Please help us improve our site! No thank you. Jury Nullification Primary tabs A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness. If the jury cannot unanimously agree on a verdict of either Guilty or Not Guilty, this is known as a hung jury.
When further deliberation clearly will be unproductive, the judge will declare a mistrial. The prosecution may or may not retry the case in the future, but the law has at least been nullified in the trial at hand. Of 27 potential jurors questioned during voir dire, only five said they would vote to convict a person of possession of such a small amount of marijuana. When these kinds of rejections of enforcement of laws stack up over time, the laws become unenforceable.
Eventually, it is no longer worth the time or hassle or embarrassment for government officials to try to enforce these laws. They may be further nullified in a sense either remaining on the books but not being enforced or being repealed altogether.
Likewise, in cases involving fugitive slaves: When people were prosecuted for trying to help a slave escape, those folks were prosecuted. And in the North, the jurors would nullify. More recently, in places like the District of Columbia, where 30 years ago consensual gay sex was a crime called sodomy, when people prosecuted for that quote-unquote crime, jurors rightly thought that was a silly law.
So even if the defendant was guilty, the jurors would say not guilty. GL: In your Washington Post op-ed, you focus on the racial justice angle.
How has jury nullification been used for that? PB: I learned about jury nullification when I was a rookie prosecutor in the District of Columbia, doing drug cases. This was in the s, when there were jury trials for even drug possession offenses.
And I was warned by the experienced prosecutors that there would be cases involving nonviolent drug offenses in which no matter what my evidence was or no matter how good my trial skills were, the jury would acquit. And the reason they would is because they didn't want to send another young black man to jail or prison.
This was at a time when most of the jurors in the District of Columbia were African American. When I started trying cases, that was exactly what happened. I knew the defendant was guilty, and the jurors would have to know it, too. But in nonviolent drug cases, they would frequently find the defendant not guilty.
So when I left the prosecutor's office and became a professor, [jury nullification] was the first thing I wanted to research.
That's when I learned that what the jurors were doing was not only legal, that it had been a powerful instrument of change, including changes in racial issues.
In this article that was published in the Yale Law Journal , I wanted to recommend ways that jurors could make this practice more strategic so that it might have more political impact. Jurors often are following their own conscience and their sense of morality, as well as doing cost-benefit analysis — they ask themselves whether their community would be better off with this young, nonviolent offender in prison or returned to the community.
Again, they made all of these decisions as personal. They didn't know necessarily that this power to nullify might be employed in a more strategic way. So in the Washington Post article , as well as other writings I've done in the 20 years since I wrote that first jury nullification article [in the Yale Law Journal ], I recommended that jurors might use this power to send a message to lawmakers and police and prosecutors that business as usual, when it comes to the way our communities are over-policed and prosecuted, is no longer acceptable.
When we see [jury nullification] in communities with large populations of people of color — so I'm thinking of the District of Columbia, Baltimore, the Bronx, and Oakland, California — prosecutors in those places have to be much more careful about the cases that they bring. Because if it's a low-level drug case, and the jurors are much less likely to convict, I think that leads to prosecutors bringing fewer of those cases.
In the Post article, I wanted to update the theory for the Black Lives Matter movement and to think about the concerns of police, especially the ways that they are excessively violent or disproportionately violent in communities of color. And to let jurors know that if they have concerns about the ways that police are acting in those cases, that a way to signal those concerns is by nullification.
I don't think that outside of nonviolent crimes, nullification is typically something that jurors consider, because jurors have good sense. So if they think it's someone likely to cause serious physical harm, then they're better off with that person not being on the street. But if it's a nonviolent offender, and it's a case in which people are selectively prosecuted, with drug crimes being the prime example of that, then I think jurors should consider nullification.
PB: If you go to criminal court in Washington, DC, today, right now, you would think that white people do not commit crimes. About 95 percent of the people who are sent for crimes in that court are African Americans, even though African Americans are only about 50 percent of the population of the District.
And that's true in cities all over the country with African Americans and Latinos basically being the subjects of crime and punishment. That doesn't mean white people don't commit crimes. It just means that they don't get the same attention, and their criminal conduct does not get the same attention as people of color. Sometimes people ask what would happen to the African-American community if it wasn't policed and prosecuted the way that it is now. And the answer to that is to look at the white community.
It's not like white folks don't commit crimes; it's just that when they do, they don't receive the same attention, and I think the white community is doing doing okay with its minimal levels of policing and prosecuting.
And I think that would also be true of communities of color. GL: You mentioned jurors should be much more strategic. What is some of the specific advice you would give jurors so they are more strategic? PB: One sense is that when jurors nullify, they think of it as subversive.
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