Yes, Jury Nullification has been used for evil. But it's also been used for good, and I feel like you're missing that. You didn't include any historical cases where it has been used for good, such as when northerners refused to allow black slaves to be returned to slavery.
I think that, if you told juries about Jury Nullification, then they would probably free more just people then free unjust people. After all, the rich and powerful can already tell and bribe jurors about jury nullification, so I don't think that telling everyone would benefit the rich. That being said, I think telling jurors about Jury Nullification would cause defenses to be more focused on appealing to the Juror's emotions rather than the law, so it's probably a bad idea. Still, I disagree with your conclusion that Jury Nullification is primarily a force of evil.
That did happen, but it didn't happen very often. Whereas nullification by white juries in the South was so consistent that even prosecutors with some sympathy for the victims of Black violence often didn't bother to bring their cases. And when they did, they always lost.
Basically as a practical matter, what you get with jury nullification is vox populi in its crudest sense. Whatever extralegal result a particular community favors, that's what you get. And as I said, it opens the door to mob rule as well, because it takes away the only tool available ("I had an obligation to follow the law") that might allow a jury to actually do the right thing when it is unpopular in the community.
So even if there was some theoretical justification for letting 12 random citizens with no qualification decide what the law is, in practice, the game is never going to be worth the candle. And at any rate, jurors still CAN nullify if their hearts are really set on it; it's interesting that nobody seems to have any examples of modern juries exercising this power for good that would outweigh all the teenage girls R. Kelly sexually assaulted after his first jury nullified and he thought he could get away with anything.
There's been a measurable amount of jury nullification in cannabis cases -- we cannot know the juries' thinking, but it was probably "people have a 9th amendment right to carry a plant around, this law is unconstitutional" -- and I think the number of innocent people kept out of prison on those grounds is probably significant. Of course, it required that the social tide turn first: it still turned before the legislatures acted.
I actually can't think of another area of law with a lot of jury nullification outside the racist South, which does show how deranged the drug laws were... actually, I can. Environmental protestors have had a number of jury nullification cases, which reflects the general societal understanding that they were doing the right thing and basically were being prosecuted for *reporting* a crime which the prosecutor failed to prosecute.
The monopolization of prosecutions by DAs has left vast scope for corruption; independent grand juries, in the common law tradition, allowed anyone to bring a private prosecution, though it had to get past the grand jury's filter. Much direct action has been taken because the appointed and elected DAs won't prosecute major crimes which everyone knows about. (Again, the mere existence of private prosecutions like they have in the UK would largely prevent this problem.) When these same corrupt DAs then prosecute the people who are publicizing the crimes, you are likely to get jury nullification.
I wouldn't worry about mob rule, given that appointed judicial positions have been repeatedly stuffed with handpicked crooked hacks who sucked up to the right powerbroker, while elected judicial positions are pretty much random citizens who managed to get a crowd to support them. Are judges really any better than juries? In the racist South the judges were usually as bad as the juries; six of one and half a dozen of the other.
12 random citizens understand, and respect, the law better than Clarence Thomas or Amy Coney Barrett do -- and we all know it -- and it's time to stop pretending.
Jury nullification isn't supposed to be against the *law*. It's supposed to be against the *judges*.
We have plenty of judges who are corrupt enough that jury nullification would have helped. Donna Scott Davenport. Michael Conahan. Mark Ciavarella. Look them up if you've forgotten. It's no coincidence that they avoided having juries in their corrupt cases.
The history of the jury is one of not trusting judges. People looking at the 1960s-1990s might not understand why. I think people looking today would understand why.
Anyways, I get the feeling that positive cases of nullification would get a lot less news coverage then negative ones, because news readers like being outraged. It's hard to say how jury nullification is used without some hard data (which I imagine would be really hard to find).
Also, I wasn't aware of nullification was used far more often in the south, but I totally believe it. I learned something new today.
Final thought: Now that I've thought on this issue more...I think my support of jury nullification stems from the fact that I feel that it is significantly more likely for a jury wish to acquit a guilty person for an unjust law, rather than a jury acquitting an innocent person for committing a crime. Just think of the thousands, if not hundreds of thousands of people who have been arrested for having tiny amounts of weed. Those people's lives would have been improved if Jury Nullification was known about by the Jurors. Meanwhile, how often do jurors really want to make an innocent person go to jail? Yes, there were obviously racists over 100 years ago who were racist. But I think that, in the present day, it's much less likely for an entire jury to do this. And yes, I know that historical precedent doesn't support my claim. However, I think that we could live in a world where people are more likely to use jury nullification for good rather than evil.
One thing to remember is that the nullifiers won't necessarily have the same criteria for nullification as you would. When the War on Drugs was in its heyday, plenty of juries wanted to (and did) stick it to drug users and low level dealers.
And of course, there's still racism in the system even now. Which drug possessor is more likely to get sympathy from a typical jury- the white kid whose well paid lawyers cleverly get it into evidence that a prison sentence will interfere with his college admission, or the poor Black kid who was in a street gang for awhile and almost flunked out of school?
Depends. Did the poor Black kid get *a jury of his peers*, in other words, nothing but other poor Black kids?
This has been a major problem in the US for a long time. Due to the legal and social fiction that we are all peers, nobody is ever tried by a jury of their peers. But there's a reason "jury of their peers" was the common-law standard, and you articulated it quite clearly.
Now, let's ask the question differently: who's going to get more sympathy from a typical judge, who is rich and went to law school -- the white kid whose well-paid lawyers go to the same social club as the judge, or the black kid who has assigned counsel?
Jury nullification, as I understood it, was never about rejecting the law or the Constitution.
It was about declaring the right of the jury to interpret the law or the Constitution. And the jury has always had the right under common law to interpret the law. This is baked into the Bill of Rights.
Judges often get the law wrong in incredibly blatant and corrupt ways. We all know that "qualified immunity" is made-up shit; law review articles have demonstrated clearly that it never had any legal basis whatsoever. Any serious jury, reading the Fourteenth Amendment and the KKK Act, would typically get the law *right* when the judge got the law *wrong*, and that is why the ultimate power to determine the law rests in the hands of the jury, despite the claims of some judges.
The 9th amendment is perhaps the most extreme example of this. Natural rights, retained by the people -- who better to determine which of these exist than the consensus agreement of 12 random people? If someone's conviction would be an infringement on a 9th amendment right, the jury has every right to determine that, even if a judge doesn't want to think about it (as most judges do not want to).
Jury nullification is about the jury's right to read the Constitution and read the laws themselves, rather than cowering to "judge's instructions" which may be quite lawless and unconstitutional. That's what it's actually about.
Yes, Jury Nullification has been used for evil. But it's also been used for good, and I feel like you're missing that. You didn't include any historical cases where it has been used for good, such as when northerners refused to allow black slaves to be returned to slavery.
I think that, if you told juries about Jury Nullification, then they would probably free more just people then free unjust people. After all, the rich and powerful can already tell and bribe jurors about jury nullification, so I don't think that telling everyone would benefit the rich. That being said, I think telling jurors about Jury Nullification would cause defenses to be more focused on appealing to the Juror's emotions rather than the law, so it's probably a bad idea. Still, I disagree with your conclusion that Jury Nullification is primarily a force of evil.
That did happen, but it didn't happen very often. Whereas nullification by white juries in the South was so consistent that even prosecutors with some sympathy for the victims of Black violence often didn't bother to bring their cases. And when they did, they always lost.
Basically as a practical matter, what you get with jury nullification is vox populi in its crudest sense. Whatever extralegal result a particular community favors, that's what you get. And as I said, it opens the door to mob rule as well, because it takes away the only tool available ("I had an obligation to follow the law") that might allow a jury to actually do the right thing when it is unpopular in the community.
So even if there was some theoretical justification for letting 12 random citizens with no qualification decide what the law is, in practice, the game is never going to be worth the candle. And at any rate, jurors still CAN nullify if their hearts are really set on it; it's interesting that nobody seems to have any examples of modern juries exercising this power for good that would outweigh all the teenage girls R. Kelly sexually assaulted after his first jury nullified and he thought he could get away with anything.
There's been a measurable amount of jury nullification in cannabis cases -- we cannot know the juries' thinking, but it was probably "people have a 9th amendment right to carry a plant around, this law is unconstitutional" -- and I think the number of innocent people kept out of prison on those grounds is probably significant. Of course, it required that the social tide turn first: it still turned before the legislatures acted.
I actually can't think of another area of law with a lot of jury nullification outside the racist South, which does show how deranged the drug laws were... actually, I can. Environmental protestors have had a number of jury nullification cases, which reflects the general societal understanding that they were doing the right thing and basically were being prosecuted for *reporting* a crime which the prosecutor failed to prosecute.
The monopolization of prosecutions by DAs has left vast scope for corruption; independent grand juries, in the common law tradition, allowed anyone to bring a private prosecution, though it had to get past the grand jury's filter. Much direct action has been taken because the appointed and elected DAs won't prosecute major crimes which everyone knows about. (Again, the mere existence of private prosecutions like they have in the UK would largely prevent this problem.) When these same corrupt DAs then prosecute the people who are publicizing the crimes, you are likely to get jury nullification.
I wouldn't worry about mob rule, given that appointed judicial positions have been repeatedly stuffed with handpicked crooked hacks who sucked up to the right powerbroker, while elected judicial positions are pretty much random citizens who managed to get a crowd to support them. Are judges really any better than juries? In the racist South the judges were usually as bad as the juries; six of one and half a dozen of the other.
12 random citizens understand, and respect, the law better than Clarence Thomas or Amy Coney Barrett do -- and we all know it -- and it's time to stop pretending.
Jury nullification isn't supposed to be against the *law*. It's supposed to be against the *judges*.
We have plenty of judges who are corrupt enough that jury nullification would have helped. Donna Scott Davenport. Michael Conahan. Mark Ciavarella. Look them up if you've forgotten. It's no coincidence that they avoided having juries in their corrupt cases.
The history of the jury is one of not trusting judges. People looking at the 1960s-1990s might not understand why. I think people looking today would understand why.
I did find this positive Jury Nullification case, though it's obviously less major than a rapist being freed: https://www.bbc.co.uk/news/uk-england-london-56853979
Anyways, I get the feeling that positive cases of nullification would get a lot less news coverage then negative ones, because news readers like being outraged. It's hard to say how jury nullification is used without some hard data (which I imagine would be really hard to find).
Also, I wasn't aware of nullification was used far more often in the south, but I totally believe it. I learned something new today.
Final thought: Now that I've thought on this issue more...I think my support of jury nullification stems from the fact that I feel that it is significantly more likely for a jury wish to acquit a guilty person for an unjust law, rather than a jury acquitting an innocent person for committing a crime. Just think of the thousands, if not hundreds of thousands of people who have been arrested for having tiny amounts of weed. Those people's lives would have been improved if Jury Nullification was known about by the Jurors. Meanwhile, how often do jurors really want to make an innocent person go to jail? Yes, there were obviously racists over 100 years ago who were racist. But I think that, in the present day, it's much less likely for an entire jury to do this. And yes, I know that historical precedent doesn't support my claim. However, I think that we could live in a world where people are more likely to use jury nullification for good rather than evil.
One thing to remember is that the nullifiers won't necessarily have the same criteria for nullification as you would. When the War on Drugs was in its heyday, plenty of juries wanted to (and did) stick it to drug users and low level dealers.
And of course, there's still racism in the system even now. Which drug possessor is more likely to get sympathy from a typical jury- the white kid whose well paid lawyers cleverly get it into evidence that a prison sentence will interfere with his college admission, or the poor Black kid who was in a street gang for awhile and almost flunked out of school?
Depends. Did the poor Black kid get *a jury of his peers*, in other words, nothing but other poor Black kids?
This has been a major problem in the US for a long time. Due to the legal and social fiction that we are all peers, nobody is ever tried by a jury of their peers. But there's a reason "jury of their peers" was the common-law standard, and you articulated it quite clearly.
Now, let's ask the question differently: who's going to get more sympathy from a typical judge, who is rich and went to law school -- the white kid whose well-paid lawyers go to the same social club as the judge, or the black kid who has assigned counsel?
I rest my case.
Jury nullification, as I understood it, was never about rejecting the law or the Constitution.
It was about declaring the right of the jury to interpret the law or the Constitution. And the jury has always had the right under common law to interpret the law. This is baked into the Bill of Rights.
Judges often get the law wrong in incredibly blatant and corrupt ways. We all know that "qualified immunity" is made-up shit; law review articles have demonstrated clearly that it never had any legal basis whatsoever. Any serious jury, reading the Fourteenth Amendment and the KKK Act, would typically get the law *right* when the judge got the law *wrong*, and that is why the ultimate power to determine the law rests in the hands of the jury, despite the claims of some judges.
The 9th amendment is perhaps the most extreme example of this. Natural rights, retained by the people -- who better to determine which of these exist than the consensus agreement of 12 random people? If someone's conviction would be an infringement on a 9th amendment right, the jury has every right to determine that, even if a judge doesn't want to think about it (as most judges do not want to).
Jury nullification is about the jury's right to read the Constitution and read the laws themselves, rather than cowering to "judge's instructions" which may be quite lawless and unconstitutional. That's what it's actually about.