Will South Dakota Free the Jury?

I often agree with my friend psychologist Dennis Fox’s politics, but I have serious concerns about the position he takes in favor of ‘jury nullification’ in this article, my misgivings about which I reveal at the risk of appearing too anti-populist and surprise myself with a degree of concern about undermining the rule of law that would have worried me a decade ago. Essentially, the ‘fully informed jury’ movement asserts that juries have the power to find a defendant not guilty even if the evidence supports their guilt, i.e. to “nullify” the law. From this perspective, judge’s instructions to juries that they must make their decision “based on the evidence” are flawed, and defense attorneys cannot “fully inform” the members of the jury that they can acquit regardless of the evidence. Indeed, jurors who believe in the nullification principle will be screened out during jury selection

Fox cites some seemingly plausible reasons for acquitting someone who is clearly guilty:

Bob Newland, the South Dakota Libertarian Party’s candidate for attorney general, and other Amendment A advocates in Common Sense Justice for South Dakota give several examples: parents convicted of child pornography for taking bathtub photos of their toddlers; a man convicted of cruelty to animals for fighting off a vicious dog with a cane; a quadriplegic convicted of marijuana possession for toking to relieve post-surgery muscle spasms. Amendment A would force judges to let defendants like these tell the jury something like this: “I did it, but you’re allowed to go with your gut regardless of legal technicalities. You don’t have to send me to prison. You can let me go home.”

He has an interest in seeing jury nullification put into practice in a number of situations, including “eliminating punishments for marijuana use, consensual adult-sex offenses, hunting and fishing violations, and other victimless crimes tolerated or even committed by large portions of the population”. Jury nullification would stimulate juries to act as the “conscience of the community”, e.g. in acquitting mercy killers. He would also like to see jurors “realize that motives for political action are relevant despite judicial lies to the contrary”, e.g. when protesters are arrested for ” trespassing and other violations incidental to their political agenda.” Here he’s coming dangerously close to undermining one of the central tenets of civil disobedience, essentially that ‘if you can’t do the time, don’t do the crime.’ The inherent value in acts of conscience of dramatizating one’s political convictions is vastly diminished, if not mooted entirely, if there’s no risk of conviction.

Fox also cites the government’s perpetual war on victimless drug crimes and Ashcroft’s assault on our rights since 9-11 as reasons to insure that juries know they can “just say ‘no'”. He characterizes (at least some) opponents of the FIJA notion as “apoplectic” and caricatures their fears as being about “chaos in the courtroom.” He only addresses concerns about acknowledged “sorry examples” of potential abuse of the jury nullification principle —

…(U)ndeniably, jurors have not always used wisely their power to apply the law flexibly. In past decades, juries have sometimes freed white supremacists who lynched African Americans, men who beat their wives, and others whose aggression was too widely supported

— to dismiss them as “hav(ing) receded in time”.

Dennis, wake up and smell the rat here. Despite all sorts of wonderful empathetic and conscientious ways a fully nformed jury could act, it is hardly true that the threat of potential abuse of the practice is a thing of the past. Most of the challenge to the rule of law comes from the Far Right, and it has been my impression — apoplectic or not — that the jury nullification principle is being driven largely by their agenda. [What else should we make of the fact that the most hopeful of many historical efforts to allow “fully informed” juries is taking place in South Dakota rather than a more progressive jurisdiction? It verges dangerously close to the crackpot conspiracy theory flavor of the Left to suggest that there is a secret covenant between all judges nationwide to deny juries a right under law.] Open this Pandora’s box and all you will see is America’s famous brand of bigots and hatemongers tried —when they are, rarely, brought to trial— by likeminded, homogeneous “juries of their peers” with the right to ignore the illegality of the defendant’s actions because they are in accord with the beliefs that motivated that defendant. And even if I have my own qualms about the legitimacy of our government, I share nothing with those whose invalidation is based on its being a Zionist Occupation Government or a tool of the UN-driven One World Government.

So should I oppose jury nullification merely because I believe the situations where it will be used will be predominantly, overwhelmingly, in support of reactionary and regressive aims? No more than Fox should naively support it because he forsees the principle as having populist or progressive utility. No, at the risk of being elitist, this will not solve the inherent problem — the risk of mob rule under the guarantee of trial by a jury of one’s peers. Rights entail responsibilities, and I think the obligation to judge someone on the weight of the evidence is a good one. Of course, I also think that, on the weight of the evidence, no one would have voted for George Bush, so call me hopelessly deluded… And call me apoplectic, but when the laws are unjust, there are other avenues besides jury nullification that will make the law the conscience of the people, without, yes, chaos in the courtroom.

Addendum: Ed Fitzgerald wrote to make a cogent point — “…Suffice it to say this: jury nullification exists.” It is not evident because jury deliberations are secret, except when obviously guilty suspects walk; and, although defense attorneys are not allowed to mention it explicitly, they are savvy enough to play to juries’ possible impulse to nullify. The system just buries its head in the sand and pretends it doesn’t happen.

I certainly agree with Ed. I remember the realization I had one night during gradeschool, while watching some cops’n’robbers show on television, that the message of that and every TV show that the wrongdoers are always caught and that ‘crime doesn’t pay’ were convenient social fictions being passed off as realities to bolster the rule of law. Certainly, the idea that the legal system always makes conscientious and true decisions is another of those convenient fictions being foisted upon us. (Its consequences include among others the fable that the system precludes the execution of the innocent, which is necessary to pursue capital punishment.) And one version of that is that trial by a jury of one’s peers will always, consistently, across the nation, result in justice being done fairly. The impulse is that it is not in our interests to acknowledge the contrary.

Fitzgerald goes on:

“My solution is somewhat different. Allow lawyers to argue for nullification, and inform the jury that they have the power to nullify, but include strict instructions from the judge as to where and when nullification is an appropriate response. Give them the examples from history, point out that nullification is only cceptable when the jury perceives a higher moral duty than to uphold the law as it is, tell them that they shouldn’t consider nullification simply because it’s unpleasant to otherwise return a verdict, or out of sympathy for a defendant. In other words, I suggest that since nullification will happen (because it cannot be prevented), bring it out in the open and attempt to control it the same way everything else in the courtroom is controlled, through the rulings and instructions of the judge.”

So, unlike Fox, legitimize ‘fully informing the jury’ not because it is such an empowering thing to do, but because it teaches us that the ’emperor has no clothes’ — that rule of law rather than of sentiment and prejudice is a fiction — and perhaps holds out the possibility of keeping a necessary evil in check?

Dennis Fox replies:

I’m glad to see your long comment on my jury nullification piece,

along with Ed Fitzgerald’s excerpts. His solution isn’t a bad one,

and is probably what would happen if Amendment A passes. The defense

lawyer would tell jurors they can think for themselves, and the

prosecutor and judge would tell them they can’t.

Historically, in cases like Southern juries unwilling to convict

supremacists, and 1800s Utah juries unwilling to convict polygamists,

the feds have stepped in and brought defendants into federal court,

where they had more control over the jury pool. In other cases, we’ve

just lived with the consequences, not always unhappily. In Kentucky,

for example, at least in the 1980s, it was just about impossible to

find a jury willing to convict on marijuana charges — pot was the

state’s largest cash crop.

In any case, like most choices this one brings both positives and

negatives. It seems to me the fallback position should be that people

on juries should be given accurate information about what they can

and can’t do. I’m not sure how someone can argue reasonably that the

system works better when people are lied to. Yet I had a student once

who was thrown out of the jury pool as soon as she told the judge she

was taking a course in psychology and law (this at a time when

lawyers and even judges were getting put on juries).

If you’re interested, I have a longer article about jury

nullification, the ninth amendment, and the difference between law

and equity, wrapped up in anarchist context, at


, published in

Behavioral Sciences and the Law in 1993. I have other article also

focused on the law and legal fictions and the like.

Your point about civil disobedience also interests me. There’s always

been a debate about whether punishment for CD is necessary to make it

valid or whether it’s just a good PR tool. I’d have to check on this,

but I don’t think Martin Luther King, Jr. pleaded guilty every time

he got busted…

In any case, the law itself recognizes that jurors can sometimes let

people off. Jury nullification is the indirect route. There’s a more

direct route, the necessity defense, in which defendants claim they

did the act but had no choice — the harm they sought to prevent was

more important than the law they broke. This is what got Amy Carter

and Abby Hoffman off after anti-CIA protests at Amherst years ago,

and Sam Lovejoy for knocking down that nuke weather tower — they

jury accepted their arguments and found them not guilty. Tactically,

it seems to me more useful to stay out of prison to fight again

another day than get locked up for taking a moral stand. But this

probably brings us back to one of the battles between Clamshell

Alliance and CDAS…

[As you’ll surmise, I was a Clamshell, and of the persuasion to get locked up — over and over again — for taking a moral stand… — FmH]