues such as whether a law is constitutional, maybe in my example Eric would be engaging in nullification--"just a name for lawlessness that someone happens to agree with." (Eric should have been the judge in those cases.) Is nullification less troublesome when the authority of the law is in question? Is it more justifiable in that case than when the jury isn't asked to question the law but simply thinks it's unfair to apply it to the defendant?

As a few folks have pointed out over at Liberty&Power, jury nullification is probably considerably lessened by the jury selection process, in which "can you vote to enforce this law" is apparently a pretty standard question. This raises other questions, of course, about honesty (and self-awareness) in the jury selection process, and the degree to which people are bound by their answers.

Sally,

I don't believe that the jury was asked to rule on the constitutionality of the law itself, and am pretty sure that as a formal matter the jury was asked only to answer the factual questions underlying guilt. I, too, believe that the Professor would acquit, and hence I believe he too sees a limited, carefully circumscribed need for jury nullification in the case of acquittals under profoundly immoral laws. I agree with the professor that once we admit that exception we may have to live with outcomes we find abhorrent. I don't see any way out of that dilemma.

There was a guy from my school who got into a load of trouble when the police tried to make him and his mate shut up. When they hauled him up before the beak and tried to lock him up, if it hadn't been for some jurors who wouldn't play ball, he would probably still be inside.

Fortunately, they had bottom, and the rest [Howell 6:951 (1670)] is history...

What's my point here? I'm not sure, but I think it's that the juror's in that case weren't informed of their power of nullification, mostly because it wasn't until after they'd exercised it that that power was formally acknowledged.

Their refusal to convict in a case that failed the "Puke" test, didn't need a "fully informed jury " movement- indeed, their willingness to face the consequences of their actions are part of what makes this a pure and noblle example of civil disobedience.

Simon
P.S.
Eric - didn't you publish an article about some cases where Judges refused to enforce internment orders? I'm suffering from Friday dislexisa and can't find it.

A few answers:

1. Historically, jury villification is rare. Erroneous convictions are more often the result of misunderstood jury instructions (such as the beyond reasonable doubt instructions, which in practice place a burden on defendants to establish doubts) than due to jury villification.

2. Of course jury discretion can be abused. However, so can police, prosecutorial, and judicial discretion -- any kind of discretion, for that matter. The fact that juries operate in diverse, deliberative bodies, while police, prosecutors and judges largely make their decisions in private or within a monolithic bureaucracy, serves to reduce the likelihood of jury abuse.

3. While I continue to believe that defense attorneys should be able to argue for nullification, it should be a one-way street: prosecutors should not be given similar discretion. In practice, prosecutorial pleas for law enforcement are often nullification pleas that only prosecutors are allowed to make. This gets it wrong from start to finish, and you cannot get it more wrong than that.

Hi!
You seem to me are completely right! I too consider, that " Nullification is just a name for lawlessness that someone happens to agree with - hardly an aspiration for a legal system. "

Good luck