The False Idol of Jury Nullifcation

Folks on both the hard left and the hard right celebrate empowering juries to ignore the law. It's a terrible idea.

R. Kelly’s recent, long overdue convictions tell us many things about how we have to do better as a society: better at prosecuting celebrity criminals, better at caring about young Black women and girls, better at policing sexual abuse in the entertainment industry. But he is also a poster child against one of the most romanticized notions in American politics: jury nullifcation.

“Jury nullification” is the power of juries to ignore the law when reaching decisions. It is usually discussed in the context of criminal cases and usually to refer to acquitting someone who is clearly guilty under the applicable rules, though in theory it could apply to other jury decisions. A jury, for instance, could also nullify by convicting an innocent person, or by awarding damages in a civil suit to a plaintiff not entitled to any, or by finding for a defendant in a civil suit where the plaintiff was injured and is entitled to compensation. The difference though, besides the romance of letting a favored scoundrel go free, is that in those other cases, the jury’s decision is not absolute. Juries that convict the innocent or award the victory to the wrong party in a civil case can be reversed by the trial judge or an appellate court; due to the Double Jeopardy Clause, a jury’s decision to acquit a guilty person is close to absolute. (Occasionally, there may be parallel state and federal offenses available so a defendant can be retried in the other system. But much of the time, the prosecutors are out of luck when this kind of nullification occurs.)

Jury nullification is romanticized on both right and left. Paul Butler, on the left, wrote a famous law review article in 1997 arguing that Black juries ought to nullify and refuse to convict at least some Black defendants. You can also find defenses of jury nullification on the right, especially from libertarian types like Prof. Ilya Somin at Reason Magazine. The Fully Informed Jury Association, which advocates on the issue (and has famously passed out leaflets in front of courthouses to prospective jurors), tends to skew right.

One reason for jury nullification’s popularity, left and right, it is that it is a rule with real historical roots. Some of the advocates of jury trials from centuries ago envisioned juries being judges of the law as well as the facts. And while it is not true nullification, some of the older common law legal rules, such as the standard for negligence in tort cases, are famously open-ended and allow juries not only to decide the facts, but to decide what the legal standard (in that case, “reasonable care”) means in a particular case.

So you have this longstanding power of juries, backed up by some great thinkers of long ago, supported by bipartisan agreement, and at least broadly consistent with some of the powers juries already have. What’s the problem?

Well, let’s get back to R. Kelly. He was acquitted of child pornography charges in 2008 despite the fact that the prosecution had him dead to rights- he videotaped himself urinating on an underage girl. Why was he acquitted? It wasn’t because guilt wasn’t proven beyond a reasonable doubt- his defense was flimsy. (He claimed it was an R. Kelly look alike in the video, but not only did the guy look exactly like him, but the video was was filmed in R. Kelly’s house and there was extensive evidence that R. Kelly was seeing the girl who was depicted in the video.) It was he was tried in Chicago, by a jury of his peers, and he was a rich man and beloved celebrity in that community. In other words, it was O.J. Simpson II.

And that is the reality of jury nullification. Advocates imagine it as a great tool against unjust prosecutions, a way for citizens to stand up against the power structure. In reality, though, jurors are not independent from the structures of power and oppression in society; like everyone else, they are shaped by them. And this means rich and powerful people who enter trial already well liked by jurors can then afford to hire the skilled lawyers necessary to convince jurors that their acquittal serves some great cause.

Further, letting out a guilty man is not costless. Obviously, it defeats any notion that a person should be held responsible for their actions. And if there’s one trait in rich people and celebrities that we do not want to reinforce, it is their lack of accountability for their actions. How many wealthy and powerful people already believe that the justice system is for the little people, that they are so powerful that they can do whatever they want? Telling them “if you get in trouble, you will be able to use your money to convince a jury to let you go” is exactly the wrong message to send to them.

But beyond the specific crime that gave rise to the trial, jury nullification also defeats the goal of incapacitating dangerous people. Prof. Butler imagined a world where jurors refused to convict only nonviolent offenders such as Black people brought in on drug charges, but jurors hold this same power in trials for violent offenses, including charges such as murder and rape. (And this is before we even consider the more controversial issue that a person selling drugs in the Black community may also be endangering Black people’s lives.) And while I’m sure the OJ jury figured he wasn’t going to go out and murder another ex-wife, what can one say about R. Kelly’s first jury? There was plenty of evidence already amassed that he was a serial pedophile, and even absent that evidence, we all know that a lot of pedophiles do reoffend. Acquitting Kelly was highly likely to turn out to be letting a very dangerous man loose to prey on young Black girls who might have assumed that because he was acquitted, he must have been innocent and the government must have set him up.

And it should be noted that even OJ did reoffend. That robbery in Nevada wasn’t the worst crime in history, but it did involve guns and some very questionable people, and someone could have gotten killed. After the LAPD and LA prosecutors failed to take his domestic violence offenses seriously, and failed to competently investigate and prosecute his murder, and the jury let him go, he probably figured there’s no way he would face serious punishment for armed robbery.

Those are recent examples, but there’s an ugly history of jury nullification that shows the same thing: that rather than being a tool of the oppressed against the system, nullifying jurors follow the lead of the powerful. In the Jim Crow South, there was plenty of jury nullification: and it involved all white juries refusing to convict white defendants for lynching or using violence against Black people despite conclusive evidence.

Advocates of nullification don’t really have a suitable answer for this. It’s obviously clear that this is what is going to happen. After all, powerful people not only are often popular to begin with and can afford the best lawyers, but they can also intimidate jurors (I am sure if you were a white guy on one of those Southern juries who actually thought the white defendant was guilty and should pay for his crime, you had enormous incentives not to speak up; there is also a significant quantum of evidence that OJ’s jurors were afraid of what they might face in their communities if they convicted Simpson). Indeed, how many times in history was the mob hanging outside the courthouse during a major trial correct on the law and the facts? Those are the people who you put in charge when you endorse jury nullification.

Usually the response to this point is a retreat to principle. Alas, the principle behind jury nullification, despite its historical pedigree, is not a good one either. Jurors just aren’t judges of the law as well as the fact. Indeed, the legal system considers jury instructions (the directions to jurors that they are told they must follow) so important that when a wrong instruction is given, a defendant’s conviction can be reversed forcing a retrial or release of the defendant. I don’t hear any nullification advocates arguing that this practice be ended (after all, part of what motivates people to advocate for nullification is that they want to see more defendants beat the rap), but if you believe juries should be told they don’t need to follow the judge’s instructions, I don’t see how the practice can be justified.

In addition to being instructed to follow the law, jurors who are discovered pre-verdict to be advocating nullification can be thrown off of juries. It’s a violation of the juror’s oath, which includes an obligation to follow the law.

And on a more theoretical level, there’s no reason to think that jurors could judge the law fairly. Is a juror really in a position to, for instance, decide what types of securities fraud should be illegal, or to determine the legal criteria a defendant must meet to assert an insanity defense? These are policy questions, and we properly have legislatures and a common law judging system to answer them. There’s no reason to think that 12 random people picked off the street and put in a room with the door closed, with no knowledge of any of the policy questions and no access to expertise, are going to make a better decision on such policy matters.

Now having said all this, nobody doubts that juries actually hold the power to nullify. They can do it. As long as they cover their tracks and don’t get ratted out to the judge, they can get away with it. Nobody will stop them, and nobody will prosecute them for violating their oath. And if you want to argue that, despite the historical evidence that this tool is a tool of the powerful, that perhaps there could be a case where jury nullification could check an out of control prosecutor, well, the power does exist. It’s there. It could in theory be used for that purpose.

But we shouldn’t celebrate it, and we definitely should not tell jurors about it or disable the various mechanisms we have in place to stop it. Because there are enough structures in our justice system already that benefit the rich, the powerful, and the famous. Let’s not add one more.