Abstract
In the practice of “jury nullification,” a jury votes to acquit a defendant despite sufficient evidence of lawbreaking, on the grounds that a conviction would be unjust, usually because the law itself is unjust or because the expected punishment would be unduly harsh. This practice is widely condemned by judges. Nevertheless, in the case of an unjust law or unduly harsh punishment, there are no good arguments against jury nullification, and there is one powerful argument in its favor: it is prima facie wrong to knowingly cause unjust harm to others. Thus, jurors are often morally obligated to disregard the law.
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Notes
- 1.
See John Peter Zenger, “A Brief Narrative of the Case and Trial of John Peter Zenger” (1736), available at http://law2.umkc.edu/faculty/projects/ftrials/zenger/zengerrecord.html, accessed April 5, 2012.
- 2.
See Harold Leventhal, majority opinion in United States v. Dougherty, 473 F.2d 1113 (1972), at pp. 1133, 1135; David L. Bazelon, dissenting opinion in United States v. Dougherty, p. 1139.
- 3.
See Simon E. Sobeloff, opinion in United States v. Moylan, 417 F.2d 1002 (1969), at p. 1006.
- 4.
Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed …”; Amendment VII: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
- 5.
Federalist 83 in Alexander Hamilton, James Madison, and John Jay, The Federalist in Great Books of the Western World, vol. 43, ed. Robert Maynard Hutchins (Chicago: Encyclopaedia Britannica, 1952). The Federalist Papers were written before the US Constitution was ratified, for the purpose of explaining and defending the proposed Constitution.
- 6.
John Jay, instructions to the jury in Georgia v. Brailsford, 3 U.S. 1 (1794), p. 4; emphasis added.
- 7.
See Human Rights Watch, No Escape: Male Rape in U.S. Prisons (New York: Human Rights Watch, 2001), available at https://www.hrw.org/reports/2001/prison/, accessed May 17, 2016; Allen J. Beck, Marcus Berzofsky, Rachel Caspar, and Christopher Krebs, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 (U.S. Department of Justice, Bureau of Justice Statistics, 2013), www.bjs.gov/content/pub/pdf/svpjri1112.pdf, accessed May 17, 2016.
- 8.
See Todd R Clear, “The Impacts of Incarceration on Public Safety,” Social Research 74 (2007): 613–30.
- 9.
“Pernicious”: Robert H. Bork, “Thomas More for Our Season,” First Things: A Monthly Journal of Religion & Public Life 94 (1999): 17–21, at 20. “Intellectually bankrupt”: Robert J. Steigmann, concurring opinion in People v. Smith, 296 Ill. Ap. 3d 435 (1998). “Indefensible”: Joan Biskupic, quoting D.C. Superior Court Judge Henry F. Greene, “In Jury Rooms, Form of Civil Protest Grows,” Washington Post, February 8, 1999, p. A1, available at http://www.washingtonpost.com/wp-srv/national/jury080299.htm, accessed April 5, 2012. Warnings of “anarchy”: Sobeloff 1969, p. 1009; Leventhal 1972, pp. 1133, 1137; Lawrence W. Crispo, Jill M. Slansky, and Geanene M. Yriarte, “Jury Nullification: Law versus Anarchy,” Loyola of Los Angeles Law Review 31 (1997): 1–61, at pp. 39, 41; Bork 1999, p. 21; Biskupic 1999, quoting Colorado circuit Judge Frederic B. Rodgers.
- 10.
Something like this concern is suggested by Bork (1999) and Dan Markel, “Retributive Justice and the Demands of Democratic Citizenship,” Virginia Journal of Criminal Law 1 (2012): 1–133, at pp. 78–9.
- 11.
For my views on moral knowledge, see my Ethical Intuitionism (New York: Palgrave Macmillan, 2005). For some of my views on justice, see my The Problem of Political Authority (New York: Palgrave Macmillan, 2013); “America’s Unjust Drug War,” pp. 223–36 in The Right Thing to Do, fifth edition, ed. James and Stuart Rachels (New York: McGraw Hill, 2009).
- 12.
See Michael Huemer, “Why People Are Irrational About Politics,” pp. 456–67 in Philosophy, Politics, and Economics, ed. Jonathan Anomaly, Geoffrey Brennan, Michael Munger, and Geoffrey Sayre-McCord (Oxford: Oxford University Press, 2015) available at http://spot.colorado.edu/~huemer/irrationality.htm, accessed July 5, 2017; Bryan Caplan, The Myth of the Rational Voter: Why Democracies Choose Bad Policies (Princeton, N.J.: Princeton University Press, 2011); Jason Brennan, Against Democracy (Princeton, N.J.: Princeton University Press, 2016).
- 13.
See Tim Carney, The Big Ripoff: How Big Business and Big Government Steal Your Money (Hoboken, N.J.: John Wiley & Sons), 2006.
- 14.
See, for example, Huemer 2009; Douglas Husak, Legalize This! The Case for Decriminalizing Drugs (London: Verso, 2002).
- 15.
For this concern, see José A. Cabranes, opinion in United States v. Thomas, 116 F.3d 606 (1997), at pp. 608, 614; Biskupic 1999, quoting Judge Greene.
- 16.
US Department of Justice statistics show a 94% conviction rate in federal prosecutions in the United States; see ABC News, “Feds’ Conviction Rate Bad Sign for Blago,” August 4, 2010, http://abclocal.go.com/wls/story?section=news/local&id=7593302; accessed October 3, 2012. Earlier data show a conviction rate of between 85% and 90% for state courts; see J. Mark Ramseyer, Eric Rasmusen, and Manu Raghav, “Convictions versus Conviction Rates: The Prosecutor’s Choice,” Harvard Law and Economics Discussion Paper No. 611 (2008), p. 17, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1108813, accessed October 3, 2012.
- 17.
See Ronald M. George, opinion in People v. Williams, 106 Cal.Rptr.2d 295 (2001), at p. 311; John W. Bissell, “Comments on Jury Nullification,” Cornell Journal of Law and Public Policy 7 (1997): 51–6.
- 18.
See Andrew D. Leipold, “Rethinking Jury Nullification,” Virginia Law Review 82 (1996): 253–324; Crispo et al. 1997, pp. 3, 39.
- 19.
Leipold 1996, pp. 304–6; Crispo et al. 1997, pp. 38–40. This is the argument that prompted Judge Steigmann (1998, p. 441) to declare jury nullification “intellectually bankrupt.”
- 20.
For a more thorough discussion of the issues in this chapter, see my “The Duty to Disregard the Law,” Criminal Law and Philosophy, published online October 13, 2016, https://doi.org/10.1007/s11572-016-9407-4.
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Huemer, M. (2018). A Defense of Jury Nullification. In: Boonin, D. (eds) The Palgrave Handbook of Philosophy and Public Policy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-93907-0_4
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