Resolved: Resolved: In the United States criminal justice system,
jury nullification ought to be used in the face of perceived injustice.
November-December 2015 LD Brief*
*Published by Victory Briefs, PO Box 803338 #40503, Chicago, IL 60680-3338. Edited by Jake Nebel
and Chris Theis. Written by Jacob Nails, Marshall Thompson, and Paul Storm. Evidence cut by Rebecca Kuang and Jacob Nails. For customer support, please email [email protected] or call
330.333.2283.
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Contents
1
Topic Analysis by Jacob Nails
11
1.1
Resolutional Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
1.1.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
1.1.2
Jury Nullification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Affirmative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
1.2.1
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
1.2.2
Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
1.2.3
Specific Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Negative Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
1.3.1
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
1.3.2
Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
1.3.3
Specific Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
1.2
1.3
1.4
2
Strategic Philosophical Casing by Marshall Thompson
22
2.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
2.2
Opening the Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
2.3
Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
2.3.1
Epistemic Sources of Authority . . . . . . . . . . . . . . . . . . . . . . .
24
2.3.2
Hierarchical Sources of Authority . . . . . . . . . . . . . . . . . . . . .
26
2.4
Beyond Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
2.5
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
3
A Legal Perspective by Paul Storm
31
4
Definitions
38
4.0.1
Perceived Injustice Definition . . . . . . . . . . . . . . . . . . . . . . . .
38
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
Perceived injustice is distinct from deprivation or frustration; it focuses
on what ought to happen, not just what is expected . . . . . .
38
2
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Contents
4.0.2
Jury Nullification Definition . . . . . . . . . . . . . . . . . . . . . . . .
39
Legal Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39
Legal definition of jury nullification: . . . . . . . . . . . . . . . . . . . .
39
Exceptional Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39
Jury nullification only occurs in exceptional circumstances . . . . . . . .
39
Narrow Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
Disagreements about meaning or application of the law do not count as
jury nullification . . . . . . . . . . . . . . . . . . . . . . . . .
40
Broad Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
Nullification includes cases where the jury believes the law is wrongly
4.1
4.2
applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
4.0.3
Black’s Law Dictionary: . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
4.0.4
Jury nullification is the right of the jury to be told by the judge that they
may refuse to apply the law to the defendant. . . . . . . . . . . . . . . .
41
Categories of Jury Nullification . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
4.1.1
Jury nullification can be in response to unlawful government behavior. .
42
4.1.2
Jury nullification can be a response to unjust laws. . . . . . . . . . . . . .
42
4.1.3
Jury nullification can be a response to inappropriate application of the law. 42
T - “Should” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2.1
The resolution could be a question of whether juries should have the
power to nullify, or if they should be told of their power to nullify. . . . .
5
43
Aff
43
44
5.0.1
Key to Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44
Solves Exceptions to the Rule . . . . . . . . . . . . . . . . . . . . . . . .
44
Laws do not apply in every single case, and jury nullification helps accounts for exceptions to the rule . . . . . . . . . . . . . . . . .
44
Solves Overly Literal Readings . . . . . . . . . . . . . . . . . . . . . . .
45
Jury nullification upholds rule of law by avoiding overly literal applications of statute . . . . . . . . . . . . . . . . . . . . . . . . . .
45
Solves State Abuses of Power . . . . . . . . . . . . . . . . . . . . . . . .
46
Jury nullification upholds rule of law by preventing official abuses of power 46
Solves Unjust Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47
Nullifying unjust laws is consistent with the rule of law . . . . . . . . . .
47
Solves Unjust Application of Law . . . . . . . . . . . . . . . . . . . . . .
48
Nullification checks unjust application of the law . . . . . . . . . . . . .
48
3
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Contents
5.0.2
AT: No Democratic Accountability . . . . . . . . . . . . . . . . . . . . .
49
Nullification doesn’t undermine democratic accountability for 4 reasons .
49
Key to Democratic Accountability . . . . . . . . . . . . . . . . . . . . .
51
Jury nullification is a key principle of democracy . . . . . . . . . . . . .
51
Moral Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
Juries have a moral duty to nullify laws they believe are unjust even if they
might be wrong . . . . . . . . . . . . . . . . . . . . . . . . . .
52
AT: Crime is Always Wrong . . . . . . . . . . . . . . . . . . . . . . . . .
53
Many illegal actions are morally blameless . . . . . . . . . . . . . . . . .
53
Nonmaleficence Justifies Nullification . . . . . . . . . . . . . . . . . . .
54
There is a duty not to cause undeserved harms which justifies jury nullification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
54
AT: Duty Not to Lie (Perjury) . . . . . . . . . . . . . . . . . . . . . . . .
55
The juror’s oath is not ethically binding . . . . . . . . . . . . . . . . . .
55
AT: Bad Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . .
57
Broader negative ramifications of nullification should be considered irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57
AT: Activism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57
Activism alone is not a substitute for jury nullification . . . . . . . . . .
57
AT: Hurts Juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
58
Emotional turmoil for juries does not outweigh the harm of unjust con5.0.3
viction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
58
Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59
Solves Prosecutorial Discretion . . . . . . . . . . . . . . . . . . . . . . .
59
Prosecutors are just as prone to abuse of power, and nullification is a key
limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59
Solves Overcriminalization . . . . . . . . . . . . . . . . . . . . . . . . .
60
Jury nullification prevents overcriminalization . . . . . . . . . . . . . . .
60
Solves State Corruption . . . . . . . . . . . . . . . . . . . . . . . . . . .
61
Nullification is an important form of activism against bureaucracy and
corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . .
61
Empirical Examples Prove Solvency . . . . . . . . . . . . . . . . . . . .
63
Empirical examples prove nullification is effective . . . . . . . . . . . . .
63
AT: False convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
63
Jury nullification is not the same as false convictions . . . . . . . . . . .
63
4
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Contents
5.0.4
Race-Based Nullification . . . . . . . . . . . . . . . . . . . . . . . . . .
64
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
Jury nullification is key to protect black communities from racial bias in
prison sentencing . . . . . . . . . . . . . . . . . . . . . . . . .
64
Rule of Law Fails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
65
Jury nullification challenges the myth of rule of law . . . . . . . . . . . .
65
Consistent with Rule of Law . . . . . . . . . . . . . . . . . . . . . . . .
66
Race-based nullification upholds the rule of law by challenging racially
5.0.5
biased applications . . . . . . . . . . . . . . . . . . . . . . . .
66
AT: Negative Examples . . . . . . . . . . . . . . . . . . . . . . . . . . .
67
Nullification is a legitimate tool, even if there are negative examples . . .
67
AT: Justifies Violent Crime . . . . . . . . . . . . . . . . . . . . . . . . .
68
Juries can make exceptions for violent or harmful crimes . . . . . . . . .
68
AT: Just Deserts/Retribution . . . . . . . . . . . . . . . . . . . . . . . .
68
Retribution does not apply in cases of racial disparity . . . . . . . . . . .
68
AT: Backlash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
69
Race-based jury nullification wouldn’t cause backlash . . . . . . . . . . .
69
LGBT Nullification . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
70
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
70
Nullification is an important form of resistance against anti-LGBT criminal justice policies . . . . . . . . . . . . . . . . . . . . . . . .
70
CJS Represses LGBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
The justice system has historically repressed queer people, and legal reform has failed . . . . . . . . . . . . . . . . . . . . . . . . . .
71
Prison Represses LGBT . . . . . . . . . . . . . . . . . . . . . . . . . . .
73
Queer people face severe physical and sexual violence in prison . . . . .
73
Nullification Solves Prison Violence . . . . . . . . . . . . . . . . . . . .
74
Nullification can reduce the number of queer people unjustly imprisoned
74
Radical Activism is Key . . . . . . . . . . . . . . . . . . . . . . . . . . .
75
Only radical use of jury nullification can challenge the anti-queer prison
system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
75
Nullification is Effective . . . . . . . . . . . . . . . . . . . . . . . . . . .
76
Jury nullification is an effective tool for combatting heterosexism in the
5.0.6
legal system . . . . . . . . . . . . . . . . . . . . . . . . . . . .
76
AT: Unjust Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
77
AT: Misuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
77
5
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Contents
Juries are unlikely to abuse nullification . . . . . . . . . . . . . . . . . .
77
Not Relevant to Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78
The fact that some jurors use nullification unjustly has no bearing on what
a just juror ought to do . . . . . . . . . . . . . . . . . . . . . .
78
AT: Racist Juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79
Historical examples of racism show problems with the juries, not with
5.0.7
nullification . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79
Neg Doesn’t Solve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80
Alternatives to nullification would not reduce the risk of bias . . . . . . .
80
Only as a Last Resort . . . . . . . . . . . . . . . . . . . . . . . . . . . .
81
Nullification is only used in cases of last resort where it is necessary . . .
81
AT: Lawlessness/Anarchy . . . . . . . . . . . . . . . . . . . . . . . . . .
82
AT: Lawlessness (General) . . . . . . . . . . . . . . . . . . . . . . . . .
82
Even the worst abuses of nullification don’t cause lawlessness . . . . . . .
82
Solves Lawlessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
82
Jury discretion reduces lawlessness by fostering trust in the law . . . . .
82
Not Unique to Juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
83
Jury nullification is no more lawless than every other aspect of the justice
5.1
5.2
system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
83
AT: Court Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . .
84
Court legitimacy is tenuous . . . . . . . . . . . . . . . . . . . . . . . . .
84
Aff Mechanisms of Implementation . . . . . . . . . . . . . . . . . . . . . . . . .
85
5.1.1
Courts can encourage or discourage nullification in various ways. . . . .
85
Inherency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
85
5.2.1
Since Sparf, trial judges have refused to inform juries about their power
of nullification and forbid counsel to raise the issue. . . . . . . . . . . . .
5.2.2
5.3
Virtually every court has held that defendants to not have a right to have
a jury told of its power to nullify. . . . . . . . . . . . . . . . . . . . . . .
85
Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
86
5.3.1
5.4
85
Jury nullification is an exercise of discretion in the administration of law
and justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
86
5.3.2
Jury nullification corrects the administration of the law. . . . . . . . . . .
86
5.3.3
Without discretion, the legal system becomes a mockery. . . . . . . . . .
87
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
87
5.4.1
Jury nullification is justified by the sixth amendment right to trial by jury.
87
5.4.2
Constitutional protections create a jury nullification power in three ways.
88
6
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Contents
5.4.3
5.5
The Framers intended to protect the right to jury nullification. . . . . . .
88
Check Against Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
5.5.1
5.6
structures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
Jury Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
5.6.1
Quantitative studies find that juries do function differently when given
nullification instructions. . . . . . . . . . . . . . . . . . . . . . . . . . .
89
Horowitz study methodology: . . . . . . . . . . . . . . . . . . . . . . .
90
LGBTQ Aff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
90
5.6.2
5.7
Jury nullification is a way for a community to challenge oppressive power
5.7.1
Jury nullification can be used to ameliorate the harm imposed by the
criminal legal system on the LGBTQ community. . . . . . . . . . . . . .
5.7.2
5.9
Impact- queer and transgender people are subject to violence and inequality in the criminal legal system. . . . . . . . . . . . . . . . . . . . .
91
5.7.3
Queer identities have become violently criminalized. . . . . . . . . . . .
91
5.7.4
Queer and allied jurors should follow a three-part system of strategic jury
nullification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
92
Queer abolitionist jurors should always nullify. . . . . . . . . . . . . . .
92
Political Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
93
5.8.1
Jury nullification is especially crucial for political trials. . . . . . . . . . .
93
Black Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
94
5.7.5
5.8
90
5.9.1
The black community is better off when some nonviolent lawbreakers
remain in the community rather than go to prison. . . . . . . . . . . . .
5.9.2
African Americans should embrace jury nullification as a way to resist
tyranny of the majority. . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.9.3
94
Impact- the black community suffers disproportionately from the racialized construction of crime. . . . . . . . . . . . . . . . . . . . . . . . . .
5.9.4
94
95
There should be a presumption in favor of nullification for nonviolent,
malum prohibitum offenses, and nullification should be considered for
nonviolent malum in se crimes. . . . . . . . . . . . . . . . . . . . . . . .
95
5.10 AT Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
96
5.10.1 The Rule of Law is a myth. . . . . . . . . . . . . . . . . . . . . . . . . .
96
5.11 AT “White People Will Nullify Too” . . . . . . . . . . . . . . . . . . . . . . . . .
96
5.11.1 Non-unique—white people already nullify in cases of white-on-black
crime, and this might be good for pragmatic political purposes. . . . . .
96
7
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Contents
6
Neg
98
6.0.1
Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
98
Rule of Law Good . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
98
Rule of law is necessary to account for differences in community morality
in a pluralistic society . . . . . . . . . . . . . . . . . . . . . .
98
Nullification Hurts Rule of Law . . . . . . . . . . . . . . . . . . . . . . .
99
Jury nullification promotes anarchy and undermines the law . . . . . . .
99
Tool for Extremism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Nullification is a tool for anti-government extremism . . . . . . . . . . . 100
No Democratic Accountability . . . . . . . . . . . . . . . . . . . . . . . 100
Juries are not democratically accountable . . . . . . . . . . . . . . . . . 100
AT: Aff Evidence (General) . . . . . . . . . . . . . . . . . . . . . . . . . 101
Their authors cherry-pick only positive examples and ignore the importance of consistency for rule of law . . . . . . . . . . . . . . . 101
AT: Prosecutorial Discretion . . . . . . . . . . . . . . . . . . . . . . . . 102
Jury nullification is not a substitute for prosecutorial discretion . . . . . 102
AT: Unjust Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
The morality of the particular law is not relevant to rule of law . . . . . . 103
AT: Brown 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Brown confuses rule of law with substantive moral disagreements . . . . 104
6.0.2
Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Harsher Judicial Restrictions . . . . . . . . . . . . . . . . . . . . . . . . 105
Nullification can backfire and causes judges to impose harsher restrictions on the defendant . . . . . . . . . . . . . . . . . . . . . . 105
Undermines Error-Correction . . . . . . . . . . . . . . . . . . . . . . . 105
Jury nullification causes errors by the jury to go unchecked . . . . . . . . 105
Error-Correction Outweighs . . . . . . . . . . . . . . . . . . . . . . . . 107
Error-correction impacts a larger scope of cases. It applies even when
juries don’t choose to nullify . . . . . . . . . . . . . . . . . . . 107
6.0.3
AT: Race-Based Nullification . . . . . . . . . . . . . . . . . . . . . . . . 107
Backlash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Race-based nullification backfires and causes backlash . . . . . . . . . . 107
Overly Pessimistic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Butler’s criticism of the legal system is oversimplified and overly negative 109
Not Radical Enough . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
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Contents
Butler doesn’t go far enough. Focusing only on non-violent crimes fails
to challenge the inherent racism of prisons. . . . . . . . . . . . 109
6.1
Ban on Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
6.1.1
The ban on government appeals proves the scope of the jury nullification
doctrine is large in a bad way. . . . . . . . . . . . . . . . . . . . . . . . . 110
6.2
Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
6.2.1
6.3
Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
6.3.1
6.4
The jury nullification system discourages guilty pleas. . . . . . . . . . . . 111
Equal Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
6.5.1
6.6
Nullification violates democratic principles. . . . . . . . . . . . . . . . . 111
Discouraging Guilty Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
6.4.1
6.5
A right to nullify is practically suspect. . . . . . . . . . . . . . . . . . . . 110
The right to nullify violates the right to equal justice. . . . . . . . . . . . 112
Fair Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
6.6.1
Jury nullification violates the principal that fair warning of prohibited
acts should precede punishment. . . . . . . . . . . . . . . . . . . . . . . 113
6.7
6.8
Inconsistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
6.7.1
The jury nullification doctrine leads to inconsistent verdicts. . . . . . . . 113
6.7.2
Nullification leads to inconsistent application of laws. . . . . . . . . . . . 114
Legislative Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
6.8.1
6.9
A right to nullify inhibits necessary legislative reform. . . . . . . . . . . 115
No Special Verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
6.9.1
The inability to ask the jury factual questions is directly traceable to the
nullification doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
6.10 Reconstruction-Era Oppression . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
6.10.1 Nullification was not only not inconsistent with the Fourteenth Amendment, it was intertwined with oppression during the Reconstruction era. 116
6.10.2 White jury nullification was a principal cause of Reconstruction injustice. 117
6.10.3 In the South, jury trials became mockeries of justice. . . . . . . . . . . . 117
6.10.4 Jury nullification allowed Ku Klux Klan members to commit perjury and
acquit each other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
6.11 AT Butler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
6.11.1 Butler’s proposal would be worse for the African-American community. . 118
6.11.2 Race-based decisionmaking by juries is a terrible idea. . . . . . . . . . . 119
6.11.3 Butler’s proposal only exacerbates race relations. . . . . . . . . . . . . . 119
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Contents
6.12 AT Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
6.12.1 There’s little evidence the framers cared very much about jury nullification. 120
6.12.2 The Bill of Rights also doesn’t say much about jury nullification. . . . . . 120
6.12.3 The Fourteenth Amendment framers found nullification inconsistent
with new constitutional rights. . . . . . . . . . . . . . . . . . . . . . . . 121
6.12.4 Nullification violates the Sixth Amendment. . . . . . . . . . . . . . . . . 121
6.13 Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
6.13.1 Trials should be an issue of rule of law, not rule of people. . . . . . . . . 121
6.13.2 Jury nullification turns juries into a law-making body. . . . . . . . . . . 122
6.14 AT Nullifying Drug Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
6.14.1 Race-based nullification is the wrong tool for the job. . . . . . . . . . . . 123
6.14.2 Repeated instances of nullification would not amend any drug laws. . . . 123
6.15 AT Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
6.15.1 Defendants should have a right to a trial free of jury nullification. . . . . 124
6.15.2 The Constitution holds that jury nullification need not be protected, only
tolerated when expedient. . . . . . . . . . . . . . . . . . . . . . . . . . . 125
6.16 AT Right to Nullify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
6.16.1 Jurors should not have a right to nullify. . . . . . . . . . . . . . . . . . . 125
6.17 AT Role of the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
6.17.1 This argument is too broad. . . . . . . . . . . . . . . . . . . . . . . . . . 126
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1.1 Resolutional Analysis
1.1.1 Introduction
The November/December 2015 rehashes a very similar topic from 5 years ago, the March/April
resolution of 2010 (Resolved: In the United States, the principle of jury nullification is a just check
on government). The arguments for and against jury nullification deal primarily with general
principles such as rule of law rather than specific current events, so many of the same arguments
that applied on the last instantiation of the topic will still apply on this go-round. One advantage
of the present topic, though, is that it resolves one of the primary ambiguities in the 2010 topic.
There are at least 2 central ethical questions surrounding jury nullification: first, to what extent the
government should allow nullification, and second, to what extent individuals serving on juries
should exercise nullification. Some authors recognize these two questions as closely inter-related.
Philosopher Michael Huemer, for instance, believes that deciding whether individuals should use
nullification has a strong impact on whether the government can legitimately forbid it:1
It seems to me that, once we recognize the moral duty in certain cases to disregard the
law, it is very difficult to maintain that public institutions ought to officially oppose
jury nullification. It is not incoherent, but it is very strange to hold that it ought to
be the official policy of the state–as in fact it presently is–to aggressively discourage
people from acting, in certain circumstances, in the only morally decent manner
available to them. To make it a rule to instruct jurors that they cannot do something
which they in fact not only can do but are often morally obligated to do seems, on its
face, a duplicitous and fundamentally unethical position.33
But Huemer’s view is not the only one in the literature, and many other authors recognize a distinction between what the individual is morally allowed to do on a jury panel and what a government
1Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley; PhD, Rutgers). “The Duty to Disregard
the Law.” Based on a 2012 lecture series. 2014. JDN. philpapers.org/archive/HUETDT.pdf
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should officially authorize. One might take the stance that jury nullification is wrong because it
subverts rule of law but nevertheless believe that the government should not formally prohibit it
because such prohibitions would be unenforceable or unconstitutional. Conversely, one might
believe that jury nullification is morally justifiable but still hold that governments should not officially discourage it so as to ensure it is used only in important cases. This latter argument is
explained by professor Darryl Brown:2
Our ambivalence about jury authority also works to encourage nullification only in
compelling cases. Juries are not told of their power to nullify; they may be told that
they must obey and apply the law given to them by the judge. Yet we reject any remedy (like judicial review) for nullification verdicts. We discourage nullification at the
same time we preserve it. Nullification is illicit yet strongly protected. This contradiction works as a strategic compromise: juries sometimes figure out their nullification
power and choose to use it, but their lack of explicit knowledge presumably serves
to encourage them to reserve it for the most serious cases. 97 In many of those cases,
nullification occurs within the rule of law, because the circumstances that prompt a
jury to go beyond its explicit instructions are often grave matters of justice arising
from a great disparity between the statute or its application and other sources of law
and social convention. These are damned good reasons, and reasons found within
acknowledged sources of law. Those cases are usually ones in which other institutions and officials have failed to uphold the rule of law, and the jury’s nullification
verdict is the last resort for correcting or condemning such breaches. Far from leading to anarchy, many nullification decisions arise in compelling circumstances that
convince twelve citizens, inclined to follow the law, unanimously to ignore literal
statute application. It likely signals failure of law either by other institutional players
or broadly within a society.
The last time this topic was debated in 2010, the divergence between the governmental and individual viewpoints on jury nullification led to a few muddled and ambiguous debates where one
side was talking about what a juror should do and the other was arguing about what the government should allow. This topic seems much more straightforward in that regard. It focuses on
what the individual juror ought to do. While a government can allow jury nullification, it’s not
clear how nullification can be “used” by any agent but the juror. And if the topic pertained to a
governmental policy, it is not entirely clear what that policy would be. Would the aff remove the
prohibitions some states have against judges informing juries of their right to nullify? Would the
2Darryl K. Brown (Assistant Professor, University of Dayton School of Law).
tion Within the Rule of Law.”
81 Minnesota Law Review, 1149 1996-1997.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
“Jury Nullifica(1997).
JDN.
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neg outright ban it (and if so, how would that be enforced)?
Political philosophy will still be relevant, but it would be more prudent for debaters to frame their
cases around the obligations of individuals as citizens participating in a political system rather
than around the obligations of governments.
1.1.2 Jury Nullification
The term “jury nullification” is relatively unambiguous and hopefully will not be the source of
too many definitional debates. Most definitions largely agree on what counts as jury nullification,
although there is some minor dispute as to just how widely it applies. Essentially every legal or
dictionary definition is in consensus that a jury nullifies when it rules a defendant Not Guilty even
though they believed that the defendant broke the law in question, which is the example at the
core of the jury nullification controversy, but not all dictionaries agree on whether nullification
incudes cases where the jury believes the law is being misinterpreted or misapplied.
Cases where the jury believes the law is wrongly applied are included under the umbrella of jury
nullification according to US Legal’s definition:3
Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its
belief that the defendant is guilty of the violation charged. The jury in effect nullifies
a law that it believes is either immoral or wrongly applied to the defendant whose
fate that are charged with deciding.
Brenner Fissell of the Georgetown University Law Center makes the case that this sort of definition is overly broad and offers a narrower interpretation of jury nullification:⁴
While some commentators disagree, jury nullification only really takes place when
intent and purpose, text, and instructions speak with one intelligible voice: there
must be agreement amongst these sources of “law,” and it must be understandable
by the jury. These requirements come from the definition of the word “nullification”
more generally: to nullify something is to “render [it] of no value, use, or efficacy; to
reduce to nothing, to cancel out.”3 If the three sources of law noted above are not in
alignment, then exercises of jury power that seem like nullifications may be nothing
more than attempts to more truly fulfill or flesh out that law—vague or ambiguous
text might be rejected out of a jury’s desire to execute legislative purpose or intent,
3US Legal. “Jury Nullification Law & Legal Definition.” No Date. JDN. http://definitions.uslegal.com/j/jurynullification/
⁴Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of law.” Legal Theory 19
(3):217-241 (2013). JDN. https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_Law
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and so on. In cases like these, where the exercise of jury power is interpretive or equitable, the law is not “cancelled out” but is itself read to have a different meaning.
Some commentators uncritically include these types of jury actions as instantiations
of “nullification,” but this is imprecise.4 Jury nullification reflects a different, more
rebellious disposition—it is when a jury consciously puts itself at odds with the clear
meaning of the text and the intentions and purposes behind it. The archaic definition of the verb captures this better: “To discredit, efface, or undermine.”5 When the
law’s intended meaning and application are clear (and the sources of the law speak
in agreement), a jury’s refusal to give it effect is properly called nullification—it unmistakably evinces the rebellious disposition noted above. This is possible in both
civil and criminal actions, and in both convictions and acquittals. However, most
people discuss the concept only in the case of criminal acquittals—this is the most
interesting type, as in this instance the jury’s decision is unreviewable.6 “Only when
the jury nullifies and acquits in a criminal trial does the jury’s act of nullification have
serious consequences: the judge cannot review the jury’s verdict and the defendant
is set free,” observes one commentator.7 Thus we limit our discussion here to this:
“Jury nullification, defined as a jury’s ability to acquit a criminal defendant despite
finding facts that leave no reasonable doubt about violation of a criminal statute.”8
Regardless, these disputes do not seem central to either affirmative or negative strategy, and debaters would be better off not taking a stance on murky matters as to which marginal cases are
included under jury nullification because the same main arguments will apply on both sides irrespective of where one draws the line.
1.2 Affirmative Arguments
1.2.1 General
The primary affirmative argument in the literature deals with the capacity for juries to act as a
check against unjust laws, and affirmative debaters will be able to conjure up some compelling
historical examples in which this argument seems very persuasive. One that appears commonly
in the literature is the case of fugitive slave laws. Many antebellum juries felt uncomfortable convicting fugitive slaves for running away – even though the defendants had in fact broken the law
in doing so – because they believed the law to be deeply unjust. Consequently, some chose to
nullify rather than convict. Another powerful historical example is the “Bloody Code,” according
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to professor Darryl Brown: ⁵
One might also put into this category the well documented pattern of eighteenth
century jury nullification in response to England’s “Bloody Code,” which mandated
capital punishment for a long list of crimes including nonviolent, property offenses.
Many defendants undoubtedly deserved conviction for, say, theft, but juries nullified
because death was an excessively harsh sentence.34 Juries looked beyond the text of
the criminal statute to the social context and result of a literal application to arrive at
such nullification verdicts.
1.2.2 Rule of Law
While rule of law is most likely to be used more commonly as a negative argument, there is ground
for the affirmative to argue that jury nullification upholds rule of law. Exactly what “rule of law”
entails is in dispute amongst legal scholars, with some favoring stricter standards for what counts
as violating rule of law. Debaters should be careful in choosing how they choose to frame the
meaning and importance of the rule of law because different legal scholars will have different
conceptions that may give more weight to one side of the topic.
On the affirmative, debaters will want to steer clear of legal positivist conceptions of the law or any
authors that argue that the letter of the law is more important than its moral merits. These highly
procedural views of the legal system will tend to be disposed against the idea of a jury ignoring
the law on the books even if they do it for what they perceive to be the right reasons.
For an alternative view, one author affirmative debaters can turn to is Ronald Dworkin, who defends a version of legal interpretivism. In general, the aff will want to argue that upholding the rule
of law doesn’t mean following the specific laws that are currently in place but rather upholding
the principle of law, which may mean challenging unjust laws if they are contrary to the moral
role of the legal system. This interpretation of rule of law tends to give a stronger grounds for
defending jury nullification, as Brown argues:⁶
[W]e can explain the nullification of fugitive slave law prosecutions within rule-oflaw terms.“9 This explanation can take a number of forms. For one, we could argue
the unjust statute was enacted by a deeply flawed governmental structure.2 ’ African
⁵Darryl K. Brown (Assistant Professor, University of Dayton School
tion Within the Rule of Law.”
81 Minnesota Law Review, 1149
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
⁶Darryl K. Brown (Assistant Professor, University of Dayton School
tion Within the Rule of Law.”
81 Minnesota Law Review, 1149
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
of Law).
1996-1997.
“Jury Nullifica(1997).
JDN.
of Law).
1996-1997.
“Jury Nullifica(1997).
JDN.
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Americans were denied the ability to vote and thus denied representation in the governmental bodies that enacted that law and carried out its administration. … Alternatively, in Dworkinian terms, we might identify such a statute as”internally compromised“126 and condemn it as unprincipled and inconsistent with the”underlying
commitment to [a] … more fundamental public conception of justice.” 127 The citizen’s, and particularly the juror’s, “[p]olitical obligation is then not just a matter of
obeying the discrete political decisions of the community one by one”128 in such
forms as the fugitive slave statute. Political obligation–even in the role of jurordemands instead “fidelity to a scheme of principle each citizen has a responsibility to
identify, ultimately for himself, as his community’s scheme.” 29 In Dworkin’s view,
laws “count as legal” only when they “follow from the principles of personal and
political morality the explicit decisions presuppose by way of justification.”
1.2.3 Specific Examples
While the broad wording of this resolution suggests that it is about the general principle of jury
nullification rather than a specific instance of perceived injustice, debaters may still find it helpful
to use examples of specific modern cases in order to help prove their broader point. Perhaps the
single most commonly cited example in the literature is Paul Butler’s defense of race-based jury
nullification, which he explains as follows:⁷
My thesis is that the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison. The decision as to what kind
of conduct by African-Americans ought to be punished is better made by AfricanAmericans themselves, based on the costs and benefits to their community, than
by the traditional criminal justice process, which is controlled by white lawmakers
and white law enforcers. Legally, the doctrine of jury nullification gives the power
to make this decision to African-American jurors who sit in judgment of AfricanAmerican defendants. Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to
emancipate some guilty black outlaws.
Butler does not suggest that juries need to categorically nullify in all cases with black defendants.
⁷Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially
Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). JDN.
http://kemetrise.sytes.net:8245/butler.pdf
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His position holds that nullification has value but that it must be weighed against the context and
the severity of the crime, and he rejects nullification as an approach to severe cases like murder:
In cases of violent malum in se crimes like murder, rape, and assault, jurors should
consider the case strictly on the evidence presented, and, if they have no reasonable
doubt that the defendant is guilty, they should convict. For nonviolent malum in se
crimes such as theft or perjury, nullification is an option that the juror should consider, although there should be no presumption in favor of it. A juror might vote for
acquittal, for example, when a poor woman steals from Tiffany’s, but not when the
same woman steals from her next-door neighbor. Finally, in cases involving nonviolent, malum prohibitum offenses, including “victimless” crimes like narcotics offenses, there should be a presumption in favor of nullification. This approach seeks
to incorporate the most persuasive arguments of both the racial critics and the law enforcement enthusiasts. If my model is faithfully executed, fewer black people would
go to prison; to that extent, the proposal ameliorates one of the most severe consequences of law enforcement in the African-American community. At the same time,
the proposal, by punishing violent offenses and certain others, preserves any protection against harmful conduct that the law may offer potential victims. If the experienced prosecutors at the U.S. Attorney’s Office are correct, some violent offenders
currently receive the benefit of jury nullification, doubtless from a misguided, if wellintentioned, attempt by racial critics to make a political point. Under my proposal,
violent lawbreakers would go to prison.
Some people do hold more radical “abolitionist” views and do take the position that prison is never
a legitimate solution to crime. One example is Adrien Leavitt who argues that in the context of
jury nullification, an abolitionist approach to prison is the best solution to the violence that nonheterosexual people face in prison:⁸
[Q]ueer jurors who are prison abolitionists can use jury nullification to effect transformative change. Simply put, queer abolitionist jurors should always nullify. In this
application, jury nullification becomes a highly effective tool to subvert the racist, homophobic, transphobic, violent, and unjust criminal legal system. While this conception of jury nullification is more expansive than Butler’s—and therefore may exceed
the logic used by him to show that black jury nullification is morally permissible—
abolition-based queer jury nullification is nonetheless morally justifiable. In fact,
⁸Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People.” Seattle Journal for Social Justice
Volume 10, Issue 2, Article 2. April 2012. JDN. http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/
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abolition-based queer jury nullification furthers Butler’s primary goal of reducing
the burden of imprisonment on vulnerable communities. Indeed, as highlighted
previously, the collateral consequences of imprisoning queer and trans people are
intolerably severe and can only be remedied by the abolishing the prison system and
replacing it with a more humane and healing method of addressing antisocial behavior.258 Like black jury nullification, queer jury nullification is morally justifiable due
to the continuing and systematic failure of the democratic system in the United States
to protect queer people, typified by the criminalization of queer identities. Queer
people and their sympathizers should not be morally obligated to enforce a system
that perpetrates violence on them and members of their community.
1.3 Negative Arguments
1.3.1 General
While the affirmative will want to pick the strongest examples of jury nullification, the negative
should do precisely the opposite. Many negative arguments rest on the idea of a misguided or
malicious jury overruling legitimate laws to impose their own vision of justice. Concrete examples can help to strengthen this point. Far and away, the most common example referenced by
scholars of jury nullification is the civil rights era Southern juries who refused to convict white
defendants of hate crimes against African Americans even if the evidence proved them guilty beyond a reasonable doubt. Cases like these where jury nullification went awry paint a less rosy
picture than the fugitive slave example. Solely looking at the positive instances of jury nullification can obscure the more general problems with the lack of consistency or fairness in the process,
which Brenner Fissell criticizes as “cherry-picking,”⁹
While the commentators present us with an intuitively palatable example of a substantive nullification… they are cherry-picking out of a constellation of generally
problematic cases. … [A]n essential feature of the rule of law is uniform or consistent application. As Finnis writes, “[T]hose people who have authority to . . .
apply the rules in an official capacity . . . [must] actually administer the law consistently and in accordance with its tenor.”89 The importance of this feature cannot be
overstated: the need for consistency is one of the primary reasons that law itself is
instituted, whether it be for the purpose of settling contentious disputes or deciding
⁹Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of law.” Legal Theory 19
(3):217-241 (2013). JDN. https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_Law
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1 Topic Analysis by Jacob Nails
between neutral alternatives (as in coordination problems).90
1.3.2 Rule of Law
Fissell’s argument also ties into one of the primary negative positions on this topic, which is the
violation of rule of law. While the affirmative section discusses the possibilities for an AC structured around the rule of law, there is also an abundance of negative ground on this area of the
topic. Many critics of jury nullification deride it as a form of lawlessness or “anarchy” where the
jury vaunts their own personal moral scruples above the agreed-upon procedures of the legal system, which can form the basis for a negative case. The thesis of this negative position would be
that the general obligation to follow the law should trump one’s own personal moral judgment
about a matter.
Much like the affirmative rule of law arguments, this case could be bolstered or hindered by how
the debaters frame the rule of law in the round. The negative will want a more procedural account
of the legal system that values the process of agreeing to and sticking to a set of rules and laws
as being more important than analyzing the moral basis for those laws. The negative may argue
that the burden of creating laws and changing laws when they are unjust lies with democratically
elected legislatures, and an individual who chooses to enforce their own notion of the law in a
court room rather than through voting or petitioning their local congress member is upsetting
the principles of democracy that our legal system is founded on. Professor Orin Kerr explains
this contention in the context of jury nullification:1⁰
You might think of juries as a representative of “the People” and therefore assume
they are democratically accountable. But note that in criminal cases, the law normally requires juries to be unanimous in order to render a guilty verdict. It takes only
a single juror to block a conviction. The evidence can be overwhelming, and eleven
of the jurors can believe fervently that a particular case is the most compelling prosecution ever brought. But a single juror, accountable to no one, can put the kibosh on
the case based on his own vision of justice that may have no connection to anyone
else’s. We don’t normally think of placing all the power in one unelected person who
answers to no one as a democratically accountable approach.
When framed in terms of the justice of the procedure, the negative’s arguments about rule of law
are more defensible against affirmative responses. An aff debater who merely points out that a
1⁰Orin Kerr (Fred C. Stevenson Research Professor at The George Washington University Law
School).
“The problem with jury nullification.”
The Washington Post.
10 August 2015.
JDN.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/10/the-problem-with-jury-nullification/
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1 Topic Analysis by Jacob Nails
certain law is widely perceived as unjust would not have done enough work to prove that it is the
job of the jury to nullify that law. Brennan Fissell makes this point specifically with regards to the
conception of rule of law cited by professor Brown in the affirmative section above:11
Some accommodationists commit an error with respect to the first conclusion—they
mistakenly allow for the moral qualities of the law to be determinative in their ruleof-law analysis. This becomes clear when their responses to what I call the “inverse
scenario” are juxtaposed alongside their approbation of the paradigmatic case. That
is, they express disapproval when a just law is nullified by an unjust jury, but approval
when an unjust law is nullified by a just jury. How can they distinguish between
the two, though, without appealing to the moral qualities of the law—something
that we agree is extraneous? Brown discusses the “inverse scenario” in the context
of Southern juries’ refusal to convict white defendants accused of violence against
blacks, but his treatment is problematic.56 First, he attempts to avoid the question
posed above by framing the Southern juries’ actions as mere biased applications and
not substantive rejections, but this provides us with no real answers.57 When at last
confronted by the problem, Brown’s answer is frank but deeply unsatisfying: “The
question may be a close enough one, though, or that distinction slim enough, that the
difference is ultimately one of moral viewpoint or substantive principle: the southern
acquittals were illegitimate because they were racist, while the Slave Act or capital
crime acquittals were lawful because they were based on a moral commitment we
agree should inform our law.”58 Brown admits that the quality of the “morality” does
all of the delineating work. As we say above, though, a nullification’s moral quality
has no bearing on its comportment with the rule of law—the rule of law “says . . .
nothing about justice.”59
1.3.3 Specific Examples
Lastly, the negative also has ground to push back against the affirmative’s specific examples.
While the form of race-based jury nullification defended by Butler is widely cited approvingly
in pro-nullification literature, this is also one of its major drawbacks as its ubiquity amongst
nullification advocates has led to a number of strong responses from critics of nullification.
The most widely cited critic is Randall Kennedy of Harvard University (a former professor of
Paul Butler, when Butler attended Harvard), who criticizes Butler’s view of the legal system
as overly pessimistic. Reporter Lisa Gray cites some of Kennedy’s responses:ˆ [Lisa Gray
11Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of law.” Legal Theory 19
(3):217-241 (2013). JDN. https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_Law
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1 Topic Analysis by Jacob Nails
(Reporter). “Innocent Even if Proven Guilty.” Washington City Paper. 19 April 1996. JDN.
http://www.washingtoncitypaper.com/articles/10195/innocent-even-if-proven-guilty/]
Kennedy has no trouble reeling off a host of reasons why adoption of Butler’s ideas
would yield havoc. Butler, he says, wrongly dismisses the danger of “victimless”
crimes. “There’s a reason why people in communities cry out to get rid of drug dealers. Drug dealers make a community more vulnerable to people who will stick you up
or break into your house.” Kennedy, who is black, argues that Butler oversimplifies
matters of racial politics. “He portrays the criminal justice system as wholly the creature of white people. I’m not a great hawk when it comes to the war on crime; I think
there’s a strong argument for decriminalizing drugs. But we live in a democracy, and
there’s a strong sentiment for criminalization—and it’s not just among whites.” If laws
are racist, then Butler should attack the laws—not the legal system. Most seriously,
Kennedy charges, Butler denies a criminal’s responsibility for his act: “He makes it
seem as though crime is not really the criminal’s fault, that a person shouldn’t go to
jail. He doesn’t take into account that something distinguishes Person A, who is terribly disadvantaged but does not engage in drug dealing, from Person B, who is also
terribly disadvantaged and does. He becomes so deterministic that he annihilates
people’s ability to make choices in their lives.”
1.4 Conclusion
Both the affirmative and the negative have a wealth of historical examples and modern cases to
use in support of their respective arguments. A debater looking to be successful should be wellread on those cases. However, much of the clash on the upcoming resolution will also center on
more basic principles of whether the duty to rectify perceived injustice in a specific context should
override one’s general duty to uphold the law. Debaters who can successfully control this level of
the debate will be able to tilt the debate about more concrete cases strongly in their favor.
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2 Strategic Philosophical Casing by Marshall
Thompson
Marshall Thompson debated for four years at Walt Whitman High School. He qualified twice to the Tournament of Champions, and won major national tournaments,
including, the Greenhill and Bronx invitationals and the Montgomery Bell Academy
Round Robin. He specialized his senior year in philosophically oriented case positions, in particular nuanced application of Kantian and Social Contract theories. A
graduate from Wheaton college (majoring in philosophy) Marshall is now a PhD
student at Florida State University in the Philosophy Department.
2.1 Introduction
This topic analysis will examine the November-December 2015 Lincoln-Douglas debate topic
from the perspective of ‘strategic philosophical casing.’
This topic is awesome! Many of the best LD topics for philosophy debate are those that zero in
narrowly on a particular question of how citizens should relate to the government. This topic
focuses in, in that way, pulling on broad questions of political philosophy from ‘separation of
powers’ to the logic of representation.
This topic is also uniquely engaging. On many topics a single ethical theory (say deontology)
will fairly clearly affirm and another (say contractarianism) will fairly clearly negate, thus, the
debate comes down who wins the framework in a fairly straightforward, first-order sense. On
this topic, however, normative theories (deontology, utilitarianism, social contract etc.) do not
provide many straightforward deliverances concerning if you affirm or negate. Instead, you need
to embed those theories within a larger account of the proper role of government structures and
the relation that those have to citizens (and in particular juries).
Therefore, I am going to present this topic analysis a bit differently. Instead of spending most
of the time explaining particular affirmative and negative positions, instead I will try to embed
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2 Strategic Philosophical Casing by Marshall Thompson
those positions within a larger more dialogic discussion of some of the philosophical principle at
play on this resolution. I will present and define some of the major concepts and questions you
will want to think about and illustrate some of the ways that those accounts are relevant to an
understanding of jury nullification.
2.2 Opening the Debate
“Lex iniusta non est lex” –Augustine of Hippo, On Free Choice of the Will
The principle “an unjust law, is not a law” is a strongly intuitive starting point from which to begin
investigating the topic. It also seems to provide prima facie reason to affirm, because I, as a jury
member, cannot be bound to convict a person under a law I deem to be unjust. If the law is
unjust, then the law has no moral claim over me. If that is the case, then I am under no obligation
to conform my decisions to that law for instance sending a person to jail.
What does it mean for an unjust law to not be a law? A straightforward reading of that sentence is
mere nonsense, “a comfy chair is not a chair,” “an acute triangle is not a triangle,” etc. Obviously,
in order for something to be an unjust law, it must be both unjust and be a law. The sentence thus
plays on the difference between a ‘positive law’ (what happens to be established in a society as
legal and illegal) and a normative law (what prescribes what actions a person should or should
not take).
Thus, Thomas Aquinas glosses as follows: “As Augustine says (De Lib. Arb. i, 5) ‘that which is
not just seems to be no law at all’: wherefore the force of a law depends on the extent of its justice.
Now in human affairs a thing is said to be just, from being right, according to the rule of reason.
But the first rule of reason is the law of nature, as is clear from what has been stated above (91, 2,
ad 2). Consequently every human law has just so much of the nature of law, as it is derived from
the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a
perversion of law.” 1
2.3 Authority
OK, so there is a difference between the ‘law on the books’ and what we are obligated to do. But if
that is correct, then why bother to say ‘an unjust law is not a law’ why not just say ‘no positive law is
1Thomas Aquinas (Perhaps the greatest of all medieval philosophers, worked to reconcile the Christian faith with
robust Aristotelian philosophy). Summa Theologica: Complete and Unabridged Kindle Edition. Part I-II Question
95 Article 2.
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2 Strategic Philosophical Casing by Marshall Thompson
a moral law’ and be done with it? This brings us to the question of ‘authority.’ Authority is defined
as the “moral power of one agent (emphasizing especially the state) to morally require or forbid
actions by others through commands.” 2 When someone has authority over you, it means that
they can make something that was once moral to do, immoral in virtue of that command (and
possibly vice versa). Thus, normally it is morally permissible for you to talk to your friend, but
intuitively we think that your teacher has the authority to make it immoral to talk to your friend
by ‘commanding’ you not to talk during class. In the classroom, your teacher is an authority figure
and thus can issue commands to obligate you in ways your otherwise free. Likewise, parents have
authority over their children, implying that parents have a moral power to change their child’s
own moral landscape in various limited ways.
2.3.1 Epistemic Sources of Authority
There are two primary ways to understand the question of authority. One model, which I will call
the epistemic model, holds that certain agents have authority over you in virtue of their epistemic
privilege. If your doctor tells you to take x pill, then you really ought to take it. This does not mean
your doctor telling you to do so makes x pill good for you. The pill was always good for you, but
you now have better reason to think it is good for you with the doctor’s pronouncement. A doctor
is better situated epistemically to make that judgement. This reasoning is standard moral reasoning in lot of ways. I believe that the bible is a good moral authority, not because the bible ‘makes
things right or wrong’ but because the bible is a more accurate source of moral determination
than my own reasoning is.
If we apply the epistemic model to the question of law it essentially argues that an individual jury
member is not as well situated to assess if a particular law should, or should not be nullified. You
would rightly be suspicious of a friend who was told to do X, Y or Z by a doctor, but who decided
after some of their own research to do something entirely different. It is possible that your friend
has good reasons for their choice, however, you also believe that your friend is not nearly as well
situated as a doctor is to make that judgement. Even if a jury member perceives injustice, believes
they have good reason for thinking a law is unjust, they may still lack the epistemic privilege
necessary to make that judgement authoritatively.
There are two different ways to develop this sort of contention for the negative. One is to argue that
democratic legislative processes are uniquely well situated to make decisions. Many have argued
for the advantage of democratic decision making precisely for its epistemic advantages. David
2Estlund, David M.. Democratic Authority : A Philosophical Framework. Princeton, NJ, USA: Princeton University
Press, 2009
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2 Strategic Philosophical Casing by Marshall Thompson
Estlund, cited above, is one of the foremost advocates of that project. The Stanford Encyclopedia
of Philosophy also provides a succinct description of some the broader arguments:
“Epistemologically, democracy is thought to be the best decision-making method
on the grounds that it is generally more reliable in helping participants discover the
right decisions. Since democracy brings a lot of people into the process of decision
making, it can take advantage of many sources of information and critical assessment of laws and policies. Democratic decision-making tends to be more informed
than other forms about the interests of citizens and the causal mechanisms necessary to advance those interests. Furthermore, the broad based discussion typical of
democracy enhances the critical assessment of the different moral ideas that guide
decision-makers.” 3
Rather than focusing on how great democracies are at making decisions, one could instead object
to the epistemic adequacy of jury members as an alternative. There are two discreet ways to do
this. The first is a direct criticism of the jury’s ability to reach correct decisions about what should
and should not be law:
But there is another, more practical reason why juries should refrain from engaging
in policymaking through their nullification power: not only are juries fundamentally undemocratic institutions, they are ill-suited to be making public policy in the
first place. When a jury refuses to find a defendant guilty of violating a particular
law, even though the facts presented at trial clearly indicate his guilt, it is saying, in
effect, that it rejects the legislative policy choice embodied in the law. Such a policy
choice is the product of a multitude of considerations, including concerns about the
law’s moral implications, its political feasibility, and the social and economic consequences it is expected to have. Compared to legislators, however, jurors in criminal
trials lack the time, training, experience, and information needed to evaluate these
types of concerns adequately. It seems likely, therefore, that, once informed of their
power to “judge” the law, jurors simply will vote their sympathies or prejudices, while
paying little attention to how the policy choices implicit in their verdicts impact the
administration of the criminal justice system as a whole. ⁴
Even if jury members were well equipped with the skills to evaluate policy, there is the added
worry that they lack the resources to do so. Juries, for good reason, are not supposed to seek
3Christiano, Tom, “Democracy”, The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), Edward N.
Zalta (ed.), http://plato.stanford.edu/archives/spr2015/entries/democracy/.
⁴Warshawsky, Steven. Opposing Jury Nullification: Law, Policy, and Prosecutorial Strategy. Copyright (c) 1996
Georgetown Law Journal. November, 1996.
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2 Strategic Philosophical Casing by Marshall Thompson
outside information about the case, nor discuss questions of the case with outsides. Given those
limitations, even policy experts on a jury panel, will be poorly situated to reach an adequate solution concerning proper policy.
A second, though more complicated, account of the epistemic inadequacy of juries concerns their
‘public justifiability.’ Take the example of Wanda. God, in his manifold and great mercies, has
decided to communicate with Wanda concerning what policies are right and wrong. Wanda thus
knows with certainty what policies should and should not be passed. Suppose Wanda also was
so situated so as to make the law whatever she wants. Is it legitimate for Wanda to change all
the laws so that they are not optimal? It would certainly result in better laws, but there seems to
be an objection to the sort of epistemic access that Wanda has. Even if it is true that Wanda can
communicate with God, there is no public access by which to test that knowledge. There is not,
for instance, any ability to debate with Wanda about the policies because she just knows what is
right and wrong, not why it is right and wrong.
It seems, even if Wanda is epistemically privileged, the private nature of that privilege renders it
illegitimate as a basis for policy decisions. The same is true in the case of jury nullification. The
jury is closed, so if the jury all agree that a law is unjust there is no way to publically engage with
their reasoning. The victim of the crime has no ability to argue or contest the reasoning of the
jury in publically accessible spaces. Thus, the advantage to democratic legislation is not merely
that it helps to get the right decision, but also that the mechanisms that get the right decision has
a certain publically accessible character (this argument is also developed far more thoroughly in
Estlund’s book on democratic authority in his criticism of ‘epistocracy’).
2.3.2 Hierarchical Sources of Authority
Beyond epistemic basis for political authority, there are also arguments that certain structures of
decision making have a unique authority in regulating society (as by laws). Not just anyone gets
to enforce laws. Even if I have excellent reason to think that eating meat is morally wrong and bad
for society (which it is) that does not seem to legitimate me in arresting people and locking them
in my basement for eating meat. What are some necessary conditions of Hierarchical Authority
and what bearing do they have on Jury nullification?
There are many cases in which we think that even good laws might be illegitimate to enforce.
Suppose the government secretly passes a law against a certain type of pollution, but tells nobody.
It would seem as though prosecuting individuals under that law would be illegitimate. This can
be explained in either of two ways. A) legal decisions should be publically accessible or B) legal
decisions should be predictably applied. I need to know what the legal ramifications of my acts
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2 Strategic Philosophical Casing by Marshall Thompson
are. These principles though seem potential undermined by jury nullification.
In addition to these constitutional infirmities, citizens would be faced with an inability to predict what will and will not be considered criminal behavior. Such a process
would violate the notice component of the due process guarantee. Of course, the
jury would only be given the opportunity to render a verdict on a particular criminal offense if there were sufficient evidence of legal guilt for the judge to send the jury
into deliberations, rather than merely granting a motion for acquittal. But as demonstrated above, it would still be possible for jurors to determine among themselves
that the defendant is legally not guilty and yet, by nullifying, return a guilty verdict.
Notice to the citizen—ever the potential defendant—would be minimal: She will
need to avoid not only taking those actions that are culpable, but also doing all those
things that would suggest culpability sufficient for a judge to allow the jury to decide.
Although such an effect might appear de minimis, in fact, it could have a substantial
chilling effect even on nonculpable activities: A citizen fearful that she might someday have her case sent before a jury will need to avoid activities that, though legal,
would prejudice a jury against her. Both the ex post facto/bill of attainder and vagueness problems clearly inhere in the “blanket nullification” proposal. They also exist,
though somewhat less obviously, in the “defendant-optional” and “unidirectional
nullification” proposals. In the defendant-optional proposal, the defendant has the
option of informing the jury (through counsel) of its power to nullify. At first blush,
the defendant’s decision to so inform the jury might be seen as a waiver of any constitutional rights thus forgone. However, it seems plausible that the defendant would
still have two arguments that would potentially allow her to overcome the waiver
barrier. First, she could argue that the harm was not necessarily caused by her counsel’s informing the jurors; whether or not her attorney had done so, there would be a
substantial likelihood that the jurors would know that such arguments were permissible in the state and thus would have assumed that they had such a power. Indeed,
jurors might even see failure to make such an argument as an unseemly strategic
maneuver. Second, she could argue that the harm done—in terms of vagueness—
occurred before the jurors were given instructions or even empaneled. The harm
came in the form of giving the defendant insufficient legal notice of the culpability
of her actions, and thus had nothing to do with the decision of whether or not to
inform the jurors of their power to nullify. This argument underscores the danger
(and incoherence) of making positive, statutory law while simultaneously giving jurors a power to nullify it. The latter argument might be made even by the defendant
in a jurisdiction that utilizes unidirectional nullification instructions. Even though
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2 Strategic Philosophical Casing by Marshall Thompson
the jury would be given the option only of departing from the statutory law in the
defendant’s favor, the defendant may argue that she suffered a harm in the form of
vague notice well before trial. When the legislature states that juries shall have the
power to grant exceptions to the application of any criminal law, the legislature has
functionally written an open-ended and fuzzy exception into the statute books that
are supposed to provide all citizens with effective notice; such a jury is given a wide
(though not unbounded) field of discretion in which to formulate the law.168 While
jury “mercy” might sound like a laudable goal, when it is enacted, it disturbs the
baseline of criminality that allows for meaningful notice. ⁵
Another potential feature of legitimate legislative operations that juries lack is ‘representation’. We
generally think that the legislative process should represent those being legislated upon, juries
are not effective at doing that. They are far too small a sample size to represent a cross section of
the citizenry, juries are carefully chosen by lawyers in the interest of favorable results, juries lack
any accountability mechanism (no need to stay in office), and are fundamentally minoritarian
by frequently requiring consensus giving a single outlier veto power against the rest of society’s
capacity to institute justice.
This section started with the intuition that it is wrong to punish someone based on an unjust
law, and sought to evaluate the ways that one could be subject to a law even that they personally
perceived to be unjust. I want to now start where the last section ended, and try to move beyond
the idea that first order representation is the best way to understand democratic legitimacy.
2.4 Beyond Representation
There is a strong intuition that representation is an excellent way to structure a government, but
when push comes to shove it is not always super clear that straightforward representation maintains so many of the virtues as is supposed.
One reason for thinking that representation is important, is that it means that we adopt those
laws that people actually pick for themselves. But there is something profoundly odd about representation in this respect. Suppose the president wins 60% of the vote, they become 100% the
president for the next four years. Now why is that? Because the majority wins in a democracy,
thus, the majority always carries the day. This may not strike you as odd, until you consider the
question, why not have the 60% majority only be in control of 60% of the laws.
⁵St. John, Richard. License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking.
The Yale Law Journal, Vol. 106, No. 8, Symposium: Group Conflict and the Constitution: Race, Sexuality, and
Religion (Jun., 1997)
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2 Strategic Philosophical Casing by Marshall Thompson
This problem looms larger as you consider the disaggregated nature of decision making. On any
question there is likely far more than two options. In a winner take all system, you have reason to
jump to the system closest to yours that is most likely to win, but this is not because it is representative of your opinions but because it is how you have to play the game. This brings up a distinction
between first order and second order diversity. First order diversity is when the government
structures are composed of representative proportions. Thus, if the US is 60% democratic then
60% of congresspersons or so should be democrats. Second order diversity argues that instead
government decisions or structures should be representative proportions. Thus, a 60% majority
should end up making about 60% of decisions. Large decision making bodies that make universal
decisions cannot be second order, thus, permanently silencing minority governance. A switch to
small scale disaggregated decision making instead represents second order diversity. A jury will
side with the majority most of the time, but it will be minority governed a significant amount
of the time. If an adequate account of representation needs to move beyond first order diversity
it might provide a good reason why second order structures should be able to nullify first order
judgements.
This Article begins to sketch that affirmative account by developing a competing notion of diversity, one tailored to the unique structural features of juries, districts, and
other small, disaggregated institutions. The analysis runs as follows. There are at least
four reasons why we might value second-order diversity in some part of the democratic infrastructure. First, second-order diversity provides a strategy for allocating
power to electoral minorities that serves as a counterweight to the influence model
that otherwise dominates our system. It grants electoral minorities control over some
subset of decisions, allowing them to exert the type of power usually reserved for the
majority. It thus takes advantage of the disaggregated structure of these institutions
to diffuse power. Second, heterogeneity of this sort “turns the tables” on the majority.
It creates a distinct type of political space, one where members of the majority experience what it is like to be deprived of the comfort - and power - associated with their
majority status. And it is one where electoral minorities enjoy the dignity to decide,
where they are no longer confined to the role of dissenter or junior partner in every
decisionmaking process. By destabilizing conventional political dynamics, secondorder diversity offers individuals a wide array of “scripts” for defining their civic and
group identities. Third, second-order diversity provides a richer, more textured view
of the democratic order. If every decisionmaking body mirrored the population, as
with first-order diversity, we would expect the decisions rendered roughly to mirror the preferences of the median voter. By avoiding the push to the middle in every
case, heterogeneity among decisionmaking bodies reveals the views of the full demo-
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2 Strategic Philosophical Casing by Marshall Thompson
cratic spectrum. Second-order diversity not only makes electoral minorities visible,
it does so in a manner that showcases division and dissent within groups, providing
a kaleidoscope view of group difference. Fourth, second-order diversity allows us to
“cycle.” By varying the composition of decisionmaking bodies, second-order diversity allows us to take an experimental approach to designing decisionmaking institutions; it offers a feedback mechanism, providing additional information about how
and when people divide. Further, second-order diversity allows us to cycle our normative commitments and thus to avoid privileging a single theory of democracy or
identity over all others. And cycling allows us to vary our strategies for dealing with
group conflict; it ensures that members of opposing groups revisit a political conflict
in different contexts at different times. It thus avoids the problems associated with
freezing into place a particular solution to group division. ⁶
A similar argument against first order majoritarian representation comes from a growing scholarship defending the preferability of lottery based governance. There are all sorts of problems
with standard representation, whether its failures of responsiveness and good governance,⁷ issues of the wealthy dominating elections⁸, or cultural disenfranchisement (many groups even of
enfranchised voters simply do not turn out to the polls).
While I do not have the space to investigate these arguments in depth, there are two different
ways that they could be used to defend jury nullification. On the one hand, many of the critiques
of representative democracy might show that current laws are not actually legitimate, such that
it might frequently be wrong for a jury to convict. Second, a jury is often pointed to as the best
illustration of lottery based governance and so an expanded power of juries may well be valued
under Lottocratic systems.
2.5 Conclusion
This topic is awesome. I could easily spend far more time discussing independent questions of
political philosophy that have considerable bearing on the question of jury nullification. But, no
reason I should get to have all the fun.
⁶Gerken, Heather (big deal law prof at Yale). Second-Order Diversity. (2005) Faculty Scholarship Series. Paper 356.
http://digitalcommons.law.yale.edu/fss_papers/356
⁷Guerrero, Alexander. Against Elections: The Lottocratic Alternative. 2014 Wiley Periodicals, Inc. Philosophy &
Public Affairs 42, no. 2
⁸Newspaper, any of them
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3 A Legal Perspective by Paul Storm
Paul Storm was a Lincoln Douglas debater for Shanley High School in Fargo, ND
and a NFL All-American who placed 5th and 11th at the National Tournament, 2nd
at the Harvard Invitational and finished his career 11th All-Time in NFL points. He
transitioned to mock trial in college and also had the distinction of being elected by
his peers to speak at graduation. Mr. Storm went on to graduate from law school
with honors and presently serves as in-house counsel for a manufacturing company
in Minneapolis, MN.
RESOLVED: In the United States criminal justice system, jury nullification ought to be used in
the face of perceived injustice.
VOCABULARY1 AND MISC.: Jury Nullification; Matter of Fact; Matter of Law; Directed Verdict; Judgment Notwithstanding the Verdict (JNOV); Judgment as a Matter of Law (JMOL); Motion to Set Aside Judgment; Hung Jury; Natural Law; Neo Natural Law; Rashomon Effect; Special
Verdict Form; Kim Davis2; Dr. Jack Kevorkian; O.J. Simpson; the Chicago 8; Zacharias Massaoui;
the Unabomber; Roy Bryant and J.W. Milam; Billy Budd, Sailor by Herman Melville; Bushell’s
Case
MUST READ: The Collapse of the Criminal Justice System by William J. Stuntz3
A good place to begin⁴ examining this Resolution is with an algebraic expression of the rule-of1I must stress that some of these terms are exclusively used in the civil context and are NOT relevant to the criminal
law. It is nonetheless important that you learn them because the distinction between civil and criminal law may
not always be observed by your opponent and you react far better to mistakes when you don’t have a brief internal
panic attack that you failed to prepare adequately.
2Kim Davis is NOT an example of JN, but she embodies a spirit of personal convictions that maps well onto the
psychology of JN.
3ISBN 9780674051751. Stuntz is a leading authority. Here is the Hon. John Paul Stevens’ review of the book,
last accessed Oct. 7, 2015: http://www.nybooks.com/articles/archives/2011/nov/10/our-broken-system-criminaljustice/
⁴I’m skipping the normal introductory framing of the resolution (why you should care about the topic in the hereand-now) because you’re likely well-aware of the here-and-now significance of this resolution. Have you watched
the news in the last 3 months? And there’s probably some manner of framing narrative amongst the other author’s
materials. Please be aware that I’m a footnote fiend, that there will be useful nuggets down here, and that I promise
not to waste your time. Other than this footnote, that is.
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3 A Legal Perspective by Paul Storm
law⁵, slightly modified to reflect the territory of the Resolution:
The U.S. Criminal Law + Relevant Facts = Legal Outcome
This equation is the heart of American criminal justice. Forget for a moment what the criminal law
looks like in practice and instead focus on the hyper-idealized criminal law, which “requires that
laws be general, applicable to all citizens, and (with some exceptions) non-retroactive.”⁶ Much
like the equation/formula-balancing you have probably done in an algebra or chemistry class, the
hyper-idealized criminal law has an inevitable, knowable, definite, and concrete Legal Outcome
for every scenario tried before a court: either the law was broken, and the defendant must be
convicted, or it wasn’t, and the defendant must be acquitted. Rewriting our equation, then:
The Criminal Law + Relevant Facts = Conviction/Acquittal
So the idealized rule-of-law blueprint upon which U.S. criminal justice is purportedly built is
meant to guarantee a ruthlessly precise instrument of social control that consistently punishes
offenders, never convicts the innocent, and never overlooks an offense. It’s an Asimov-ian⁷, superintelligent overlord that sends chills down spines because “the idealized rule of law has very little
normative content: as scholars have noted, it even allows for many kinds of tyranny.”⁸
Now we take off the rose glasses and look at the state of Oz. Obviously, punishment is not consistent, the innocent sometimes go to prison for life sentences, and the criminal too-often evades
his/her just deserts.⁹ The criminal law, in practice, is a mess. “There is a . . . gap between
law-on-the-books, or formal law, and law-as-enforced.”1⁰ There are numerous reasons for this
lack of perfect 1:1 congruity between the book-law and the enforced-law. “Some law is always
or almost always enforced, some is never or almost never enforced, and some is sometimes enforced and sometimes not.”11 Further, “[t]here is a. . . gap between law-on-the-books and law⁵I am presuming readers are aware of the rule of law and that the American criminal justice system is a rule of law
system, notwithstanding all the short-comings of its operationalization, but here’s a reasonable run down of the issue: https://freedomhouse.org/report/todays-american-how-free/rule-law-criminal-justice-and-property-rightsfull-chapter Now certainly there are other ideas about what rule-of-law means, http://worldjusticeproject.org/whatrule-law, so do your diligence.
⁶David A. Hoffman and Kaimipono David Wenger, “Nullificatory Juries” 23, Accessed using Social Science Research Network (http://www.ssrn.com/en/). This paper is identified being in a forthcoming edition of the Wisconsin Law Review but was posted on September 25, 2003.
⁷Isaac Asimov’s “The Evitable Conflict” “The Naked Sun” and “The Robots of Dawn” are three short stories that all
explore the idea of humanity under the rule of artificial intelligence.
⁸David A. Hoffman and Kaimipono David Wenger, “Nullificatory Juries” 23. Tyrannical rule of law….probably
means Nazism and fascism generally are going to be bandied about more often than you’d maybe like.
⁹Sometimes this is written “just desserts” but that’s technically incorrect.
1⁰Edwards, Mark A., “Law and the Parameters of Acceptable Deviance,” Journal of Criminal Law & Criminology,
Vol. 97, p. 50, 2006, William Mitchell Legal Studies Research Paper No. 75. This article is also available on the
Social Science Research Network.
11Ibid at 50, citing Kenneth Culp Davis, Police Discretion 73 (1975). Some examples come to mind: The speed limit;
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3 A Legal Perspective by Paul Storm
as-behaved….Some law is always or almost always behaved, some is almost never behaved, and
some is sometimes behaved and sometimes not.”12 And then of course there’s the reality that
criminal trials are conducted with imperfect information: sometimes there is no direct witness,
sometimes evidence goes missing, sometimes human recollection is subject to the “Rashomon
Effect”13, and sometimes people lie.
These gaps in the law create the conditions for JN. In other words, JN wouldn’t happen but for our
criminal justice system’s bald inadequacies relative to its idealized rule-of-law blueprint. Keep
this in mind when constructing your arguments: JN is an inevitability of the American criminal
justice system. Indeed, it is arguable that JN is inherent to American criminal justice.1⁴ This is
a significant nuance when you’re debating an “ought” topic.1⁵ What meaning is there to arguing
in terms of “ought” if JN is an inevitable product of the criminal justice system’s structure? The
short answer is it will depend on the parameters debaters place on the “ought” of the Resolution.
Ok, ok, you’re all hankering for definitions, and authorities, and case examples. For now, your
working definition of JN is: a phenomenon in which a collection of previously unacquainted citizens fail to unanimously authorize the government’s desired exercise of coercive power against an
accused person, despite a clear legal necessity for granting such authorization. While I concede
that there are less wordy definitions out there, this definition is an effort to sterilize the loaded
language and disagreement in the academic conversation about JN so you can think about what
the sale of marijuana in states like Colorado and Washington; that time on Breaking Bad when Walt Jr. got ill into
the pool after having hard alcohol pushed on him by The One Who Knocks while Hank watched.
12Ibid note 10 at 50
13Rashomon is a wildly celebrated 88 min. b&w 1950 psych-thriller by Akira Kurosawa that explores, among other
things, the ability of humans to come to entirely different conclusions/interpretations about the significance of a
set of facts surrounding a murder and rape in the 12th Century. Articles you read about JN may reference it.
1⁴In one manifestation, this line of argumentation makes significance of the fact that the right to jury is the ONLY
right appearing in both the Bill of Rights and the text of the Constitution. Compare U.S. Const. art. III, § 2, cl. 3
(“The trial of all Crimes, except in Cases of Impeachment, shall be by Jury…”); with U.S. Const. amend. 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….”) and U.S. Const. amend VII (“…and no fact tried
by a jury shall be otherwise reexamined in any court of the United States. . . .”). This argument finds an advocate
in John Adams, who wrote in response to the question of how jurors should make decisions: “Every Man, of any
feeling or Conscience, will answer, no. It is not only his right, but his Duty, in that Case to find the Verdict according
to his own best Understanding, Judgment, and Conscience, tho in Direct opposition to the Direction of the Court .
. . . The English Law obliges no Man . . . to pin his faith on the sleeve of any mere Man.” See Carroll, Jenny E., “The
Jury’s Second Coming,” 100 Georgetown Law Journal 657 (2012) at fn 71(citing L.H. Butterfield, Ed., The Diary
and Autobiography of John Adams 5 (1961)). Another nice nugget from that footnote acknowledges that Adams’
vision of the jury was informed by a fear that judges “being few…might be easily corrupted; being commonly
rich and great, they might learn to despise the common people, and forget the feelings of humanity, and then the
subject’s liberty and security would be lost.” This line of argumentation would also be aided by a reading of United
States v. Polizzi, 549 F.Supp.2d 308, 413-20 (EDNY 2008) (describing Colonial America’s judicial instructions
on nullification, including the encouragement of nullification). See also Langbein, John H., The Origins of the
Adversary Criminal Trial 193 (2003) ISBN: 9780199258888 (describing early instances of nullification).
1⁵For more on the difficulties of “ought” questions posed in the face of inevitabilities, try Lisa Tessman’s book, Moral
Failure: On the Impossible Demands of Morality (2015) ISBN 9780199396146.
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3 A Legal Perspective by Paul Storm
it is that’s really going on behind the vocabulary. Consider Prof. Jenny E. Carrol, for example:
“Nullification itself is a charged word. [Jury Nullification] is perceived as an illegitimate act of
defiance – when a juror refuses to enforce a law[, the government perceives it as a] usurp[ation
of] the rightful power of traditional branches of government to construct and designate law.”1⁶
Additionally:
[n]ullificatory juries are rare beasts. As such they are typically defined negatively,
and criticized indirectly. Stated concerns about nullificatory juries (the “rule of law”
and efficiency) may mask [m]any other reasons why the practices are challenged.
Nullificatory juries are ancient remnants of a less civilized legal system, and, as such,
subject to almost constant retrenchment over the ensuing centuries. Nullificatory
juries rarely find explicit favor in elite eyes, and are sometimes seen as a necessary
evil, or even a relic that has outlived its origins.1⁷
Contrast this view with the Pro-JN camp. Pro-JN arguments frequently observe that Neg-JN arguments presume a “vision of the law, and the act of nullification, . . . premised on the assumption
that the juror’s exercise of the power to judge law is illegitimate or rogue.”1⁸ From there, the ProJN argument tends to describe JN as “not a subversion of government, but is itself the exercise of
a governmental function. The law is thus recast as a fluid source of authority that draws strength
both in its formal construction and in its less formalized application in individual cases.”1⁹ The
Pro-JN camp would be well served to read Apprendi v. New Jersey, 530 U.S. 466 (2000).
Three Worthwhile Considerations
This is an appropriate place to load you with some additional considerations. First, much of the
discussion of JN centers on different categories of JN which you need to understand are totally
fictional. A source may, for example, assert that JN occurred in a particular instance because
the jury disagreed with the legitimacy of a law, or because they wanted to send a message to
the government over the way they bungled a case2⁰, or because they thought the punishment
was too severe for the crime, or because racism was involved.21 Those are hunches. The reality is unknown- jurors are not required to justify their decisions. Special verdict forms are not
1⁶See Carroll, Jenny E., “The Jury’s Second Coming,” 100 Georgetown Law Journal 657 (2012) at 8.
1⁷David A. Hoffman and Kaimipono David Wenger, “Nullificatory Juries” 31.
1⁸Ibid at note 16.
1⁹Ibid.
2⁰See, e.g., Fukurai, Hiroshi, “Is the O.J. Simpson Verdict an Example of Jury Nullification? Jury Verdicts, Legal
Concepts, and Jury Performance in a Racially Sensitive Criminal Case” International Journal of Applied and Comparative Criminal Justice, 1998, 22:185-210.
21See, e.g., Butler, Paul “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” 105 Yale L.J.
677, 702 (1995).
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3 A Legal Perspective by Paul Storm
mandatory and are flatly disfavored.22 One juror may very well have thought the law illegitimate.
Another might have simply remained unconvinced of the prosecution’s case. JN seems to be the
label for instances where the judge and other legal commentators just can’t understand the failure to convict, but it’s not like the jury rose and in creepy unison declared “we the jury invoke
the ancient rite of nullification!” All that can be said with real confidence is that the jury didn’t
convict and we have an unprovable hunch as to why.23
Second, there is an ongoing battle about what it is that juries are supposed to be deciding. Sometimes the courts communicated to juries that they are free to decide all matters of law and fact.
Sometimes the jury is told it is only allowed to decide matters of fact. What makes the whole
thing even more difficult, however, is that there is no agreed-upon distinction between a matter
of fact and a matter of law.2⁴
Third, there’s a question lurking in this debate about who is truly overstepping their role in the JN
context. The power to govern comes from the public, or so one theory goes, and the American
tradition asserts that our government is of/by/for the people. So if the people reserved to themselves a right to jury2⁵ then who is the judiciary to comment on the misuse of that right when the
public rejects the judiciary’s preferred outcome? That’s the whole point: the public have reserved
a right to themselves to disagree and thereby regulate the government’s use of power.2⁶ Viewing
JN as a right like this might initially seem to mean the Affirmative has some sort of trump card
to play, but just because the right was once given, doesn’t mean it necessarily warrants the carte
blanche attitude that JN should be used in the face of every perceived injustice, or even most of
them. It might be the case that JN has no place in the modern world and the signaling for a larger
movement towards reform might be better achieved outside of the courtroom. JN has limited
consequences: a jury acquits a defendant, they do not rewrite the law for everyone else. In a
22See, e.g., U.S. v. Spock, 416 F.2d 165 (1st Cir., 1969).
23To clarify further, in order to have a trial by jury, the jury must necessarily be free to disagree with the judge. If they
were not free to disagree, then it wouldn’t be a true trial by jury, but instead would be a form of symbolic stamp of
the citizens endorsement of the judge’s conclusion.
2⁴See, e.g., Cook, Walter Wheeler, “Statements of Fact in Pleading Under the Codes,” 21 COLUM. L. REV. 416 (1921)
(arguing that the boundary between fact and law is not as clear as many areas of the
law presume); Lawson, Gary, “Proving the Law,” 86 NW. U. L. REV. 859, 863 (1992) (noting agreement among
legal theorists that “the law-fact distinction, whatever its utility, is purely a creature of convention”); Allen, Ronald
J., The Myth of the Law-Fact Distinction, 97 NW. U. L. REV. 1769, 1770 (2003) (explaining “the chaotic legal
landscape is that much of the effort to properly delineate matters as questions of law or fact is animated by the
belief that the two terms, ‘law’ and ‘fact’ specify different kinds of entities, that there is a qualitative or ontological
distinction between them. This belief is false.”).
2⁵What often gets lost in the discussion is that the right to a trial by jury is a right of the public as much as it is a right
of the accused. See Stimson, Shannon, The American Revolution in the Law: Anglo-American Jurisprudence
Before John Marshall 142-43 (Princeton University Press 1990).
2⁶Judge Learned Hand described the role of the jury as introducing “a slack into the enforcement of law, tempering its
rigor by the mollifying influence of current ethical conventions.” States ex rel. McCann v. Adams, 126 F.2d 774,
776 (2d Cir. 1942).
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3 A Legal Perspective by Paul Storm
country with over 350 million people, JN just might not do as much to spur enough people to
action than it may have had in the past when we were still a fledgling nation.
Last Item: Three Case Examples you MUST Know and a Weird Subset of JN that’s worth mentioning
1735 – Peter Zenger, a printer of New York’s Weekly Journal was charged with seditious libel2⁷
for publication of articles alleging that the colony’s royal governor had dismissed the chief justice
of the NY Supreme Court in retribution for the justice’s ruling against him in a personal equity
case. To the court, the fact that the articles contained factually accurate information was irrelevant: THE COURT INSTRUCTED THE JURY THAT TRUTH WAS NOT A DEFENSE TO THE
CRIME. In other words, as a matter of law, the judge found the printed articles to be seditious
libel and left the jury with the question of whether or not Mr. Peter Zenger published them. Considering that the articles were signed “Peter Zenger,” this was tantamount to a judge issuing a
directed verdict of guilty.
1851 – United States v. Morris, 26 Fed. Cas. 1323 (case no. 15,815) (C.C.D. Mass. 1851) Frederick
Jenkins, a former Virginia slave, was rescued from a forceful kidnapping attempt by a group of
abolitionists from Boston who were subsequently charged under the Fugitive Slave Laws, which
prohibited aiding, abetting, and assisting the escape of a fugitive slave. It was, again, a pretty open
and shut case in the eyes of the judge. The jury agreed it was open and shut, but in the exact
opposite direction: they acquitted the accused.
1995- OJ Simpson. This one is controversial, modern, and embedded so deep in American pop
culture memory that it’s just bound to show up in tournaments. The advocates of viewing this as
an instance of JN argue that the jury sent a message to the police for what was painted as obscenely
incompetent conduct by racist police officers. Hiroshi’s article is a good resource to familiarize
yourself with this one.
In the coming weeks there will be more information about the progression of the trials of the
police officers being tried for crimes related to the treatment of arrested African Americans. The
Freddie Gray case in Baltimore is particular important. There is a subset of JN in which a jury
CONVICTS despite a lack of adequate proof. Be aware and think about it further as the criminal
cases proceed for the police in the Gray matter. The public anger at police brutality is so grave
that there is at least a possibility that this form of Conviction JN becomes a larger conversation.
So this is where a snappy conclusion that wraps things up usually goes. I’ll leave you with one
thought: the book To Kill A Mockingbird by Harper Lee is sometimes referenced for a cute line
from Atticus Finch about court’s only being as sound as their juries and juries only as sound as the
2⁷In this case, seditious libel meant written censure of a public official.
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3 A Legal Perspective by Paul Storm
people who make it up. I recommend you not use the book considering that Harper Lee’s most
recent book, Go Set a Watchmen, has proven controversial, particularly with the characterization
of Atticus. Save yourself the headache of a distracted foray into whether Atticus should be a source
for quotations.
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4 Definitions
4.0.1 Perceived Injustice Definition
General
Perceived injustice is distinct from deprivation or frustration; it focuses on what ought to
happen, not just what is expected
Goldstein 12 J.H. Goldstein. “Sports violence.” Springer Science & Business Media, Dec 6, 2012.
Reprint of 1983 edition. Google Books. Definition of Perceived Injustice. Given the central role
of “perceived injustice” in our analysis, we shall in this section briefly discuss this concept and
distinguish it from some related constructs. Berkowitz has previously discussed two constructs
that overlap partially with perceived injustice. Expanding Dollard, Doob, Miller, Mowrer, and
Sears’ (1939) classic formulation, Berkowitz (1972) defines deprivation as a condition in which
a person “lacks a goal object people generally regard as attractive or desirable” (p. 79). Frustration is said to occur only when the person “had been anticipating the pleasure to be gotten from
this object and then cannot fulfill this expectation.” Thus frustration involves the blocking of
a goal, the deprivation of an expected or anticipated outcome (though it is unclear how strong
this expectation must be to produce deprivation). In other words, one compares one’s current
status with one’s expected status and, if this comparison is unfavorable, frustration occurs. The
experience of perceived injustice, in contrast, entails comparison with a standard other than simple expectancies. Perceived injustice involves a discrepancy between what one obtains and what
one “deserves” (Crosby, 1976), between one’s outcomes and one’s “entitlement” (Davis, 1959),
between the “is” and the “ought” (Gurr, 1970). Perceived injustice occurs when an individual
perceives a discrepancy between what happened and what “should have happened” according to
the “rules of fair play.” We assume that people hold standards of what ought to be, that in at least
some domains there is considerable social consensus about what should be (of. Alves & Rossi,
1978), and that when people’s standards of what should be are violated, action often results, with
aggression being one possible avenue of expression.
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4 Definitions
4.0.2 Jury Nullification Definition
Legal Definition
Legal definition of jury nullification:
Legal Information Institute, No Date Legal Information Institute. “Jury Nullification.” Cornell
University Law School. No date. https://www.law.cornell.edu/wex/jury_nullification
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.
Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury. It is
considered to be inconsistent with the jury’s duty to return a verdict based solely on the law and
the facts of the case. The jury does not have a right to nulification, and counsel is not permitted
to present the concept of jury nullification to the jury. However, jury verdicts of acquittal are
unassailable even where the verdict is inconsistent with the weight of the evidence and instruction
of the law.
Exceptional Cases
Jury nullification only occurs in exceptional circumstances
R v Latimer 1 R. v. Latimer, Robert William Latimer v. Her Majesty The Queen, 1 SCR 3, 2001
SCC 1 (CanLII), 18 January 2001, http://canlii.ca/t/523c
57 The term “jury nullification” refers to that rare situation where a jury knowingly chooses not
to apply the law and acquits a defendant regardless of the strength of the evidence against him.
Jury nullification is an unusual concept within the criminal law, since it effectively acknowledges
that it may occur that the jury elects in the rarest of cases not to apply the law. The explanation
seems to be that on some occasions, oppression will result either from a harsh law or from a harsh
application of a law. 58 This Court has referred to the jury’s power to nullify as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” and it has
characterized the jury nullification power as a “safety valve” for exceptional cases: R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 (“Morgentaler (1988)”), at pp. 78-79. At the same
time, however, Dickson C.J. warned that “recognizing this reality [that a jury may nullify] is a far
cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to
tell a jury that it has a right to do so” (emphasis in original).
39
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4 Definitions
Narrow Definition
Disagreements about meaning or application of the law do not count as jury nullification
Fissell 13 Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of
law.” Legal Theory 19 (3):217-241 (2013). https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_L
While some commentators disagree, jury nullification only really takes place when intent and purpose, text, and instructions speak with one intelligible voice: there must be agreement amongst
these sources of “law,” and it must be understandable by the jury. These requirements come from
the definition of the word “nullification” more generally: to nullify something is to “render [it] of
no value, use, or efficacy; to reduce to nothing, to cancel out.”3 If the three sources of law noted
above are not in alignment, then exercises of jury power that seem like nullifications may be nothing more than attempts to more truly fulfill or flesh out that law—vague or ambiguous text might
be rejected out of a jury’s desire to execute legislative purpose or intent, and so on. In cases like
these, where the exercise of jury power is interpretive or equitable, the law is not “cancelled out”
but is itself read to have a different meaning. Some commentators uncritically include these types
of jury actions as instantiations of “nullification,” but this is imprecise.4 Jury nullification reflects
a different, more rebellious disposition—it is when a jury consciously puts itself at odds with the
clear meaning of the text and the intentions and purposes behind it. The archaic definition of the
verb captures this better: “To discredit, efface, or undermine.”5 When the law’s intended meaning
and application are clear (and the sources of the law speak in agreement), a jury’s refusal to give
it effect is properly called nullification—it unmistakably evinces the rebellious disposition noted
above. This is possible in both civil and criminal actions, and in both convictions and acquittals.
However, most people discuss the concept only in the case of criminal acquittals—this is the most
interesting type, as in this instance the jury’s decision is unreviewable.6 “Only when the jury nullifies and acquits in a criminal trial does the jury’s act of nullification have serious consequences:
the judge cannot review the jury’s verdict and the defendant is set free,” observes one commentator.7 Thus we limit our discussion here to this: “Jury nullification, defined as a jury’s ability to
acquit a criminal defendant despite finding facts that leave no reasonable doubt about violation
of a criminal statute.”8
40
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4 Definitions
Broad Definition
Nullification includes cases where the jury believes the law is wrongly applied
US Legal, No Date US Legal.
“Jury Nullification Law & Legal Definition.”
No Date.
http://definitions.uslegal.com/j/jury-nullification/ Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation
charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to
the defendant whose fate that are charged with deciding.
4.0.3 Black’s Law Dictionary:
Aaron McKnight, [J.D., Reuben Clark Law School, BYU], “Jury Nullification as a Tool to Balance
the Demands of Law and Justice,” BYU Law Review, Vol. 1103, Issue 4, 2014.
There are many definitions or descriptions of jury nullification. For example, Black’s Law Dictionary defines jury nullification: 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.10
4.0.4 Jury nullification is the right of the jury to be told by the judge that they may
refuse to apply the law to the defendant.
Alan W. Scheflin, [Associate Professor of Law, Georgetown University Law Center], “Jury Nullification: The Right to Say No,” 45 S. Cal. L. Rev. (1972).
According to this doctrine, the jurors have the inherent right to set aside the instructions of the
judge and to reach a verdict of acquittal based upon their own consciences, and fhe defendant
has the right to have the jury so instructed. The jury nullification concept did not develop as a
pure question but instead was intermixed with other issues. Thus, some of the ensuing discussion
deals with the right of the jury to decide questions of law as well as of fact. This issue raises the
ques- tion of whether the jury can rule on the constitutionality of statutes. For the sake of clarity,
however, the jury nullification concept advocated here is the right of the jury to be told by the
judge that they may refuse to apply the law, as it is given to them by the judge, to the defendant if
in good conscience they believe that the defendant should be acquitted.2 This paper will examine
the nullification doctrine from its heyday during the 18th century to its non-recognition by courts
41
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4 Definitions
today. An argument advanced for the right of both the defendant and the jurors to the nullification
instruction will be grounded upon the role of the jury in a constitutional democracy.
4.1 Categories of Jury Nullification
4.1.1 Jury nullification can be in response to unlawful government behavior.
Aaron McKnight, [J.D., Reuben Clark Law School, BYU], “Jury Nullification as a Tool to Balance
the Demands of Law and Justice,” BYU Law Review, Vol. 1103, Issue 4, 2014.
In the first category of jury nullification—jury nullification in response to unlawful government
behavior—the government correctly and justly applies the law to a criminal defendant’s behavior.15 However, in the course of a criminal investigation or prosecution, the government commits
an objectionable offense, and the jury punishes the government by acquitting the defendant.16
Objectionable offenses could include, but are not limited to, perjured testimony or unreasonable
searches or seizures. 17 In this case, the jury makes a value judgment that the government’s inappropriate behavior was more reprehensible than the defendant’s.18 Thus, this category of jury
nullification acts like the exclusionary rule by allowing a guilty criminal to escape punishment to
discourage unacceptable governmental acts.19
4.1.2 Jury nullification can be a response to unjust laws.
Aaron McKnight, [J.D., Reuben Clark Law School, BYU], “Jury Nullification as a Tool to Balance
the Demands of Law and Justice,” BYU Law Review, Vol. 1103, Issue 4, 2014.
The second category of jury nullification—nullification in response to unjust laws—consists of
jury acquittals of a defendant who is otherwise guilty under a criminal statute because the jury
disagrees with content of the statute.20 In these cases, the jury reasons that the law is unjust.
Thus, the law should never apply under any circumstance. Prime examples of this category are
acquittals of abolitionists who were accused under the Fugitive Slave Act of 1850.21 More recent
examples include acquittals of defendants accused of violating Prohibition laws in the 1920s.22
In these examples, the juries acquitted simply because they did not agree with the law.
4.1.3 Jury nullification can be a response to inappropriate application of the law.
Aaron McKnight, [J.D., Reuben Clark Law School, BYU], “Jury Nullification as a Tool to Balance
the Demands of Law and Justice,” BYU Law Review, Vol. 1103, Issue 4, 2014.
42
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4 Definitions
In the third category of jury nullification—jury nullification in response to inappropriate application of the law—the jury acquits a technically guilty defendant because technical application
of the law seems unjust given the circumstances of the case.23 In these situations, the jury sees
no problem with the applicable criminal statute. Rather, the jury decides that the prosecutor is
unjustly applying the law.24 For example, a jury may think that the punishment is too severe to
fit a specific defendant’s behavior, such as when a defendant commits a petty theft but is subject
to a “threestrikes” law.25 Further, the jury may believe that the purpose of the law poorly fits the
circumstances of the case.26 For instance, a jury might acquit a parent who gives leftover pain
pills to an injured child for a temporary, harsh pain.27
4.2 T - “Should”
4.2.1 The resolution could be a question of whether juries should have the power to
nullify, or if they should be told of their power to nullify.
Julie Seaman, [Associate Professor of Law, Emory University] “Black Boxes: fMRI Detection and
the Role of the Jury,” Akron Law Review, Vol. 42, 2015.
As far as the doctrine of jury nullification, the Supreme Court settled the question more than 100
years ago by holding that a criminal jury has the power, but not the right, to acquit against the
law.20 This power is a byproduct of other features of the criminal justice system: the general verdict; the constitutional protection against double jeopardy; and the secrecy of jury deliberations.
Indeed, it is this secrecy plus the general verdict that create the black box quality of the jury process. Because of this well-settled paradox – that juries retain the power to nullify even though
they are not supposed to exercise it – the scholarly debate over jury nullification has largely revolved around the issue whether juries should be informed of this power. Scholars are divided
on the question, partly on normative grounds and partly on empirical grounds. The normative
issue is whether juries should have the power to decide the law if we could make them stop; the
empirical issue is whether, were juries told of their power to nullify, this would result in more of
the “bad” nullification.
43
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5 Aff
5.0.1 Key to Rule of Law
Solves Exceptions to the Rule
Laws do not apply in every single case, and jury nullification helps accounts for exceptions to
the rule
Wigmore 29 John Henry Wigmore (Professor at Keio University in Tokyo and dean of Northwestern Law School), “A Program for the Trial of a Jury,” 12 Am. JUD. SoC. 166 (1929).
Law and Justice are from time to time inevitably in conflict. That is because law is a general rule
(even the stated exceptions to the rules are general exceptions); while justice is the fairness of
this precise case under all its circumstances. And as a rule of law only takes account of broadly
typical conditions, and is aimed at average results, law and justice every so often do not coincide.
Everybody knows this, and can supply instances. But the trouble is that Law cannot concede
it. Law-the rule-must be enforced-the exact terms of the rule, justice or no justice. “All Persons
are Equal before the Law”; this solemn injunction, in large letters is painted on the wall over the
judge’s bench in every Italian court. So that the judge must apply the law as he finds it alike for all.
And not even the general exceptions that the law itself may concede will enable the judge to get
down to the justice of the particular case, in extreme instances. The whole basis of our general
confidence in the judge rests on our experience that we can rely on him for the law as it is. But, this
being so, the repeated instances of hardship and injustice that are bound to occur in the judge’s
rulings will in the long run injure that same public confidence in justice, and bring odium on the
law. We want justice, and we think we are going to get it through ‘the law’ and when we do not,
we blame the law. Now this is where the jury comes in. The jury, in the privacy of its retirement,
adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible
rules of law is avoided, and popular satisfaction is preserved. * 0 * That is what jury trial does. It
supplies that flexibility of legal rules which is essential to justice and popular contentment. And
that flexibility could never be given by judge trial. The judge (as in a chancery case) must write
out his opinion declaring the law and the findings of fact. He cannot in this public record deviate
44
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5 Aff
one jot from those requirements. The jury, and the secrecy of the jury room, are the indispensable
elements in popular justice.
Solves Overly Literal Readings
Jury nullification upholds rule of law by avoiding overly literal applications of statute
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
With the exception, then, of ostensibly rule-based approaches such as Scalia’s, the contemporary
reconception of the rule of law accepts that law application is inevitably a broadly interpretive task.
It is important for our purposes to keep in mind Dworkin’s conclusion that ordinary citizens, in
addition to highly trained judges, can (indeed, must) engage in this task. Citizens’ capability to
handle that task, after all, is a premise of the rule of law: citizens must be able to understand
what the law requires in order to structure their private behavior in accordance with it. Ordinary
citizens acting as jurors can and must do so as well. This contemporary understanding of the rule
of law opens the door for understanding how jury nullification can occur within the rule of law;
we might now describe such a verdict as principled, or lawful, nullification. Juries, like judges, and
like citizens making decisions on everyday courses of action, confront cases in which seemingly
literal or clear rule applications are not appropriate because in the context of the case they conflict
with other compelling norms, principles, or values. Rule application (even applications that Hart
might consider clear cases in the “core” of a rule)89 must still be reconciled with a widely shared
commitment to a “more fundamental public conception of justice,” and with “standards [that]
flow from the principles” implied in existing statutes, case law, and even social practice.90 In
Rawls’s conception, we check our general rule commitments against more intuitive “considered
judgments” about particular case outcomes, in an effort to assess whether general rules yield the
same results as those judgments. When they do not, we consider which needs adjustment, the
rule or the sense of justice about a particular case, and seek a “reflective equilibrium” between
them.91
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5 Aff
Solves State Abuses of Power
Jury nullification upholds rule of law by preventing official abuses of power
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
First, consider what may be the most difficult scenario to justify nullification: a case in which a
just law is justly applied to the defendant, but in the process of which public officials violate important laws. To animate the point, imagine a hypothetical case that resembles a recent real-life
verdict most Americans know all too much about: the 1995 acquittal of O.J. Simpson on murder
charges. To avoid the disputes about the actual facts of that case, let us say the evidence of guilt
about our hypothetical defendant is clear beyond all reasonable doubt. However, it is also clear to
the jury that the prosecution, through its police witnesses, has offered illegal evidence. Let us say
that one police witness was shown by other evidence to have lied under oath, thereby committing
perjury as well as impeaching his credibility. It is also clear that the police officers violated constitutional rules regulating searches and seizures, and thereby offered illegally obtained evidence as
well as perjured themselves to justify that illegal seizure.I 0 The rule of law, in this scenario, has
been breached long before the jury’s verdict: multiple instances of perjury as well as the unconstitutional search violate the rule of law. Furthermore, save for the jury, all mechanisms have failed
to correct that breach and punish its perpetrators. The state’s prosecutors have offered the perjured testimony and illegally seized evidence in court, when they had the discretion and duty not
to do so.1“1 If, as is likely, they knew of its illegal nature before court, they could have prevented
its use at trial. If they did not learn of the perjury until after it was offered, they could have sought
to strike the evidence from the record. Indeed, if the prosecutors knew of it before offering it,
they committed the additional crime of suborning perjury. Further, if a judge had decided in a
pre-trial hearing not to enforce the exclusionary rule against the illegally obtained evidence, that
would constitute an additional breach of the rule of law.102 Nullification here is consistent with
the rule of law; it might even be necessary for it.”°3 Under contemporary understandings of the
rule of law, a jury may-or must-reconcile literal application of the criminal statute with principles
and norms implicated in the case. Nullification here could be an act upholding the rule of law
by condemning the prior, official breach of the rule of law. The jury, drawing from popular sentiments shaped in part by constitutional law, may determine official lawlessness to be the graver
violation, perhaps on the reasoning that the rule of law serves foremost to set parameters of official behavior vis-a-vis spheres of individual liberty that were violated here. When faced with a
choice between leaving unpunished an official violation (perjury, subornation, unconstitutional
46
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5 Aff
searches) and one by a private citizen (murder), the rule of law may give primary concern to
official lawlessness, even given the gravity of the privately caused harm.1°4
Solves Unjust Laws
Nullifying unjust laws is consistent with the rule of law
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
Alternatively, we can explain the nullification of fugitive slave law prosecutions within rule-oflaw terms.“9 This explanation can take a number of forms. For one, we could argue the unjust
statute was enacted by a deeply flawed governmental structure.2 ‘African Americans were denied
the ability to vote and thus denied representation in the governmental bodies that enacted that
law and carried out its administration. On this approach, which is appealing to process theorists
121 and more critical scholars, 122 the undemocratic structure of government that produced the
statutes subverts the validity of the rule of law.123 Nullification was a response to a deeper, prior
injustice that allowed the improper enactment of an unjust statute that was not the product of full
democratic deliberation or citizen input, and thus not worthy of citizen respect. This rationale
raises line-drawing problems, much like those cited by critics of Ely’s process theory of judicial rethis attack, since no electoral or legislative process is perfectly representative and deliberative.125
At most, then, jurors (like judges employing Ely’s theory of review) are deciding a question of
degree, and thereby making substantive assessments that look more political than neutral and
law-like. The response is that the new rule-of-law conceptions at issue here were prompted precisely by the recognition that, at some level, a political or moral choice comes into play in any
application of law. How damaging one finds this response depends on whether one sees this insight as turning all law into politics, or alternatively, as a manageable and tolerable fact that still
allows law to be distinguished from politics or purely moral debate. The new interpretive and
pragmatic approaches to the rule of law take the latter view. One may argue more broadly that
these approaches are wrong on that point. The thesis of this Article, however, is more limited; it
suggests only that nullification fits within these widely held pragmatic or interpretive understandings of the rule of law. Alternatively, in Dworkinian terms, we might identify such a statute as
“internally compromised”126 and condemn it as unprincipled and inconsistent with the “underlying commitment to [a] … more fundamental public conception of justice.” 127 The citizen’s,
and particularly the juror’s, “[p]olitical obligation is then not just a matter of obeying the discrete
political decisions of the community one by one”128 in such forms as the fugitive slave statute.
47
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5 Aff
Political obligation—even in the role of juror-demands instead “fidelity to a scheme of principle
each citizen has a responsibility to identify, ultimately for himself, as his community’s scheme.”
29 In Dworkin’s view, laws “count as legal” only when they “follow from the principles of personal
and political morality the explicit decisions presuppose by way of justification.” ’ 30 One could
reach the same explanation for lawful nullification in this instance by using Radin’s or Eskridge’s
approaches, for the written statute here contravenes widely held social conventions and norms,
as the consistent pattern of nullification verdicts demonstrated. Even before the post-Civil War
amendments that strengthened constitutional antidiscrimination norms, compelling public values existed strongly enough to produce the pattern of jury sentiment against the fugitive slave
law. The rule of law requires citizen-jurors as well as judges to reconcile other sources of law with
the statute in the process of law application. The use of local juries, the protection given their
nullification power, and the tradition of judicial opinion lauding the jury’s mediation of federal
law (and prosecutorial judgment) with local sentiment’ are institutional-procedural means of insuring that written law is interpreted through the public norms and social conventions we now
understand as part of the law. We call the verdict”nullification” because the facts were proven that
put the defendant in violation of the statute; yet the verdict occurs within the rule of law because
of the sources that led the jury to refuse to apply the statute to the facts. 13 2
Solves Unjust Application of Law
Nullification checks unjust application of the law
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
C. NULLIFICATION IN RESPONSE TO BIASED OR UNJUST LAW APPLICATION. A third
circumstance in which juries are likely to nullify convictions are those prosecutions in which a
just law seems unjustly applied. This class of cases raises a different set of problems from the preceding circumstance, in which the law itself seemed unjust because of its clash with widely held
norms, regardless of its application. It differs also from our first example of juries refusing to justly
apply a just law in order to respond to official lawlessness. As an issue of statutory application,
we can find some insight into the difficulties that lead to nullification in this third context from
the extensive literature on judicial interpretation of statutes, which reveals that judges forego literal statute applications at times in order to respond to present social, political, and legal context.
Within this third scenario, jurors might find a statute is unjustly applied by the prosecutor for any
of several reasons. For one, the prescribed punishment may seem unjustly harsh on the defendant,
48
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5 Aff
even though the guilty verdict would be appropriate. 133 One might put juror reaction to harsh
“three strikes” laws in this category if, as there is some indication, those laws have prompted nullification by California juries. One might also put into this category the well documented pattern
of eighteenth century jury nullification in response to England’s “Bloody Code,” which mandated
capital punishment for a long list of crimes including nonviolent, property offenses. Many defendants undoubtedly deserved conviction for, say, theft, but juries nullified because death was an
excessively harsh sentence.34 Juries looked beyond the text of the criminal statute to the social
context and result of a literal application to arrive at such nullification verdicts. Alternatively, law
application may seem inappropriate when the function of criminal law poorly fits the individual defendant’s circumstance.’35 For an example of this problem, consider the prosecution of a
parent for vehicular homicide for the death of a child in a car accident after the parent failed to
use a child-safety seat as required by law.136 Here, the prosecution clearly has strong negligenceper-se grounds under the statute; literal application could seem to compel a guilty verdict. 37
Also, criminal law conceptually distinguishes between punishment imposed by the state and private suffering that a defendant may experience as punishment. Criminal law theory may thereby
justify the prosecution on that ground, as well as on a general deterrence theory. Nevertheless,
many people are likely to see the prosecution of a grieving parent as inappropriate. 138 This sort
of law application can be understood as unjust in relation to the individual defendant; although
the case fits the letter of the statute, the societal consensus is that the general rule was not designed
for this individual case, nor should it be.’39 Apparent legislative purpose combines with widely
held norms and broader purposes of criminal punishment to counsel against such an application.
A jury rendering a not-guilty verdict on this reasoning looks similar to a judge who interprets a
statute non-literally and “dynamically” in light of social context, statutory purpose, and public
norms.1 40
AT: No Democratic Accountability
Nullification doesn’t undermine democratic accountability for 4 reasons
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
Defenders of jury nullification have characterized juries as representatives of the people, serving
to preserve the community’s values against potentially oppressive elites.27 Critics, however, complain that juries are often unrepresentative of the community, that they are accountable to no
one, and that their decisions are unreviewable.28 Legislators, by contrast, are chosen by all of the
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voters and are accountable to the voters. Therefore, the laws passed by the legislature are more
representative of community values than the opinion of a particular jury. Does this argument
establish the wrongfulness of jury nullification? There are four reasons why it does not. First,
the naive assumption that legislation invariably represents shared values simply in virtue of the
existence of democratic elections ignores the extensive literature in public choice theory. Legislation can diverge from community values for numerous and well-known reasons, including
the facts that elections are influenced by charisma, campaign funding, and other factors extraneous to candidates’ policy positions; that voters are aware of only a tiny portion of candidates’
positions; that voters often choose a political candidate merely as the lesser of two evils; and that
victorious candidates are not required in any case to remain faithful to the positions they took
during the campaign.29 Second, even when the law reflects public opinion in general, the great
mass of the public is ignorant of the specifics of any given criminal case. A rule that seems acceptable in general may have unacceptable implications in individual cases, particularly where
there arise unusual circumstances not anticipated by those formulating the rule. Only those who
are apprised of the circumstances of a particular case are in a position to evaluate whether the
application of the law to that individual case would be unjust.30 Third, the requirement of unanimity among twelve individuals all familiar with the facts of a given case provides a far more
rigorous check against unjust punishments than a simple principle of majority rule. In the context of criminal justice, it is widely recognized that an imposition of unjust punishment is much
worse than a mere failure to impose just punishment; hence, it is said that it is better to allow
many guilty individuals to go free than to punish a single innocent person.31 Even if we naively
assume that public policy invariably reflects majority opinion, a blanket commitment to apply
the law in all cases allows individuals to be punished for conduct that only 51% of the population
deems worthy of punishment.32 This extremely low standard for punishment is not consistent
with a genuine recognition of the moral seriousness of coercive punishment and of the grounds
for caution in applying such punishment. Fourth and most importantly, majority will does not
make an unjust act just. The historical examples of grave injustices carried out with the imprimatur of the majority are too well-known to require enumeration here. One may of course worry
that a jury of twelve is as likely as the rest of society to harbor prejudices that lead to its approving
of unjust laws. But that is not the question here. Our question is not one of public policy or the
design of institutions, interesting as those questions may be. Our question is one of individual
conduct. It is the question of what an individual juror ought to do when confronted with a case
of blameless lawbreaking. If one believes that the defendant has done no wrong, one must regard
the judicial punishment of the defendant as an injustice. The fact that such punishment would
be supported by the majority of one’s society, if indeed it would be, does nothing to render the
punishment just, and it provides at most very little ground for one to doubt one’s own opinion.
50
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5 Aff
If one believes, for example, that drug prohibition is unjust, the news that a narrow majority of
one’s own society supports prohibition should not convince one that prohibition is just after all.
The fact that juries in general may be unreliable at determining what is just, if indeed they are,
is likewise irrelevant. What is relevant to the ethical duty of the individual juror is whether this
defendant has done wrong for which he deserves to be punished.
Key to Democratic Accountability
Jury nullification is a key principle of democracy
Scheflin and Van Dyke 72 Alan Scheflin (Santa Clara University School of Law) and Jon
Van Dyke.
“Jury Nullification: The Right to Say No.”
45 S. Cal.
L. Rev. 168 (1972),
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1686&context=facpubs
One of the most significant principles of democracy calls for the involvement or participation of
the “man in the street” in the formation of public policy. Within the framework of the judicial
process, the jury has evolved as an institutional reflection of such a commitment. The “man in the
street” becomes the “man in the jury box,”60 and as such sits as the representative of the community in question.“1 As the embodiment of the”conscience of the community“02 he functionally
legitimizes and effectuates the authoritativeness of decisions made by and through the judicial
process.63 The chief distinguishing characteristic of any democratic system is effective popular
control over policymakers.64 With reference to the judicial process this can mean only one thing:
If the”man in the jury box” is to fulfill his role as the representative of the “conscience of the
community,” participating effectively in the making of public policy, then he must possess the
power and the right to check the “misapplication” of any particular value distribution. Beyond
this, he must be informed that he has such a power and the constitutional right to exercise it.
Lawrence Velvel argues that the notion of jury nullification is “a kind of repository of grass roots
democracy” since ordinary citizens can effectively say no to their rulers when their policies and
laws are no longer in touch with the will of the people. 65 This argument is strengthened by examination of the fundamental justification for the jury. In Duncan v. Louisiana, 66 the Supreme
Court interpreted the sixth amendment right to trial by jury in these terms: A right to jury trial
is granted to criminal defendants in order to prevent oppression by the Government. Those who
wrote our constitutions knew from history and experience that it was necessary to protect against
unfounded criminal charges brought to eliminate enemies and against judges too responsive to
the voice of higher authority. The framers of the constitutions strove to create an independent
judiciary but insisted upon further protection against arbitrary action. Providing the accused
with the right to be tried by a jury of his peers gave him an inestimable safeguard against the
51
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5 Aff
corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge…. Fear
of unchecked power, so typical of our State and Federal Governments in other respects, found
expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. 7
5.0.2 Moral Obligation
General
Juries have a moral duty to nullify laws they believe are unjust even if they might be wrong
LaBossiere 9 Mike LaBossiere (philosophy professor at Florida A&M University). “Jury Nullification.” Talking Philosophy. 6 October 2009. http://blog.talkingphilosophy.com/?p=1353 On
the face of it, law is either based on a moral foundation or it is not. Now, if law has no moral
foundation at all, then there would seem to be no basis to morally criticize a jury for nullifying
a law. After all, they would have no moral obligation to follow the law. However, if law has a
moral foundation, then it would owe (at least some of) its authority to that moral foundation.
This would seem to entail (with some suitable and lengthy argumentation) that any law that goes
against that moral foundation would be an illegitimate law. This would clearly provide a moral
basis for jury nullification. After all, if the jury has correctly discerned the law as being illegitimate
(that is, it violates the moral foundation of law) then they would be in the right to refuse to apply
it. Naturally, if they elected to apply it, then the folks on the jury would be acting in what would
seem to be an immoral manner. It might be objected that even if the law has a moral foundation,
jury members are obligated to apply the law even if it is an immoral law. One might even point
to Socrates’ arguments in the Crito as to why a citizen owes obedience even when he disagrees
with the law (although the citizen should try to persuade the state to change such laws). While
this objection does have a certain appeal, it can be countered by noting that the status of a person
as a moral agent has a moral priority over her status as a citizen. This is to say that morality is
more fundamental than the law. As such, a person has a primary obligation to do what is right
and this can override other apparent obligations, such as the obligation to obey the law. In fact, if
it is argued that a person is morally obligated to obey the law, the objection already assumes that
morality is more fundamental than law. Otherwise, one would just say that the law commands
obedience that overrides everything. This, of course, leads to the next objection. Some thinkers
hold exactly that: the law commands obedience. Some, such as the legalists, go even further and
assert that what the law commands is good because it commands it and what it forbids is evil
because it forbids it. On this view, citizens should obey the law because it is the law. A reply to
52
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5 Aff
this is the intuitive view that there have been and are evil laws that should not be obeyed. That
people should do what the state says because the state says so hardly seems to be a satisfying moral
theory. Rather, it seems to be merely the dream of authoritarians and dictators. A final objection
worth considering is that a jury might be mistaken about the ethics of the law and hence they
should simply follow the law out of fear of being wrong. The easy and obvious reply to this is that
if a jury can be trusted to make life and death decisions, surely they can be trusted to make such
moral judgments. If juries cannot be trusted to make such tough moral decisions, then this would
undercut the entire notion of trial by jury and thus render the whole concern about nullification
moot. The objection does, however, present a reasonable concern. After all, juries should not
lightly or frivolously apply nullification nor should they do so unless the folks on the jury have
properly considered the ethics of the matter. In cases of immoral laws, jury nullification would
seem to be more than morally acceptable-it would seem to be morally required.
AT: Crime is Always Wrong
Many illegal actions are morally blameless
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley; PhD,
Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014. philpapers.org/archive/HUETDT.pdf 2.1. Some Illegal Acts Are Morally Blameless. The kind of jury
nullification with which I am concerned occurs when a defendant is prosecuted for an act that
was illegal but morally blameless. Almost everyone admits that there are such acts. During
World War II, some German citizens illegally hid Jews to protect them from persecution by the
Nazis. In the pre-Civil War era, some Americans illegally helped slaves to escape from their
masters via the Underground Railway. During the 1960’s, some Americans illegally burned
their draft cards in protest of the Vietnam War. All of these actions were not only blameless
but positively praiseworthy. It is sometimes thought that such cases are very rare. If so, the
present discussion might be of little import to the actual conduct of juries, however correct my
central contentions might be. I shall therefore briefly mention two reasons to think that in fact,
blameless lawbreaking is likely to be fairly common. First, the view that individuals lack any
general, content-independent duty to obey the law has in recent decades become a well-regarded,
if not orthodox position in political philosophy.4 Philosophers attempting to defend a general
duty to obey the law have found the task extremely difficult, and the most influential traditional
account of this duty, the social contract theory, is now widely recognized as untenable. Recent
theories of political obligation are vague, speculative, and increasingly recondite. This situation
has come about, not as a result of some anti-authority bias on the part of political philosophers,
53
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5 Aff
but rather in spite of a widespread desire on the part of political philosophers to defend the
authority of government. Second, even those who defend the notion of a general duty to obey
the law defend only a prima facie duty, and not one that appears extremely strong. The duty to
obey the law has been said, for example, to arise out of an obligation to avoid free riding, to treat
other citizens as equals, or to promote just institutions in one’s society.5 While each of these
obligations has some intuitive force, none appear to be exceptionally powerful and difficult to
override.
Nonmaleficence Justifies Nullification
There is a duty not to cause undeserved harms which justifies jury nullification
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
2.2. The Duty to Refrain from Causing Unjust Harm Imagine that you are walking down a public
street with a flamboyantly-dressed friend, when you are accosted by a gang of gaybashing hoodlums. The leader of the gang asks you whether your friend is gay. You have three alternatives:
you may answer yes, refuse to answer, or answer no. You are convinced that either of the first
two choices will result in a beating for your friend. However, you also know that your friend is
in fact gay. Therefore, how should you respond? This is hardly an ethical dilemma. Clearly, you
should answer no. No person with a reasonable and mature moral sense will have difficulty with
this case. Granted, it is usually wrong to lie, but the importance of avoiding inaccurate statements
pales in comparison to the importance of avoiding serious and unjust injury for your friend. The
case illustrates a simple and uncontroversial ethical principle: it is prima facie wrong to cause
another person to suffer serious undeserved harms. This is true even when the harm would be directly inflicted not by oneself but by a third party. Indeed, it may be one’s positive duty to prevent
such harms, when one can do so at trivial cost. The duty to avoid contributing to serious, unjust
harms may perhaps be overridden in extreme cases, but it is not easily overridden. It would not
be just, for example, to punish an innocent man to prevent an angry mob from rioting, even if
one believed the riots would cause considerably greater harm than the punishment the innocent
defendant would suffer.6 This suggests that the right not to be unjustly punished is overridden, if
at all, only by very serious considerations. 2.3. The Simple Argument for Nullification. The gaybasher case appears analogous to the jury nullification case. By stipulation, we are considering
the case of a morally blameless defendant, who therefore does not deserve punishment. On the
face of it, undeserved punishment constitutes an unjust harm. In most cases of interest, judicial
54
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5 Aff
punishment will be much more harmful than a beating, involving months or years of forced confinement in dangerous and extremely unpleasant conditions. Therefore, a juror has, if anything,
a much stronger reason to avoid causing the blameless defendant to be judicially punished than
you have to avoid causing your friend to be beaten by hoodlums. A jury that votes to convict
a defendant can predict that this will result in judicial punishment of the defendant, even more
surely than you could predict the violence your friend would suffer at the hands of the hoodlums
in the above example. Therefore, the jury should not vote to convict. Just as you should tell the
hoodlums your friend is not gay, the jury should tell the state that the defendant is not guilty.
Whether the “not guilty” verdict should be construed as a lie is immaterial, since the imperative
of avoiding serious unjust harms is of far greater import than the relatively trivial imperative to
avoid making inaccurate statements.7 In short, there is a simple and obvious argument for jury
nullification: 1. It is prima facie wrong to cause unjust harm to others. 2. To convict a defendant for a morally blameless violation of law is to cause unjust harm to that defendant, for: a. To
convict a defendant is to cause the defendant to be punished. b. One does not deserve punishment for a morally blameless act. c. Undeserved punishment is an unjust harm. 3. Therefore,
it is prima facie wrong to convict a defendant for a morally blameless violation of law. This argument establishes not only an entitlement but a duty of jury nullification in cases of blameless
law-violations. This is no trivial or easily overridden duty, for it derives directly from the duty to
avoid causing unjust harms. The more serious an unjust harm is, the stronger is the moral duty
to avoid bringing it about. Since judicial punishments are typically very serious harms, the duty
of jury nullification, when it comes into play, is typically a very weighty duty.
AT: Duty Not to Lie (Perjury)
The juror’s oath is not ethically binding
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
In the United States, jurors are usually required to swear an oath promising to apply the law as
given them by the judge. Jury nullification violates that oath. This seems to provide a reason
against nullification and in favor of applying the law as given by the judge.9 Nearly all ethicists,
however, recognize that it is sometimes permissible to break a promise. Three ethical principles
governing the obligation of promises seem relevant here. To begin with, it is normally permissible
to break a promise when necessary to prevent serious and undeserved harms to another person.
For instance, suppose you have promised to pick a friend up from the airport, but on the way, you
55
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5 Aff
encounter an injured accident victim in need of medical assistance. It would be permissible, if not
obligatory, to assist the accident victim, even though doing so will prevent you from picking up
your friend. And this is true regardless of whether your friend will be understanding about your
failure to pick him up. Second, a promise prompted by a threat of unjust coercion is typically not
ethically binding.10 If a gunman threatens to shoot you unless you promise to pay him $1,000,
that promise will have no moral force. Thus, if you escape the gunman after making the promise,
you have no moral obligation at all to deliver $1000 to him. The same goes for unjust threats
against third parties: if a gunman threatens to shoot your neighbor unless you promise to pay
$1,000 to the gunman, that promise, too, is invalid. If the neighbor escapes after you have made
the promise, you have no obligation at all to hand over the money. Third, even when a promise is
initially valid, it is permissible to break the promise if doing so is necessary to forestall a threat of
unjust harm from the person to whom the promise was made. The promisee in such a case has
no valid complaint, since it is his own threatened unjust behavior that makes it necessary to break
the promise. For example, suppose I have voluntarily promised to lend you my rifle next weekend.
Before the week-end arrives, you credibly inform me that you intend to use the rifle to murder
several people. In this case, I should not still lend you the rifle. It is not merely that my prima facie
obligation to keep the promise is outweighed by the need to prevent several murders. Rather, your
threat of unjust harm completely cancels any obligation I would have had to keep my promise to
you. I would not, for example, owe you compensation, or even an apology, for my breaking of
my promise to you. You have no valid complaint at all, since your own unjust threat forced me to
break the promise. All three of these principles are operative in the case of the juror’s oath to apply
the law. First, since the harms suffered by an unjustly convicted defendant are usually extremely
serious, the need to avert those harms would normally justify the breaking of a promise, even if
there were no further special conditions in the case. Second, however, the juror’s oath is not a
valid promise to begin with, since jurors who are aware of the injustice of the law applicable to a
given case are essentially forced to take the oath in order to prevent the state from inflicting unjust
harms on the defendant. Since jurors know that the court will automatically exclude them from
the jury if they decline the oath, and that in most cases the resulting jury could not be trusted to
acquit the defendant, a given juror’s only feasible means of preventing punishment of a defendant
under an unjust law is to falsely promise to apply the law.11 Third, even if the juror’s promise to
apply the law were initially valid, any prima facie obligation created by that promise is cancelled
if and when the state–the party to whom the promise was made–makes an unjust threat that can
only be averted by breaking that promise. The juror’s oath thus has no moral force at all in a case
in which the application of the law would be unjust.
56
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5 Aff
AT: Bad Consequences
Broader negative ramifications of nullification should be considered irrelevant
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
Third, the sort of social policy considerations raised by critics of nullification are foreign to the
kind of concern for justice in the individual case that is normally the hallmark of criminal justice.
The function of a criminal trial is to do justice by that defendant–that is, to punish the defendant in
the case at hand if and only if he has done something that deserves punishment.19 The function of
a trial is not to mete out punishment that will be convenient to some larger social policy objective
irrespective of the defendant’s own desert. This point is widely accepted in other contexts. Thus,
suppose you are on the jury in a case in which you believe that the defendant did not in fact
perform the acts of which he is accused. But suppose you also believe that, for whatever reason,
most other juries, in similar circumstances, would vote to convict the defendant. No one would
argue that in such a situation, you should vote to convict the apparently innocent defendant so
as to ensure greater predictability or uniformity in the criminal justice system as a whole. Such
considerations would rightly be regarded as irrelevant; the question is whether this particular
defendant is in fact guilty. Whether an individual did not do what he is accused of doing, or the
individual did what he is accused of doing but that conduct was not wrong, it is in either case
unjust to punish that individual. And it is difficult to see why we should be any more tolerant of
the imposition of unjust punishments in the one case than we are in the other. It is therefore very
difficult to see how the goal of increasing predictability in trial outcomes might justify imposing
punishment on a particular individual who has done nothing wrong.
AT: Activism
Activism alone is not a substitute for jury nullification
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
Some critics, while acknowledging that unjust laws exist, argue that the proper remedy is to
change the law through political activism, rather than to nullify the law in the jury room.23 At
first glance, the recommendation of attempting to change the law through political activism is a
57
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5 Aff
non sequitur, since political activism and jury nullification are mutually compatible. An individual may agitate to change a law with equal vigor whether or not the individual has served on a
jury that voted to nullify that law in a particular case. Therefore, the idea that political activism
to change unjust laws is desirable does not provide a reason against nullification. Perhaps the
suggestion is that jury nullification is rendered unnecessary by the option of political activism,
because the repeal of the unjust law would end the injustice without resort to nullification. There
are two problems with this suggestion. The first is that in most cases, an individual jury member’s
probability of successfully changing public policy is approximately zero. This is not to deny that
broad political movements carried forth by thousands or millions of citizens often cause changes
in public policy. But the individual juror does not have control of thousands or millions of others; the individual must decide on his own actions. And the individual’s probability of making
the difference to the success or failure of a broad social movement is typically negligible. The
second problem is that, even if an individual juror had the option of repealing the law, that repeal
would come too late for the particular defendant in the trial for which the juror is now serving. By
hypothesis, the unjust law exists as of the time of trial. And the immediate motivation for nullification is not to change the law; the immediate motivation for nullification is to secure justice for
the defendant presently before the court–to ensure that that individual is not unjustly punished.
The suggestion that one convict the defendant and then later petition the legislature for political
change does nothing to secure justice for that individual.24
AT: Hurts Juries
Emotional turmoil for juries does not outweigh the harm of unjust conviction
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
Some argue that the doctrine of jury nullification places excessive burdens on juries. If juries
must judge not only the facts of the case before them but also the morality of the law, then juries
will face great cognitive and emotional burdens. Whenever a defendant is punished, the jury
will feel responsible for the punishment, which may impose a significant psychological burden
in cases in which the justice of the law is open to debate. It is much easier on the jury to allow
them to simply determine the facts and place responsibility for the laws on the legislature.25 This
argument involves more solicitude for the psychological comfort of those who punish others than
for the rights or welfare of those who may be subject to punishment. Psychologists have found
that the social diffusion of responsibility is one of the key factors facilitating the abuse of power.
58
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5 Aff
People are far more willing to inflict unjust harm on others when the moral responsibility for the
harm is unclear or divided among many parties, when those deciding to inflict the harm need not
directly confront the victim, and when those directly inflicting the harm can refer responsibility
to some authority figure.26 A decent respect for human dignity requires that, if an individual is
to be subjected to severe, intentional harms, someone who actually sees the individual and hears
that individual’s story should take responsibility for the harm.
5.0.3 Solvency
Solves Prosecutorial Discretion
Prosecutors are just as prone to abuse of power, and nullification is a key limitation
Reynolds 15 Glenn Harlan Reynolds (University of Tennessee law professor).
“Nullify-
ing juries more interested in justice than some prosecutors.” USA Today. 6 August 2015.
http://www.usatoday.com/story/opinion/2015/08/06/jury-nullification-prosecutorial-discretioncolumn/31124011/ Of course, prosecutors have essentially the same power, since they’re under
no obligation to bring charges against even an obviously guilty defendant. But while the power
of juries to let guilty people go free in the name of justice is treated as suspect and called “jury
nullification,” the power of prosecutors to do the exact same thing is called “prosecutorial
discretion,” and is treated not as a bug, but as a feature in our justice system. But there’s no
obvious reason why one is better than the other. Yes, prosecutors are professionals — but they’re
also politicians, which means that their discretion may be employed politically. And they’re
repeat players in the justice system, which makes them targets for corruption in a way that
juries — laypeople who come together for a single case — aren’t. As Clay S. Conrad notes in
his Jury Nullification: The Evolution Of A Doctrine, to the framers of our Constitution, jury
nullification was itself a feature, not a bug. Distrustful of the bureaucracy and even of the
judiciary, framing-era Americans viewed a jury’s refusal to convict as an important protection
for liberty. This remained the case until, Conrad notes, juries began refusing to enforce the
Fugitive Slave Act of 1850, because they thought returning escaped slaves to their owners was
unjust. In response, the system began trying to get around juries’ power not to convict. These
efforts increased when juries were reluctant to convict labor leaders, or to enforce Prohibition.
And though there were racist juries that refused to convict racist defendants in the civil rights era,
Conrad notes that those juries were part of a system that also involved racist prosecutors, racist
police, and racist judges. Nowadays, jury nullification is less important because, as I recently
wrote in the Columbia Law Review, so few cases even go to a jury anymore. Instead, prosecutors
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5 Aff
draft massive “kitchen sink” indictments charging dozens or hundreds of crimes, then bludgeon
defendants into accepting a plea bargain rather than risk a trial in which conviction on even a
single count out of hundreds of charges could be disastrous. A different kind of jury — the grand
jury — is supposed to discipline prosecutors on indictments, but in practice, they’ve turned
into rubber stamps for the most part. If we value justice in this nation, the solution isn’t to give
prosecutors a freer hand. It’s to hold them more firmly to the limitations our nation’s founders
intended. That’s not “tampering.” It’s setting things right.
Solves Overcriminalization
Jury nullification prevents overcriminalization
Somin 15 Ilya Somin (Professor of Law at George Mason University School of Law). “Rethinking
Jury Nullification.” Washington Post. 7 August 2015. https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/08/07/rethinking-jury-nullification/
As Reynolds points out, jury nullification is supported by longstanding Anglo-American legal
tradition, and was considered a vital check on government power by many of the Founders. The
case for jury nullification today is strengthened by the enormous growth of modern criminal law,
which has expanded to the point where almost all of us are guilty of some crime or other (an issue
that Reynolds himself has written about). In a world where almost everyone is a criminal, there is
already enormous arbitrariness, because prosecutors can only go after only a small percentage of
the many perpetrators. Jury nullification is unlikely to make that situation worse than it already
is. Moreover, many of the crimes on the books are ones that either should not be illegal at all,
or should not carry such harsh penalties. As a practical matter, jury nullification is much more
likely to target those kinds of laws than ones that rest on a broad social consensus to the effect that
the activities they ban should be criminalized and violators subjected to severe punishment. The
racial, ethnic, and religious prejudice that made nullification dangerous in earlier eras certainly
has not completely disappeared. But it has greatly diminished. That reduces, even if it does not
eliminate, a key downside of nullification. Jury nullification is far from a complete solution to the
problem of overcriminalization. It would be better to simply remove many of these laws from the
books entirely. But nullification can help improve the situation at the margin. For that reason,
among others, I am much more sympathetic to it than I used to be.
60
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5 Aff
Solves State Corruption
Nullification is an important form of activism against bureaucracy and corruption
Whitehead 15 John W. Whitehead (Attorney and President of The Rutherford Institute). “We Are the Government: The Power of Jury Nullification.” Huffington Post. 19
August 2015.
http://www.huffingtonpost.com/john-w-whitehead/we-are-the-government-
the_b_8004470.html
Saddled with a corporate media that marches in lockstep with the government, elected officials
who dance to the tune of their corporate benefactors, and a court system that serves to maintain
order rather than mete out justice, Americans often feel as if they have no voice and no recourse
when it comes to holding government officials accountable and combatting rampant corruption
and injustice. We’re impotent in the face of SWAT teams that break down doors and leave toddlers
scarred for life. We’re helpless to prevent police shootings that leave unarmed citizens dead for
no other reason than the police officer involved felt “threatened.” And we’re defenseless against
a barrage of laws that render virtually anything and everything a crime nowadays (feeding the
birds, growing vegetables in your front yard, etc.) to such an extent that if a prosecutor, police
officer and judge were so inclined, you could be locked up for any inane reason. This is tyranny
dressed up in the official garb of the police state. It is the self-righteous, heavy-handed arm of
the law being used as a decoy to divert your attention to the so-called criminals in your midst
(the fisherman who threw back small fish into the ocean, the mother who let her child walk to
the playground alone, the pastor holding Bible studies in his backyard) so that you don’t focus on
the criminal behavior being perpetrated by the government. So how do you not only push back
against the police state’s bureaucracy, corruption and cruelty but also launch a counterrevolution
aimed at reclaiming control over the government using nonviolent means? You start by changing
the rules and engaging in some (nonviolent) guerilla tactics. Employ militant nonviolent resistance and civil disobedience, which Martin Luther King Jr. used to great effect through the use of
sit-ins, boycotts and marches. Take part in grassroots activism, which takes a trickle-up approach
to governmental reform by implementing change at the local level (in other words, think nationally, but act locally). And then, while you’re at it, nullify everything the government does that
is illegitimate, egregious or blatantly unconstitutional. Various cities and states have been using
this historic doctrine with mixed results on issues as wide ranging as gun control and healthcare
to “claim freedom from federal laws they find onerous or wrongheaded.” Where nullification
can be particularly powerful, however, is in the hands of the juror. According to former federal
prosecutor Paul Butler, the doctrine of jury nullification is “premised on the idea that ordinary
citizens, not government officials, should have the final say as to whether a person should be pun-
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ished.” Imagine that: a world where the laws of the land reflect the concerns of the citizenry as
opposed to the profit-driven priorities of Corporate America. Unfortunately, as I point out in my
book Battlefield America: The War on the American People, with every ill inflicted upon us by
the American police state, from overcriminalization and surveillance to militarized police and
private prisons, it’s money that drives the police state. And there is a lot of money to be made
from criminalizing nonviolent activities and jailing Americans for nonviolent offenses. This is
where the power of jury nullification is so critical: to reject inane laws and extreme sentences and
counteract the edicts of a profit-driven governmental elite that sees nothing wrong with jailing
someone for a lifetime for a relatively insignificant crime. Of course, the powers-that-be don’t
want the citizenry to know that it has any power at all. They would prefer that we remain clueless about the government’s many illicit activities, ignorant about our constitutional rights, and
powerless to bring about any real change. Indeed, so determined are they to keep us in the dark
about the powers vested in “we the people” that the U.S. Supreme Court ruled in 1895 that jurors
had no right during trials to be told about nullification. Moreover, anyone daring to educate a
jury about nullification—clearly protected by the First Amendment—runs the risk of prosecution.
Just recently, for example, 56-year-old Mark Iannicelli was charged with seven counts of jury tampering for handing out jury nullification fliers outside a Denver courtroom. In an age in which
government officials accused of wrongdoing are treated with general leniency, while the average
citizen is prosecuted to the full extent of the law, jury nullification is a powerful reminder that,
as the Constitution tells us, “we the people” are the government. For too long we’ve allowed our
so-called “representatives” to call the shots. Now it’s time to restore the citizenry to their rightful
place in the republic: as the masters, not the servants. Jury nullification is one way of doing so.
The reality with which we must contend is that justice in America is reserved for those who can
afford to buy their way out of jail. For the rest of us who are dependent on the “fairness” of the
system, there exists a multitude of ways in which justice can and does go wrong every day. As I’ve
said before, when you go into a courtroom, you’re going up against three adversaries who more
often than not are operating off the same playbook: the police, the prosecutor and the judge. If
you’re to have any hope of remaining free—and I use that word loosely—your best bet remains in
your fellow citizens. They may not know what the Constitution says (studies have shown Americans to be abysmally ignorant about their rights), they may not know what the laws are (there are
so many on the books that the average American breaks three laws a day without knowing it), and
they may not even believe in your innocence, but if you’re lucky, they will have a conscience that
speaks louder than the legalistic tones of the prosecutors and the judges and reminds them that
justice and fairness go hand in hand. That’s ultimately what jury nullification is all about: restoring a sense of fairness to our system of justice. It’s the best protection for “we the people” against
the oppression and tyranny of the government, and God knows, we can use all the protection we
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can get. Most of all, jury nullification is a powerful way to remind the government—all of those
bureaucrats who have appointed themselves judge, jury and jailer over all that we are, have and
do—that we’re the ones who set the rules.
Empirical Examples Prove Solvency
Empirical examples prove nullification is effective
Butler 11 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Jurors Need to Know That They Can Say No.” New York Times. 20 December 2011. http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=0
Nullification has been credited with helping to end alcohol prohibition and laws that criminalized
gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a
favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t
think he could find enough jurors to hear the case. (Prosecutors now say they will remember
the actions of those jurors when they consider whether to charge other people with marijuana
crimes.) There have been unfortunate instances of nullification. Racist juries in the South, for
example, refused to convict people who committed violent acts against civil-rights activists, and
nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean
it should be taken away from everyone else. How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust
jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in
Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly
because they were concerned about racially selective enforcement of the law.
AT: False convictions
Jury nullification is not the same as false convictions
Scheflin and Van Dyke 72 Alan Scheflin (Santa Clara University School of Law) and Jon
Van Dyke.
“Jury Nullification: The Right to Say No.”
45 S. Cal.
L. Rev. 168 (1972),
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1686&context=facpubs
But what about jury conviction? If the jury has the power to nullify by acquitting, surely they have
the power to nullify by convicting. It cannot be denied that the jury has this power. But it is not
an absolute and unchecked power. The defendant has a right of appeal and thus higher authority
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5 Aff
will ultimately decide his fate. This fact alone should show the asymmetry between acquittal
and conviction, and thus expose the inherent fallacy of the argument.153 Another reason exists
which shows that “nullification” by conviction is inconsistent with the jury nullification principle
advocated here in terms of the jury’s right to be instructed that they may acquit on the basis of
conscience. In convicting dehors the judge’s instructions, the jury violates the basic tenet which
justified its power of acquittal. No popular curb on prosecutorial discretion exists in the case of
jury conviction. The jury underscores the indiscretion rather than undercutting it. In addition,
the jury ceases to act as the conscience of the community because it violates commitments to legal
procedures and protections upheld as normative values by that community.
5.0.4 Race-Based Nullification
General
Jury nullification is key to protect black communities from racial bias in prison sentencing
Butler 95 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). http://kemetrise.sytes.net:8245/butler.pdf
My thesis is that the black community is better off when some nonviolent lawbreakers remain
in the community rather than go to prison. The decision as to what kind of conduct by AfricanAmericans ought to be punished is better made by African-Americans themselves, based on the
costs and benefits to their community, than by the traditional criminal justice process, which is
controlled by white lawmakers and white law enforcers. Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of
African-American defendants. Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black
antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black
outlaws. Through jury nullification, I want to dismantle the master’s house with the master’s tools.
My intent, however, is not purely destructive; this project is also constructive, because I hope
that the destruction of the status quo will not lead to anarchy, but rather to development of noncriminal ways of addressing antisocial conduct. Criminal conduct among African-Americans
is often a predictable reaction to oppression. Sometimes it is a symptom of internalized white
supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day. Punishing black people for the fruits of racism is wrong
if that punishment is premised on the idea that it is the black criminal’s “just deserts.” Hence, the
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5 Aff
new paradigm of justice I suggest rejects punishment for the sake of retribution and endorses it,
with qualifications, for the ends of deterrence and incapacitation.
Rule of Law Fails
Jury nullification challenges the myth of rule of law
Butler 95 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). http://kemetrise.sytes.net:8245/butler.pdf
Jury nullification is plainly subversive of the rule of law-the idea that courts apply settled doctrine
and do not “dispense justice in some ad hoc, case-by-case basis.”” To borrow a phrase from the
D.C. Circuit, jury nullification “betrays rather than furthers the assumptions of viable democracy.”4 Because the Double Jeopardy Clause makes this power part-and-parcel of the jury system,
the issue becomes whether black jurors have any moral right to “betray democracy” in this sense.
I believe that they do. First, the idea of “the rule of law” is more mythological than real, and
second, “democracy,” as practiced in the United States, has betrayed African-Americans far more
than they could ever betray it. The Rule of Law as Myth The idea that “any result can be derived
from the preexisting legal doctrine” either in every case or many cases, is a fundamental principle
of legal realism (and, now, critical legal theory). The argument, in brief, is that law is indeterminate and incapable of neutral interpretation. When judges “decide” cases, they “choose” legal
principles to determine particular outcomes. Even if a judge wants to be neutral, she cannot, because, ultimately, she is vulnerable to an array of personal and cultural biases and influences; she
is only human. In an implicit endorsement of the doctrine of jury nullification, legal realists also
suggest that, even if neutrality were possible, it would not be desirable, because no general principle of law can lead to justice in every case. It is difficult for an African-American knowledgeable
of the history of her people in the United States not to profess, at minimum, sympathy for legal
realism. Most blacks are aware of countless examples in which African-Americans were not afforded the benefit of the rule of law: Think, for example, of the institution of slavery in a republic
purportedly dedicated to the proposition that all men are created equal, or the law’s support of
state-sponsored segregation even after the Fourteenth Amendment guaranteed blacks equal protection. That the rule of law ultimately corrected some of the large holes in the American fabric is
evidence more of its malleability than of its virtue; the rule of law had, in the first instance, justified the holes …. If the rule of law is a myth, or at least is not applicable to African-Americans, the
criticism that jury nullification undermines it loses force. The black juror is simply another actor
in the system, using her power to fashion a particular outcome; the juror’s act of nullification-like
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5 Aff
that of the citizen who dials 911 to report Ricky but not Bob, or the police officer who arrests Lisa
but not Mary, or the prosecutor who charges Kwame but not Brad, or the judge who finds that
Nancy was illegally entrapped but Verna was not-exposes the indeterminacy of law, but does not
create it.
Consistent with Rule of Law
Race-based nullification upholds the rule of law by challenging racially biased applications
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
In light of preceding discussions, Butler’s second argument for nullification is easier to reconcile
with the rule of law. He posits nullification as an appropriate response to specific patterns of law
enforcement decisions leading to disproportionate results. These patterns include discretionary
choices to target limited investigation resources in black communities, to arrest particular types
of violators rather than others, and to charge them with certain offenses rather than others.’54 In
his view, those choices have devastating consequences for the African American community. 55
These choices of law enforcement officials are lawful in the narrow sense that they violate no law
or doctrine such as equal protection. Each case in isolation may be a just application in that the
defendant met the elements of a just law. 56 But in Butler’s account they constitute injustice in
the sense that they hold more blacks than whites liable for the same offenses, and do so within a
context in which African Americans had less opportunity to avoid criminal behavior in the first
place. 5 7 Thus discretionary enforcement has reached a stage of bias that compromises the criminal justice system generally. 158 We have already noted how rule-of-law scholars concede rule
application cannot occur outside a normative-political context. In Dworkin’s terms, for example, adjudication cannot occur without reference to the moral coherence of a “total set of laws”
and their administration.1 59 Responding to the injustice of legislative and administrative decisionmaking is a necessary part, within the rule of law, of the jury’s case adjudication function.
Moreover, such a response builds on an established principle and public value in constitutional
law. A criminal sanction can be excessive in comparison to similar cases, even if it is not disproportionate in relation to individual culpability.16° Butler argues for extending this principle, in
effect, to nullify sentences when comparable, nonwhite citizens have not been similarly targeted
by law enforcement administration.16
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5 Aff
AT: Negative Examples
Nullification is a legitimate tool, even if there are negative examples
Butler 95 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). http://kemetrise.sytes.net:8245/butler.pdf
Any juror legally may vote for nullification in any case, but, certainly, jurors should not do so without some principled basis. The reason why some historical examples of nullification are viewed
approvingly is that most of us now believe that the jurors in those cases did the morally right thing;
it would have been unconscionable, for example, to punish those slaves who committed the crime
of escaping to the North for their freedom. It is true that nullification later would be used as a
means of racial subordination by some southern jurors, but that does not mean that nullification
in the approved cases was wrong. It only means that those southern jurors erred in their calculus
of justice. I distinguish racially based nullification by African-Americans from recent right-wing
proposals for jury nullification on the ground that the former is sometimes morally right and the
latter is not. How to assign the power of moral choice is a difficult problem. Yet we should not
allow that difficulty to obscure that legal resolutions require moral decisions, judgments of right
and wrong. The fullness of time permits us to judge the fugitive slave case differently from the
southern pro-white-violence case. One day we will be able to distinguish between racially based
nullification and that proposed by right-wing groups. We should remember that the morality of
the historically approved cases was not so clear when those brave jurors acted. Then, as now, it is
difficult to see the picture when you are inside the frame. Imagine a country in which more than
half of the young male citizens are under the supervision of the criminal justice system, either
awaiting trial, in prison, or on probation or parole. Imagine a country in which two-thirds of
the men can anticipate being arrested before they reach age thirty. Imagine a country in which
there are more young men in prison than in college. Now give the citizens of the country the
key to the prison. Should they use it? Such a country bears some resemblance to a police state.
When we criticize a police state, we think that the problem lies not with the citizens of the state,
but rather with the form of government or law, or with the powerful elites and petty bureaucrats
whose interests the state serves. Similarly, racial critics of American criminal justice locate the
problem not so much with the black prisoners as with the state and its actors and beneficiaries.
As evidence, they cite their own experiences and other people’s stories, African-American history, understanding gained from social science research on the power and pervasiveness of white
supremacy, and ugly statistics like those in the preceding paragraph.
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5 Aff
AT: Justifies Violent Crime
Juries can make exceptions for violent or harmful crimes
Butler 95 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). http://kemetrise.sytes.net:8245/butler.pdf
In cases of violent malum in se crimes like murder, rape, and assault, jurors should consider the
case strictly on the evidence presented, and, if they have no reasonable doubt that the defendant
is guilty, they should convict. For nonviolent malum in se crimes such as theft or perjury, nullification is an option that the juror should consider, although there should be no presumption in
favor of it. A juror might vote for acquittal, for example, when a poor woman steals from Tiffany’s,
but not when the same woman steals from her next-door neighbor. Finally, in cases involving
nonviolent, malum prohibitum offenses, including “victimless” crimes like narcotics offenses,
there should be a presumption in favor of nullification. This approach seeks to incorporate the
most persuasive arguments of both the racial critics and the law enforcement enthusiasts. If my
model is faithfully executed, fewer black people would go to prison; to that extent, the proposal
ameliorates one of the most severe consequences of law enforcement in the African-American
community. At the same time, the proposal, by punishing violent offenses and certain others,
preserves any protection against harmful conduct that the law may offer potential victims. If the
experienced prosecutors at the U.S. Attorney’s Office are correct, some violent offenders currently
receive the benefit of jury nullification, doubtless from a misguided, if well-intentioned, attempt
by racial critics to make a political point. Under my proposal, violent lawbreakers would go to
prison.
AT: Just Deserts/Retribution
Retribution does not apply in cases of racial disparity
Butler 95 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). http://kemetrise.sytes.net:8245/butler.pdf
In the language of criminal law, the proposal adopts utilitarian justifications for punishment: deterrence and isolation. To that extent, it accepts the law enforcement enthusiasts’ faith in the
possibility that law can prevent crime. The proposal does not, however, judge the lawbreakers as
harshly as the enthusiasts would judge them. Rather, it assumes that, regardless of the reasons for
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5 Aff
their antisocial conduct, people who are violent should be separated from the community, for the
sake of the nonviolent. The proposal’s justifications for the separation are that the community is
protected from the offender for the duration of the sentence and that the threat of punishment
may discourage future offenses and offenders. I am confident that balancing the social costs and
benefits of incarceration would not lead black jurors to release violent criminals simply because
of race. While I confess agnosticism about whether the law can deter antisocial conduct, I am
unwilling to experiment by abandoning any punishment premised on deterrence. The proposal
eschews the retributive or “just deserts” theory for two reasons. First, I am persuaded by racial
and other critiques of the unfairness of punishing people for “negative” reactions to racist, oppressive conditions. In fact, I sympathize with people who react “negatively” to the countless
manifestations of white supremacy that black people experience daily. While my proposal does
not “excuse” all antisocial conduct, it will not punish such conduct on the premise that the intent
to engage in it is “evil.” The antisocial conduct is no more evil than the conditions that cause it,
and, accordingly, the “just deserts” of a black offender are impossible to know. And even if just
deserts were susceptible to accurate measure, I would reject the idea of punishment for retribution’s sake. Black people have a community that needs building, and children who need rescuing,
and as long as a person will not hurt anyone, the community needs him there to help. Assuming that he actually will help is a gamble, but not a reckless one, for the “just” African-American
community will not leave the lawbreaker be: It will, for example, encourage his education and
provide his health care (including narcotics dependency treatment) and, if necessary, sue him for
child support. In other words, the proposal demands of African-Americans responsible self-help
outside of the criminal courtroom as well as inside it. When the community is richer, perhaps
then it can afford anger.
AT: Backlash
Race-based jury nullification wouldn’t cause backlash
Butler 95 Paul Butler (lawyer, former prosecutor, and current law professor of Georgetown University Law Center). “Racially Based Jury Nullification: Black Power in the Criminal Justice System.” 105 Yales Law Journal. 677 (1995). http://kemetrise.sytes.net:8245/butler.pdf
What if white people start nullifying too? One concern is that whites will nullify in cases of whiteon-black crime. But white people do this now. The white jurors who acquitted the police officers who beat up Rodney King are a good example. There is no reason why my proposal should
cause white jurors to acquit white defendants who are guilty of violence against blacks any more
frequently. My model assumes that black violence against whites would be punished by black
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5 Aff
jurors; I hope that white jurors would do the same in cases involving white defendants. If white
jurors were to begin applying my proposal to cases with white defendants, then they, like the
black jurors, would be choosing to opt out of the criminal justice system. For pragmatic political
purposes, that would be excellent. Attention would then be focused on alternative methods of
correcting antisocial conduct much sooner than it would if only African-Americans raised the
issue.
5.0.5 LGBT Nullification
General
Nullification is an important form of resistance against anti-LGBT criminal justice policies
Goodman 15 Nathan Goodman (Fellow at the Fully Informed Jury Association). “Queer Liberation and Jury Nullification.” Fully Informed Jury Association. 12 June 2015. http://fija.org/2015/06/12/queerliberation-and-jury-nullification/
It’s June, and for the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community, that
means it’s Pride month. All around the world throughout June, pride parades and pride festivals celebrate our identities, our lives, our culture, our progress in smashing stigmas, and our
resistance to oppression. That last part, resistance, is absolutely crucial. Pride is held in June in
commemoration of the Stonewall Riots of 1969. After police raided the Stonewall Inn, a gay bar
in New York’s Greenwich Village neighborhood, patrons fought back. At the time, homosexuality and gender non-conformity were overtly criminalized. Police inspected the genitals of bar
patrons dressed in feminine attire, and arrested drag queens and cross dressers. The officers also
frisked and groped lesbian patrons. That night, the queer and trans people at the Stonewall Inn
did not accept the coercion and abuse they faced from the police. They fought back. Their acts
of defiant self-defense against unjust state violence that night sparked the modern gay liberation
movement. Every pride festival and pride parade is a celebration of resistance to an unjust criminal justice system. While queer and trans people are no longer explicitly criminalized under the
letter of the law, they still face unjust state violence and criminalization. Officers profile transgender women of color as sex workers and frequently arrest them on charges of solicitation. Queer
and trans people who defend themselves from hate crimes, such as CeCe McDonald and the
New Jersey Four, are themselves charged with violent crimes and incarcerated. LGBTQ homeless
youth find themselves arrested for “quality of life” crimes such as sleeping in public, panhandling,
and a variety of other crimes that primarily exist to criminalize the poor. Once they’re incarcerated, members of the LGBTQ community face outright brutality in prison. A 2007 study found
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5 Aff
that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent
reporting being sexually assaulted.” This same study found that 67% of inmates who identified
as LGBTQ reported being sexually assaulted while incarcerated, a rate 15 times more prevalent
than that of the general inmate population. Transgender women are often incarcerated alongside
male inmates and guards, who rape and abuse them. Supposedly to protect them from this violence, they can be sent to solitary confinement, which is widely recognized as a form of torture.
One tactic that can be used to impede this state violence against queer and trans people is jury
nullification. Rather than merely evaluating the evidence to determine whether a defendant has
violated a law, jurors can vote “not guilty” when they believe the law is unjust or unjustly applied.
Jury nullification is exercising conscience rather than helping the state unjustly cage human beings. Adrien Leavitt argues in Queering Jury Nullification that the LGBTQ community and our
allies should use jury nullification “as a tool to subvert the criminal punishment system in order
to fight against structural racism, protest the policing of deviant sexual and gender identities, and
reduce the violence perpetrated against queer people by the criminal punishment system.” When
queer homeless people are on trial for survival crimes, jurors can vote Not Guilty. When queer
and trans people are charged with homicide for defending themselves from hate crimes, jurors
can vote Not Guilty. When trans women of color are charged with solicitation, jurors can vote
Not Guilty. Most decisions in the criminal justice system are made by government employees
such as police, judges, and prosecutors. They face perverse political incentives that push them to
participate in state violence against the most marginalized people in our society. Jurors, on the
other hand, are ordinary citizens. Their verdict does not determine whether they are reelected
or whether they receive a promotion. The jury is where the people, the rabble, can disrupt the
process of state violence. It’s time for jurors to use their power to disrupt the criminalization of
queer and trans people. At pride festivals throughout the world, we commemorate the Stonewall
rioters for resisting such criminalization. As long as queer and trans people face criminalization,
jurors should stand for queer liberation, with the spirit of Stonewall in their hearts.
CJS Represses LGBT
The justice system has historically repressed queer people, and legal reform has failed
Leavitt 12 Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and
Transgender People.” Seattle Journal for Social Justice Volume 10, Issue 2, Article 2. April 2012.
http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/
A. The History of Queer Criminalization. Queer people are “disproportionately ensnared in the
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criminal legal system” due to the state’s systematic policing of sexual and gender deviance, which
penalizes those who do not fit within heteronormative sexualities and gender identities.167 This
severe criminalization results from the coalescence of gender, sexuality, class, and race, which
“collide with harsh penalty policy and aggressive law enforcement.”168 Of course, not all queer
people experience the stigma of criminalization and the resulting violence of the criminal punishment system in the same way. As Joey Mogel, Andrea Ritchie, and Kay Whitlock articulate
in their book, Queer (In)Justice, “race, class, and gender are crucial factors in determining how
and which queers will bear the brunt of violence at the hands of the criminal legal system.”169
This difference accounts for discrepancies between the limited agenda of the mainstream gay
rights movement and the radical queer agenda; the former has been almost exclusively focused
on issues that affect its white, affluent donor base and favors “assimilation into the racial and
economic status quo over challenges to the systemic violence and oppressions it produces.”170
Indeed, the mainstream movement’s failure to address the goals of anti-racism, feminism, and economic justice reinforces institutions that subordinate people of color, women, poor people, and
non-hetero-normative queers.171 As feminist and critical race theorist Professor Angela Harris
describes in her article, From Stonewall to the Suburbs? Toward a Political Economy of Sexuality, legal reform, such as that sought by the mainstream gay rights agenda, only accomplishes
“preservation-through-transformation” rather than transformative change.172 Specifically, when
subordinated groups resist their domination primarily through calls for legal reform, subsequent
change rarely addresses the oppression; instead, reform “changes the system just enough to justify
and preserve the status quo.”173 The gay liberation movement, which has since been co-opted by
the mainstream gay movement and rebranded as the gay rights movement, did not start as an
assimilation-based quest for equality; instead, it started as a bloody resistance to police brutality.174 In August 1966, a group of transgender women of color at the Compton Cafeteria in the
Tenderloin District of San Francisco fought back when police tried to arrest them for simply being
at the café.175 Dubbed “drag queens” and gay “hustlers,” these trans-women were often targeted
by the police and subsequently subjected to harsh and violent treatment.176 On the night of the
Compton Cafeteria riots, an officer entered the café and grabbed one of the “queens,” who threw a
cup of coffee in his face.177 Mayhem erupted and, over the course of the night, the trans-women
kicked the cops with their high-heels, smashed windows, broke furniture, and even set fire to a
car.178
72
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Prison Represses LGBT
Queer people face severe physical and sexual violence in prison
Leavitt 12 Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and
Transgender People.” Seattle Journal for Social Justice Volume 10, Issue 2, Article 2. April 2012.
http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/
Examples of violence against queers in prison are horrific and endless. In 2008, at Virginia’s Fluvanna Correctional Center for Women, the state’s largest women’s prison, corrections officers
rounded up prisoners who appeared unacceptably masculine—those who wore their prison uniforms loose fitting or their hair short—and moved them all to a separate unit dubbed the “butch
wing.”239 The segregated prisoners asserted that the move was to keep them away from others
and to prevent sexual and romantic relationships, while their legal advocates argued that it was to
penalize them for not conforming to heteronormative gender identities.240 Although officially
denied by the prison, reports surfaced that staff referred to the wing as the “little boys wing,” the
“locker room wing,” and the “studs wing” and subjected the inmates to much harsher treatment,
including verbal abuse, isolation, and humiliation.241 Another example of such mistreatment
occurred in 1999, when Roderick Johnson, a black gay man, was denied “safe housing” by Texas
prison officials due to his sexual orientation and “feminine appearance.”242 For eighteen months,
while housed in the general prison population, he was “repeatedly raped, masturbated on, bought
and sold by other prisoners to perform sexual acts, physically assaulted whenever he refused to
engage in coerced sexual activity, and forced to perform ‘wifely’ duties, such as cooking, cleaning,
and laundry.”243 Queer and trans youth in Louisiana prisons are subjected to “sexual-identity
confusion counseling,” are disciplined for “expressing any gender-nonconforming behaviors or
actions,” and are subjected to longer prison terms because they are viewed as “deviant” or “mentally ill.”244 In 2007, a transwoman died from treatable HIV-related infections after being denied
access to appropriate medical care while in immigration prison, despite weeks of excruciating illness and multiple requests for medical care.245 Before her death, fellow prisoners provided care
to the woman, eighty of whom ultimately refused to get in line for mandatory head count and began to chant “Hospital! Hospital! Hospital!”246 In South Carolina and Alabama, HIV-positive
prisoners are put in isolation upon intake, segregated into separate facilities for HIVpositive inmates, and prohibited from many prison jobs and programs.247 Transgender women, who are
often subjected to imprisonment with men, “are the ultimate target for sexual assault and rape” in
prison.248 Although prison policies prohibit all sexual activity, which ostensibly includes sexual
violence, “not only is forcible sex the currency in prisons, but the prison itself is predicated upon
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it.”249 “As a result, sexual violence is an entrenched and intractable feature of prison life,” particularly for queer and trans people.250 Furthermore, the intersection of the prison as a queer space
and racist presumptions that frame black men as “hypersexual, sexually degraded, and therefore
unrapeable and unworthy of protection from sexual violence” create a particularly violent and
unsafe situation for black queers.251 It is estimated that “one in four female prisoners[,] and one
in five male prisoners[,] are subjected to . . . sexual violence” in prison.252 In 2007 alone, the federal Bureau of Justice Statistics (BJS) reported that 4.5 percent of the prison population (60,500
imprisoned adults) and 12 percent of youth imprisoned in juvenile detention centers, suffered
sexual abuse while incarcerated.253 Moreover, as the authors of Queer (In)justice argue, “rape
victims of all sexualities are subsequently framed as gay, and thereby become targets for further
violence,” creating a continuing cycle.254
Nullification Solves Prison Violence
Nullification can reduce the number of queer people unjustly imprisoned
Leavitt 12 Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and
Transgender People.” Seattle Journal for Social Justice Volume 10, Issue 2, Article 2. April 2012.
http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/
Queer and allied jurors who are prison reformists should follow Butler’s three-part system of
strategic jury nullification. First, in cases of violent, inherently wrong crimes, queer jurors should
consider the case based strictly on the evidence presented and should subsequently convict a
queer defendant if they have no reasonable doubt that the defendant is guilty. Next, in cases
involving nonviolent, yet still morally reprehensible crimes, queer jurors should consider nullification, but without a presumption in favor of nullification. Finally, in cases of nonviolent, malum
prohibitum crimes, queer jurors should nullify.257 As with Butler’s call for black jury nullification, reform-based queer jury nullification will decrease the number of queer people imprisoned
for nonviolent and victimless offenses, such as those arrested as a result of “quality of life” policing regimes. In these cases, queer jurors and their allies can begin to ameliorate the violence
experienced by queer and trans people in prisons.
74
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Radical Activism is Key
Only radical use of jury nullification can challenge the anti-queer prison system
Leavitt 12 Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and
Transgender People.” Seattle Journal for Social Justice Volume 10, Issue 2, Article 2. April 2012.
http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/
More expansively, queer jurors who are prison abolitionists can use jury nullification to effect
transformative change. Simply put, queer abolitionist jurors should always nullify. In this application, jury nullification becomes a highly effective tool to subvert the racist, homophobic, transphobic, violent, and unjust criminal legal system. While this conception of jury nullification is
more expansive than Butler’s—and therefore may exceed the logic used by him to show that black
jury nullification is morally permissible—abolition-based queer jury nullification is nonetheless
morally justifiable. In fact, abolition-based queer jury nullification furthers Butler’s primary goal
of reducing the burden of imprisonment on vulnerable communities. Indeed, as highlighted
previously, the collateral consequences of imprisoning queer and trans people are intolerably severe and can only be remedied by the abolishing the prison system and replacing it with a more
humane and healing method of addressing antisocial behavior.258 Like black jury nullification,
queer jury nullification is morally justifiable due to the continuing and systematic failure of the
democratic system in the United States to protect queer people, typified by the criminalization of
queer identities. Queer people and their sympathizers should not be morally obligated to enforce
a system that perpetrates violence on them and members of their community. While the ideal
of the “rule of law” suggests neutral interpretation and application, in reality this is impossible
to achieve. As a result, the law cannot lead to justice in every case, making queer jury nullification appropriate to ameliorate the deeply held stereotypes and assumptions made about those
who refuse to subscribe to heteronormative sexualities and gender identities. Additionally, queer
people’s underrepresentation as legal decision makers had the result of creating a legal system
reflecting norms that were not assented to by queers and other political minorities. As in the
Magna Carta era, without another method of changing these unjust laws, jury nullification is the
appropriate avenue. Finally, regardless of the facts of the case or the law at issue, queer jury nullification is morally justified simply to avoid sending queer people into inherently violent prisons
where they are likely to be sexually and physically abused, subjected to verbal harassment and
degradation, and forced to endure the physiological punishment of nearly constant segregated
isolation. While reform-based jury nullification may appear less extreme, it fails to accomplish
transformative change because it merely results in “preservation- through-transformation.”259
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This type of legal reform changes the system just enough to quell the anguish of the oppressed.
As a result, while reform-based queer jury nullification may change the system minimally and
will avoid the imprisonment of some queer and trans people, it will not truly undermine or transform the oppressive criminal legal system. Prison abolition, on the other hand, is a prospect that
must be a priority of everyone who wishes to live in a more humane, just, and safe society. Indeed,
abolition-based queer jury nullification is just one tool to undermine the racist and violent prison
system and ultimately fight for prison abolition.
Nullification is Effective
Jury nullification is an effective tool for combatting heterosexism in the legal system
Leavitt 12 Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and
Transgender People.” Seattle Journal for Social Justice Volume 10, Issue 2, Article 2. April 2012.
http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/ Although the work of mainstream
LGBT organizations does not adequately address the needs of queer and trans people, the radical
queer movement is fighting against state-sanctioned violence through community organizing
and activism.33 Within this movement, individual queers and their like-minded allies can
ameliorate the harm imposed by the criminal legal system through the use of a little known
avenue: jury nullification. Jury nullification is the process by which a jury ignores the evidence
in a criminal trial and acquits an otherwise guilty defendant because the jury objects to the
law or its application to a particular defendant.34 By refusing “to be bound by the facts of
the case or the judge’s instructions regarding the law, . . . the jury votes its conscience.”35
Although jury nullification has a long history predating the United States Constitution, the
doctrine was reimagined and reinvigorated in the 1990s in response to the racist criminalization
and mass incarceration of black people in the United States.36 In his groundbreaking article,
“Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Paul Butler, a
professor at George Washington University Law School and former federal prosecutor, called
upon black jurors to subvert America’s racist criminal legal system through jury nullification.37
Specifically, Butler urged black jurors to nullify in cases where black defendants are on trial for
certain nonviolent offenses, often thought of as “victimless” crimes.38 Butler asserted that the
black community is best suited to decide what conduct, when perpetrated by members of its
community, should be punished; thus, black jurors should resist finding black defendants guilty
for these nonviolent crimes under unjust laws formulated by a legal system controlled by white
lawmakers and law enforcers.39 Heeding Butler’s call for black jury nullification, black jurors can
76
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safely reduce the number of black people incarcerated, help alleviate the suffering of the black
community by reducing the number of its members who are sent to prison, and stand up against
fundamentally racist laws.40 Queer people and their allies should adopt and expand Butler’s
proposal as a tool to subvert the criminal punishment system in order to fight against structural
racism, protest the policing of deviant sexual and gender identities, and reduce the violence
perpetrated against queer people by the criminal punishment system. Through this updated
call for queer jury nullification, which is focused on the transformative goal of prison abolition,
queer jurors and their allies will begin to ameliorate the harmful effects of the criminalization of
non-heteronormative sexual and gender identities and simultaneously protect members of their
community from the violence of prisons.41
5.0.6 AT: Unjust Jurors
AT: Misuse
Juries are unlikely to abuse nullification
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
Finally, the structure of jury authority implies a faith that juries are both trustworthy and cautious
with the nullification power. The rule that verdicts of acquittal are unreviewable empowers the
jury and privileges its judgments over those of judges. It thereby implies a prudential trust in
the jury even to make decisions such as trading off convictions for perjury or privacy violations.
Particularly on the issue of perjury, the jury traditionally has been viewed as fully competent to
make that determination, in as much as it is their task to determine witness credibility.“’ Moreover,
we assume juries will be cautious with nullification power because they are instructed not to use
it, or at least are not instructed that they have such power.1 2 Thus juries are likely to require
substantial reasons, like serious official misconduct, before breaching the instruction to return a
verdict of not guilty when the evidence overcomes reasonable doubt.11 3 The trust of juries that
is built into the structure of their authority seems plausible given the jury’s local and majoritarian
nature. Juries are, after all, a group of local citizens who must live in the community into which
they either might set criminals free or live with officials who violate rules. In light of that, the
jury seems an appropriately cautious body to trust with the power to make such trade-offs. The
point remains, however, that regardless of whether jurors are good at using nullification powers
to punish official wrongdoing, nullification in such cases, done for such reasons, is consistent with
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the rule of law.
Not Relevant to Topic
The fact that some jurors use nullification unjustly has no bearing on what a just juror ought
to do
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
Not all instances of jury nullification are as salutary as the case of John Peter Zenger. During
America’s more racist past, southern juries, out of sympathy for the defendants, sometimes voted
to acquit those guilty of hate crimes. It is impossible to say how many cases of jury nullification
involve this sort of abuse of the jury’s power and how many involve morally reasonable exercises
of the jury’s power. There is room for concern as to whether jury nullification is on the whole a
force for good or a force for evil.20 But while this concern might provide a reason for designing
institutions that render jury nullification less common, it is difficult to see how it could provide
a reason for an individual jury or jury member not to nullify the law. Suppose you are on a jury
in a trial in which the defendant is accused of violating an unjust law, and you are considering a
nullification vote. Your motivation is not racist, and you know that it isn’t. You know that your
motivation is the injustice of the law. It is difficult to see how the fact that some racist juries have
voted to acquit defendants who should have been punished negates the very strong reason that
you have, in this case, to acquit the defendant. The fact that others have done A for bad reasons
does not make it wrong for one to do A for good reasons. Consider again the example of the
gang of hoodlums. Suppose that you are just about to lie to the gang, when it occurs to you that
many people have lied for bad reasons. In fact, surely there have been more cases of corrupt
lying in human history than there have of morally justified lying. It would be absurd to suggest
that this historical fact somehow negates the reason that you have for lying in this case, or that
you are morally bound to always tell the truth merely because more lies have been harmful than
have been beneficial. A closely related objection to nullification holds that, if juries may nullify
the law to the benefit of the defendant, they may also nullify the law to the detriment of the
defendant–for instance, a jury may decide to convict a defendant because of personal antipathy
toward the defendant, or to convict on the basis of a lower standard of evidence than the legally
prescribed “reasonable doubt” standard. The only way to prevent this, it is urged, is to reject jury
nullification. Despite the confidence with which it is advanced, the logic of this argument is very
difficult to make out.21 The premise seems to be that if nullification is justified to prevent unjust
78
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punishments, then nullification would also have to be justified in all other cases. Compare the
following claims: @ If one may lie to save a friend from unjust violence, then one may also lie to
defraud innocent people of their savings. @ If it is permissible to break a promise in order to aid
someone in need, then it is permissible to break a promise in order to cause pain and suffering
to others. @ If it is permissible to kill in self-defense, then it is permissible to kill someone out
of hatred for their race. All of these conditionals are clearly false. Pace Kant, there are moral
distinctions among lies–some reasons for lying are good reasons, while others are not. We accept
this point for nearly any other type of action. It is thus obscure why, when we come to consider
jury nullification, we should suddenly declare that no moral distinctions exist.22
AT: Racist Juries
Historical examples of racism show problems with the juries, not with nullification
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
The sorts of verdict that many seem to consider typical of nullification are the acquittals by allwhite, southern juries of white defendants who killed, assaulted, or harassed civil rights activists
or African Americans generally.167 None of the factors that defined cases discussed above-official
misconduct, an unjust law, or unjust application of law-are present in these cases. Juries apparently (and sometimes explicitly) just refused to apply a statute to a defendant whose case clearly
fit under it, and whose guilt was established beyond reasonable doubt. They did so for clear reasons of racial prejudice,168 and thus breached any accepted conception of the rule of law. One
observation with respect to these verdicts is that they are not proper examples of jury nullification
because the juries themselves were illegitimate. 169 The juries rendering those decisions themselves violated the rule of law in the manner of their composition: African Americans were widely
excluded from jury service in southern states by numerous barriers including voter registration
restrictions and racially biased use of peremptory strikes.170 Our contemporary conception of
impartial juries defines them as synonymous with representative cross-sections of the community.171 Excluding whole racial groups from participation in jury service (arising in large part
from exclusion from voting rolls and from biased use of unregulated peremptory strikes) renders
the jury unlawful. The jury’s verdict did not conform to the rule of law, but neither did the jury
itself.I” Juries drawn from the entire community likely would have resulted at least in hung juries
rather than complete acquittals.173
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Neg Doesn’t Solve
Alternatives to nullification would not reduce the risk of bias
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
Optimistically, then, one might hope that such decisions are rare if not nonexistent among properly constituted juries. But what if such verdicts do occur, even by legitimate juries? There are
certainly localities from which one could legally impanel an all-white jury using conventional
methods of random jury venire selection and peremptory strikes. 174 What if such a jury nullifies prosecution of a guilty defendant on motivations like those that inspired not-guilty verdicts
for white defendants in the civil rights era? More broadly, what if any jury, regardless of its demographic characteristics, nullifies a prosecution based on pure prejudice or animosity rather than
considerations of law and principle? Such verdicts violate the rule of law. Yet the interesting observation comes from the circumstances in which such verdicts arise. Historical examples of nullification trends, such as those by civil-rights-era white juries in the South, seem to occur largely
when local norms and sentiments strongly conflict with statutes and principles reflecting the consensus of the larger, national community.1 75 In such a context, abolishing juries, or at least their
nullification power by instituting judicial review of acquittals, would not solve the problem of the
collapse of the rule of law.17 6 To see why, consider the institutional alternatives to the jury: from
what other decisionmakers can we expect lawful, less biased decisions? Many southern state and
local legal institutions through the civil rights era demonstrated themselves unable or unwilling
to administer nonracist justice.177 Juries were only one manifestation of biased decisions arising
from immoral local norms. Local judges, as well as law enforcement officials and prosecutors,
demonstrated equally blatant racial bias.178 Judges violated the rule of law roughly as much as
juries. 179 Southern justice administration during that period demonstrates not that juries are a
particularly bias-prone decisionmaker, but that the rule of law is contingent upon a political and
moral culture, including popular culture, for its existence. It demonstrates, in other words, that
recent reconceptions of the rule of law from a formalist, rules-oriented notion to one of a legal
system integrated with and a product of social practices, are descriptively accurate. Formal rules
against murder and assault were insufficient to ensure the rule of law in the South. Neither does
the formal structure of institutions-employing a trained judge or lay jurors, for instance-guarantee
(or seemingly even greatly improve the odds for) meaningful rule of law. Such examples of judges
failing to work within the rule of law do not give rise to arguments for abolishing judges or for
restructuring their authority.180 It is not clear, then, why occasional instances of unjustifiable
80
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nullification should call into question the jury’s legitimacy or the scope of its unreviewable authority. One might again make a prudential argument: the odds are better that judges will more
often adhere to the rule of law than that juries will. That claim, I suggest, is simply not substantiated and probably arises from the distorting nature of anecdotal evidence; instances of seemingly
egregious jury nullification attract attention more readily than judicial decisions. 181 There is a
class of nullification verdicts that violates the rule of law; decisions by southern white juries are
one example of that class. Closely examined, however, those instances are likely to involve circumstances in which the rule of law would fail regardless of juries’ involvement. It fails not for
lack of authority by legally trained jurists, but for lack of a supportive, sustaining political and
moral culture.182
Only as a Last Resort
Nullification is only used in cases of last resort where it is necessary
Brown 97 Darryl K. Brown (Assistant Professor, University of Dayton School of Law). “Jury
Nullification Within the Rule of Law.” 81 Minnesota Law Review, 1149 1996-1997. (1997).
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10395
Our ambivalence about jury authority also works to encourage nullification only in compelling
cases. Juries are not told of their power to nullify; they may be told that they must obey and apply
the law given to them by the judge. Yet we reject any remedy (like judicial review) for nullification
verdicts. We discourage nullification at the same time we preserve it. Nullification is illicit yet
strongly protected. This contradiction works as a strategic compromise: juries sometimes figure
out their nullification power and choose to use it, but their lack of explicit knowledge presumably
serves to encourage them to reserve it for the most serious cases. 97 In many of those cases,
nullification occurs within the rule of law, because the circumstances that prompt a jury to go
beyond its explicit instructions are often grave matters of justice arising from a great disparity
between the statute or its application and other sources of law and social convention. These are
damned good reasons, and reasons found within acknowledged sources of law. Those cases are
usually ones in which other institutions and officials have failed to uphold the rule of law, and the
jury’s nullification verdict is the last resort for correcting or condemning such breaches. Far from
leading to anarchy, many nullification decisions arise in compelling circumstances that convince
twelve citizens, inclined to follow the law, unanimously to ignore literal statute application. It
likely signals failure of law either by other institutional players or broadly within a society.
81
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5.0.7 AT: Lawlessness/Anarchy
AT: Lawlessness (General)
Even the worst abuses of nullification don’t cause lawlessness
Scheflin and Van Dyke 72 Alan Scheflin (Santa Clara University School of Law) and Jon
Van Dyke.
“Jury Nullification: The Right to Say No.”
45 S. Cal.
L. Rev. 168 (1972),
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1686&context=facpubs
The specter of a “law-less” society is also absurd because juries now possess power to nullify (and
thus bring about this alleged evil) making the real issue whether the judge should instruct them
that they have the right to do so. The numerous occasions in the South in which white juries acquit
white defendants of crimes against Blacks attest to this power in a very dramatic way. While this
aspect of jury power may seem deplorable because crimes of personal violence go unpunished,
there has been no further movement towards anarchy and the law-less society. Thus, even the
drastic cases showing jury nullification in its worst light do not lead to the conclusion that the
administration of justice will be generally subverted by revolutionary jury conduct. The solution
to the white southern jury problem is not removal of nullification but rather education of the
community and greater participation in the administration of justice by disenfranchised groups.
The need for nullification decreases to the extent that the community participates in the processes
of law and its enforcement. The white-man’s court convicts Blacks and acquits whites because the
legal apparatus is not responsive nor accountable to black persons in the community. If Blacks
had a role in the court structure and law enforcement agencies, the specter of racism inherent in
these acts of jury nullification would disappear. 14 9
Solves Lawlessness
Jury discretion reduces lawlessness by fostering trust in the law
Scheflin and Van Dyke 72 Alan Scheflin (Santa Clara University School of Law) and Jon
Van Dyke.
“Jury Nullification: The Right to Say No.”
45 S. Cal.
L. Rev. 168 (1972),
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1686&context=facpubs
If jury discretion leads to a lawless society, as some critics of nullification have argued,- what does
no discretion lead to? Several years ago the New York police went on “strike” on the Long Island
Expressway and ticketed every motorist failing to observe any traffic regulation presently on the
books. Though the police did not ticket non-violators, there was still a great outcry against their
82
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5 Aff
conduct. While much of the wrath was vented on the devious tactic used to get the raises, much of
it was also against the lack of discretion in the enforcement of the laws. Without such discretion,
the legal system becomes a mockery. 5 But unlimited discretion in the hands of persons in power
can become despotic. Accountability of such discretion to the people is the fundamental principle
of democracy. It is also the underlying rationale for jury nullification.55
Not Unique to Juries
Jury nullification is no more lawless than every other aspect of the justice system
Huemer 14 Michael Huemer (Professor of philosophy at UC Boulder; BA, UC Berkeley;
PhD, Rutgers). “The Duty to Disregard the Law.” Based on a 2012 lecture series. 2014.
philpapers.org/archive/HUETDT.pdf
The second and more important interpretation is that jury nullification is inconsistent with the
rule of law, understood as the principle that the justice system should operate entirely by definite, known rules, as opposed to subjective human judgment. Jury nullification decreases the
predictability of trial outcomes, and it results in some defendants being treated unequally: of two
defendants guilty of the same crime, one might be convicted and the other go free due to differing jury assessments regarding the justice of the law under which the defendants were charged.15
Some critics warn that tolerance for jury nullification would therefore lead to “anarchy.”16 This
argument is very difficult to make out in a plausible manner. When a juror is faced with a defendant prosecuted for blameless lawbreaking, it is very difficult to sympathize with the idea that the
juror should vote to inflict unjust harm on this individual in order to ensure uniformity in the
imposition of injustice across all similar defendants. There are at least three reasons for this. One
reason is that the justice system is rife with both unpredictability and subjective judgment, quite
apart from jury nullification. The majority of crimes are never solved by the police, so one who
violates the law cannot know whether he will ever be caught.17 Police are allowed discretion in deciding whether to make an arrest, and prosecutors are allowed discretion in deciding to whether
to charge suspects, even when there is sufficient evidence to support a charge. When suspects are
prosecuted, different juries may make different judgments about the factual evidence, rendering
jury trial outcomes unpredictable even without nullification. No one claims that any of these phenomena render our system “anarchic” or “lawless.”18 The marginal increase in unpredictability
due to a given jury’s decision to nullify is negligible and hardly likely to push society over the
threshold into anarchy. Second, even if one had the power to eliminate all such uncertainties, it
is absurd to prefer that all members of some group suffer severe and unjust harms rather than that
only some do, merely on the grounds that the uniform imposition of injustice is more predictable
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or egalitarian than nonuniform injustice. Consider an analogy. Suppose you know from recent
newspaper reports that several gay people have already been beaten by homophobic hoodlums.
When you encounter the gaybashing gang, should you instruct the gang to beat your friend, so
as to ensure uniformity of treatment? Surely one should not cause an individual to suffer serious
unjust harms merely because others in your situation have done so.
AT: Court Legitimacy
Court legitimacy is tenuous
Scheflin and Van Dyke 72 Alan Scheflin (Santa Clara University School of Law) and Jon
Van Dyke.
“Jury Nullification: The Right to Say No.”
45 S. Cal.
L. Rev. 168 (1972),
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1686&context=facpubs
The ability of our court system to deliver justice, or even the appearance of justice, is coming under
increasing attack by greater numbers of people. Institutional and cultural biases in a supposedly
neutral structure,178 questionably ethical judicial practices which receive mass media attention,
widespread dissatisfaction with the substantive results reached by many courts, unequal access to
judicial forums by the disenfranchised in our society, intensified use of the machinery of law by
the government to stifle vocal opposition, repressive sanctions placed upon lawyers defending the
poor, oppressed, or politically unpopular, 170 increasing numbers of disrupted trials and more
frequent disrespect for court officials, overzealous judicial use of the contempt power,8 0 are all
signposts pointing the way to a disintegration of the legal process. In the words of William Kunstler: … there is the disquieting thought that the legal subsystem itself is nothing more than the
new tyrant’s most reliable weapon to ward off any seemingly potent threat to the continuation of
yesterday into tomorrow. If the injunction and the conviction can achieve the same results as the
rope and sword, judges are, after all, far more comfortable companions than executioners. And
in the last analysis, due process of law is exactly what the high and mighty say it is.181 The viability of the court system can only be maintained if the court as an institution is accountable to the
people under the tenets of the democratic theory under which it was established. Preservation
of the right of trial by jury, and with it the right to nullify on the basis of conscience in the name
of the community, are essential to a restoration of the vaunted stature the judicial system should
occupy.
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5.1 Aff Mechanisms of Implementation
5.1.1 Courts can encourage or discourage nullification in various ways.
Aaron McKnight, [J.D., Reuben Clark Law School, BYU], “Jury Nullification as a Tool to Balance
the Demands of Law and Justice,” BYU Law Review, Vol. 1103, Issue 4, 2014.
Courts possess several methods by which they can either encourage or discourage nullification.
An understanding of these methods deepens understanding of how courts have treated jury nullification in the past and helps to frame arguments about the validity and efficacy of jury nullification. Specifically, these methods include jury instructions, closing arguments, voir dire, enforcement of the jury’s oath to follow the law, and admitting evidence in support of a nullifying
theory.
5.2 Inherency
5.2.1 Since Sparf, trial judges have refused to inform juries about their power of
nullification and forbid counsel to raise the issue.
Monroe H. Freedman, [Professor of Law, Maurice A. Deane School of Law, Hofstra University],
“Jury Nullification: What It Is, And How To Do It Ethically,” Hofstra Law Review, Vol. 42, 2014.
The Framers of the Constitution understood that the right to trial by jury includes the jury’s power
to prevent unjust convictions and unjust punishments through jury nullification.99 A century
later in Sparf, the Supreme Court acknowledged the original intent regarding nullification.100
Nevertheless, the Court held in Sparf that a jury can properly be kept ignorant of its power of
nullification, a course that undermines the original intent recognizing nullification as an essential
aspect of trial by jury.101 Since Sparf, virtually all trial judges have refused to inform juries about
their power of nullification and, when asked in a motion in limine, they forbid counsel to raise
the issue.102
5.2.2 Virtually every court has held that defendants to not have a right to have a jury
told of its power to nullify.
Julie Seaman, [Associate Professor of Law, Emory University] “Black Boxes: fMRI Detection and
the Role of the Jury,” Akron Law Review, Vol. 42, 2015.
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Judges are not divided. Virtually every court that has addressed the issue has held that defendants
do not have a right to have the jury told of its power to nullify, whether through argument or
judicial instruction.21 Indeed, several courts have excused jurors who admitted on voir dire to
being aware of the power to nullify, and the Second Circuit has held that a juror’s unwillingness
to follow the court’s instructions on the law is an appropriate ground for disqualifying the juror
in the midst of the deliberation.22 Many standard jury instructions inform jurors that it is their
duty to follow the law as charged by the court.
5.3 Discretion
5.3.1 Jury nullification is an exercise of discretion in the administration of law and
justice.
Alan W. Scheflin, [Associate Professor of Law, Georgetown University Law Center], “Jury Nullification: The Right to Say No,” 45 S. Cal. L. Rev. (1972).
Proper understanding of the concept of jury nullification requires it to be viewed as an exercise
of discretion in the administration of law and justice. Jury discretion in this context, may be a
useful check on prosecutorial indiscretion. No system of law can withstand the full application
of its principles untempered by considerations of justice, fairness and mercy. Every technical
violation of law cannot be punished by a court structure that attempts to be just. As prosecutorial
discretion weeds out many of these marginal cases, jury discretion hopefully weeds out the rest.
5.3.2 Jury nullification corrects the administration of the law.
Alan W. Scheflin, [Associate Professor of Law, Georgetown University Law Center], “Jury Nullification: The Right to Say No,” 45 S. Cal. L. Rev. (1972).
“Jury lawlessness” according to Dean Roscoe Pound, “is the great corrective” in the administration
of law. 47 Thus, the jury stands between the will of the state and the will of the people as the last
bastion in law to avoid the barricades in the streets. To a large extent, the jury gives to the judicial
system a legitimacy it would otherwise not possess. Judge control of jury verdicts would destroy
that legitimacy A juror who is forced by the judge’s instructions to convict a defendant whose
conduct he applauds, or at least feels is justifiable, will lose respect for the legal system which
forces him to reach such a result against the dictates of his conscience. The concept of trial by
a jury of one’s peers is emasculated by denying to the juror his right to act on the basis of his
personal morality. For if the jury is the “conscience of the community,”48s how can it be denied
86
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5 Aff
the right to function accordingly? A juror compelled to decide against his own judgment will
rebel at the system which made him a traitor to himself. No system can be worthy of respect if it
is based upon the necessity of forcing the compromise of a man’s principles. 49
5.3.3 Without discretion, the legal system becomes a mockery.
Alan W. Scheflin, [Associate Professor of Law, Georgetown University Law Center], “Jury Nullification: The Right to Say No,” 45 S. Cal. L. Rev. (1972).
If jury discretion. leads to a lawless society, as some critics of nullification have argfied,- what does
no disretigsi lead to?. Several years ago the New York police went on “strike” on- the, L6ng.island
Expressway and ticketed every motorist failing to observe any traffic regulation presently on the
books. Though the police’did not ticket ndn-violators, there was still a great outcry against. their
conduct.s While much of the wrath was vented on the devious tactic used to get the raises, much
of it was also against the lack of discretion in the enforcement of the laws. Without such discretion,
the legal system becomes a mockery. 5 But unlimited discretion in the hands of persons in power
can become despotic. Accountability of such discretion to the people is the fundamental principle
of democracy. It is also the underlying rationale for jury nullification.55
5.4 Constitution
5.4.1 Jury nullification is justified by the sixth amendment right to trial by jury.
Alan W. Scheflin, [Associate Professor of Law, Georgetown University Law Center], “Jury Nullification: The Right to Say No,” 45 S. Cal. L. Rev. (1972).
Lawrence Velvel argues that the notion of jury nullification is “a kind of repository of grass roots
democracy” since ordinary citizens can effectively say no to their rulers when their policies and
laws are no longer in touch with the will of the people. 65 This argument is strengthened by examination of the fundamental justification for the jury. In Duncan v. Louisiana,66 the Supreme
Court interpreted the sixth amendment right to trial by jury in these terms: A right to jury trial
is granted to criminal defendants in order to prevent oppression by the Government. Those who
wrote our constitutions knew from history and experience that it was necessary to protect against
unfounded criminal charges brought to eliminate enemies and against judges too responsive to
the voice of higher authority. The framers of the constitutions strove to create an independent
judiciary but insisted upon further protection against arbitrary action. Providing the accused
with the right to be tried by a jury of his peers gave him an inestimable safeguard against the
87
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5 Aff
corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge…. Fear
of unchecked power, so typical of our State and Federal Governments in other respects, found
expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. 7
5.4.2 Constitutional protections create a jury nullification power in three ways.
Aaron McKnight, [J.D., Reuben Clark Law School, BYU], “Jury Nullification as a Tool to Balance
the Demands of Law and Justice,” BYU Law Review, Vol. 1103, Issue 4, 2014.
Neither the United States Constitution31 nor judicial precedent32 explicitly authorizes jury nullification. However, as discussed in Part III below, juries have frequently employed nullification
throughout history, thus creating a precedential foundation on which to establish nullification’s
legality.33 Additionally, other constitutional protections inherent in a criminal defendant’s constitutional right to a trial by jury necessarily create a jury nullification power.34 Specifically, constitutional protections effectively create a jury nullification power in three ways. First, the jury
in a criminal trial has the right to render a general verdict. 35 Second, courts cannot direct a
jury to convict no matter how convincing the evidence. 36 Third, the Double Jeopardy clause
prevents acquittals from being reversed.37 Thus, practically speaking, a jury can nullify, and the
court cannot reverse its verdict.
5.4.3 The Framers intended to protect the right to jury nullification.
Monroe H. Freedman, [Professor of Law, Maurice A. Deane School of Law, Hofstra University],
“Jury Nullification: What It Is, And How To Do It Ethically,” Hofstra Law Review, Vol. 42, 2014.
As we have seen, even the Supreme Court in Sparf acknowledged that the constitutional guarantee
of trial by jury was motivated by the “popular importance” of “the independence of the jury in law
as well as in fact” at the time the Constitution was adopted.36 References to trial by jury during
that period, therefore, incorporated this understanding as an aspect of trial by jury. In discussing
the guarantee of trial by jury in criminal cases,37 Alexander Hamilton wrote in THE FEDERALIST that both the friends and adversaries of the proposed Constitution concurred in “the value
[that] they set upon the trial by jury.”38 “Or,” he added, “if there is any difference between them,
it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it
as the very palladium of free government.”39 Hamilton himself saw the jury as “a barrier to the
tyranny of popular magistrates in a popular government,” preventing “arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions,” which are the
88
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5 Aff
“great engines of judicial despotism.”40 That is, Hamilton recognized that the jury in a criminal
case is a safeguard against “judicial despotism,” preventing both unjust convictions and unjust
punishments.41
5.5 Check Against Power
5.5.1 Jury nullification is a way for a community to challenge oppressive power
structures.
Second, we assert that jury nullification is best understood as a community’s check on judicial,
prosecutorial, and police discretion. In communities where the population does not trust government and is estranged economically, culturally, or racially from it, nullification in the ordinary
criminal trial becomes an inchoate political act that challenges the legitimacy of government itself.
Jury nullification is one of the few ways through which a community can challenge the “power
structure” with an immediate impact.
5.6 Jury Instruction
5.6.1 Quantitative studies find that juries do function differently when given
nullification instructions.
Irwin A. Horowitz, [Department of Psychology, University of Toledo], “Law and Human Behavior,
Vol. 9, No. 1 (March 1985).
Do juries function differently when in receipt of nullification instructions? In the present study,
when in receipt of the radical nullification instructions, juries gave significantly different verdicts
than did their standard pattern instruction and Maryland instruction counterparts in the drunk
driving and euthanasia cases. In the drunk driving case, RNI juries were more conviction prone
than MI and SPI juries in the euthanasia case. The content analyses of the jury deliberation suggest
that RNI juries do function differently than MI and SPI juries. The content analyses must be
approached cautiously because, as Borgida (1980) has clearly noted, the analysis informs us as to
what is being discussed with what frequency, but does not clarify the impact such discussions may
have had on the outcome. For the purposes of the present study, however, the content analysis
confirms that RNI juries are in fact aware of the nullification instructions. The MI juries do not
appear to differ from the SPI juries in awareness of the nullification possibility inherent in their
instructions.
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5.6.2 Horowitz study methodology:
Irwin A. Horowitz, [Department of Psychology, University of Toledo], “Law and Human Behavior,
Vol. 9, No. 1 (March 1985).
Subjects. The subjects were 170 people drawn, with the permission of the administrative judge,
from the Lucas County, Ohio juror roles. They were contacted after their service and asked to
participate. They were paid $8.00, the current daily rate for juror service on the venire, for their
participation in one evening experimental session lasting approximately two hours. Design. The
design was a 3 x 3 factorial, combining three levels of insruction with three criminal cases. INDEPENDENT VARIABLE MANIPULATIONS A. Instructions. Three different levels of instructions will be employed. 1. Standard Pattern Instructions (SPI). These were taken from the Ohio
Pattern Juror Instructions1 and does not make reference to nullification. 2. Maryland Instructions (MI). This condition employed the Pattern Maryland Instructions containing a nullification
instruction. 3. Radical Nullification Instructions (RNI). These instructions were the most explicit
as to the jury’s nullification powers and were adapted from Van Dyke’s (1970) proposal
5.7 LGBTQ Aff
5.7.1 Jury nullification can be used to ameliorate the harm imposed by the criminal
legal system on the LGBTQ community.
Adrien Leavitt, [JD, Seattle University] “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People,” Seattle Journal for
Social Justice, Vol. 10, Issue 2.
Although the work of mainstream LGBT organizations does not adequately address the needs of
queer and trans people, the radical queer movement is fighting against state-sanctioned violence
through community organizing and activism.33 Within this movement, individual queers and
their like-minded allies can ameliorate the harm imposed by the criminal legal system through
the use of a little known avenue: jury nullification. Jury nullification is the process by which a jury
ignores the evidence in a criminal trial and acquits an otherwise guilty defendant because the jury
objects to the law or its application to a particular defendant.34 By refusing “to be bound by the
facts of the case or the judge’s instructions regarding the law, . . . the jury votes its conscience.”35
Although jury nullification has a long history predating the United States Constitution, the doctrine was reimagined and reinvigorated in the 1990s in response to the racist criminalization and
mass incarceration of black people in the United States.36
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5.7.2 Impact- queer and transgender people are subject to violence and inequality in
the criminal legal system.
Adrien Leavitt, [JD, Seattle University] “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People,” Seattle Journal for
Social Justice, Vol. 10, Issue 2.
The experiences of these seven women are not unusual or isolated incidents for queer people,
particularly queer people of color. Queer and transgender people,19 especially ones of color,
experience the “continu[ed] institutionalization of severe, persistent, and seemingly intractable
forms of violence and inequality” within the criminal legal system.20 Furthermore, queer lives are
criminalized through social constructions of categories of crime, which dictate that heteronormative sexual and gender expressions are acceptable, while deviant sexual and gender identities are
presumptively criminal.21 As a result, queer people are disproportionately entangled in the criminal legal system, including being disproportionately imprisoned.22 The criminalization of queer
identities is particularly harmful for black queers, who experience the intersection of the criminalization of queer people and the long history of criminalization of blacks, which originated during
the period of slavery and evolved through the Black Codes, convict lease system, Jim Crow laws,
and the rise of the prison-industrial complex.23
5.7.3 Queer identities have become violently criminalized.
Adrien Leavitt, [JD, Seattle University] “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People,” Seattle Journal for
Social Justice, Vol. 10, Issue 2.
Examples of criminalization of queer identities are abundant. Queer people are profiled by the
police and arrested at an alarming rate under the pretext of enforcing laws such as quality of life,
lewd conduct, public indecency, and loitering with the intent to solicit.24 Despite the United
States Supreme Court’s 2003 decision in Lawrence v. Texas, 25 in which it struck down sodomy
laws and held that sexual intimacy at home between consenting adults is constitutionally protected, queer people continue to be arrested and prosecuted under archaic “Crimes Against Nature” laws.26 Such laws outlaw engaging in oral or anal (but not vaginal) sex for a fee and, upon
conviction under these laws, require registration as a sex offender.27 Queer people are also often
victimized by the police even when they are calling for help, particularly in instances involving
same-sex domestic violence where police assume “mutual combat” is at play rather than domestic violence or determine the perpetrator based on heteronormative presumptions about gender
roles.28 Once they become criminal defendants, queer people are plagued by archetypes that
91
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define them as sexually deviant and sadistically violent.29 In prison, queer people experience extremely high rates of verbal, physical, and sexual abuse; indeed, sexual orientation is the single
greatest determinant of sexual abuse in prisons.30 While these issues are deserving of attention,
mainstream gay activism31 is focused on obtaining legal rights that benefit the most privileged
members of the LGBT community, such as access to marriage and inclusion in hate crime legislation. This leaves the most vulnerable members of the queer community, particularly ones of
color, with urgent and life-threatening problems.3
5.7.4 Queer and allied jurors should follow a three-part system of strategic jury
nullification.
Adrien Leavitt, [JD, Seattle University] “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People,” Seattle Journal for
Social Justice, Vol. 10, Issue 2.
Queer and allied jurors who are prison reformists should follow Butler’s three-part system of
strategic jury nullification. First, in cases of violent, inherently wrong crimes, queer jurors should
consider the case based strictly on the evidence presented and should subsequently convict a
queer defendant if they have no reasonable doubt that the defendant is guilty. Next, in cases
involving nonviolent, yet still morally reprehensible crimes, queer jurors should consider nullification, but without a presumption in favor of nullification. Finally, in cases of nonviolent, malum
prohibitum crimes, queer jurors should nullify.257 As with Butler’s call for black jury nullification, reform-based queer jury nullification will decrease the number of queer people imprisoned
for nonviolent and victimless offenses, such as those arrested as a result of “quality of life” policing regimes. In these cases, queer jurors and their allies can begin to ameliorate the violence
experienced by queer and trans people in prisons.
5.7.5 Queer abolitionist jurors should always nullify.
Adrien Leavitt, [JD, Seattle University] “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People,” Seattle Journal for
Social Justice, Vol. 10, Issue 2.
More expansively, queer jurors who are prison abolitionists can use jury nullification to effect
transformative change. Simply put, queer abolitionist jurors should always nullify. In this application, jury nullification becomes a highly effective tool to subvert the racist, homophobic, transphobic, violent, and unjust criminal legal system. While this conception of jury nullification is
92
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more expansive than Butler’s—and therefore may exceed the logic used by him to show that black
jury nullification is morally permissible—abolitionbased queer jury nullification is nonetheless
morally justifiable. In fact, abolition-based queer jury nullification furthers Butler’s primary goal
of reducing the burden of imprisonment on vulnerable communities. Indeed, as highlighted previously, the collateral consequences of imprisoning queer and trans people are intolerably severe
and can only be remedied by the abolishing the prison system and replacing it with a more humane and healing method of addressing antisocial behavior.258
5.8 Political Trials
5.8.1 Jury nullification is especially crucial for political trials.
Alan W. Scheflin, [Associate Professor of Law, Georgetown University Law Center], “Jury Nullification: The Right to Say No,” 45 S. Cal. L. Rev. (1972).
The necessity for jury nullification becomes especially crucial when political trials are brought. 5
In ordinary criminal trials, prosecutorial discretion tempers harsh, though constitutional, laws
and forbears from instigating criminal violations not founded upon community support. In political trial situations, however, prosecutorial discretion no longer acts as a buffer between the
community and the laws and thus the ordinary restraint exercised to prevent unfair prosecutions
can no longer be counted upon. In cases where the government itself is the victim, where the
offense is the crime of challenge to the authority of the rulers themselves, the community must
exercise the discretion normally residing in the office of the prosecutor. 0 This power of the jury,
most particularly in political cases, was so feared by many governments during the 1800’s that
trial by jury was not allowed where a political offense was involved.87 For example, Imperial Russia began using the jury system in 1864 but at first did not extend it to include political crimes. In
1871, however, 80 revolutionaries were brought to trial-the first public trial of political enemies
in the country. The jury acquitted over three-fourths of them and the verdict was approved by the
people. The Czar issued a secret order depriving those found innocent of their rights as citizens
and revamped the jury system so that in political offense cases, the jury would be hand-picked by
the Czar’s representatives. 8
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5.9 Black Power
5.9.1 The black community is better off when some nonviolent lawbreakers remain
in the community rather than go to prison.
Paul Butler, [Law Professor, Georgetown University Law Center[, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal 1995.
My thesis is that the black community is better off when some nonviolent lawbreakers remain
in the community rather than go to prison. The decision as to what kind of conduct by AfricanAmericans ought to be punished is better made by African-Americans themselves, based on the
costs and benefits to their community, than by the traditional criminal justice process, which is
controlled by white lawmakers and white law enforcers. Legally, the doctrine of jury nullification
gives the power to make this decision to African-American jurors who sit in judgment of AfricanAmerican defendants. Considering the costs of law enforcement to the black community and the
failure of white lawmakers to devise significant nonincarcerative responses to black antisocial
conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws.
5.9.2 African Americans should embrace jury nullification as a way to resist tyranny
of the majority.
Paul Butler, [Law Professor, Georgetown University Law Center[, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal 1995.
Democratic domination undermines the basis of political stability, which depends on the inducement of “losers to continue to play the political game, to continue to work within the system
rather than to try to overthrow it.”6 Resistance by minorities to the operation of majority rule
may take several forms, including “overt compliance and secret rejection of the legitimacy of the
political order.” 7 I suggest that another form of this resistance is racially based jury nullification. If African-Americans believe that democratic domination exists, they should not back away
from lawful self-help measures, like jury nullification, on the ground that they are antidemocratic.
African-Americans are not a numerical majority in any of the fifty states, which are the primary
sources of criminal law. In addition, they are not even proportionally represented in the U.S.
House of Representatives or in the Senate. As a result, African-Americans wield little influence
over criminal law, state or federal. African-Americans should embrace the antidemocratic nature
of jury nullification because it provides them with the power to determine justice in a way that
majority rule does not.
94
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5 Aff
5.9.3 Impact- the black community suffers disproportionately from the racialized
construction of crime.
Adrien Leavitt, [JD, Seattle University] “Queering Jury Nullification: Using Jury Nullification as
a Tool to Fight Against the Criminalization of Queer and Transgender People,” Seattle Journal for
Social Justice, Vol. 10, Issue 2.
As a result of this historic and continuous racialized construction of crime, the extraordinarily negative consequences of mass incarceration primarily fall disproportionately on the black
community.127 One in every three young black men is under the jurisdiction of the criminal
legal system, either because he is in prison, on probation or parole, or awaiting trial.128 While
a young white man has a 6 percent chance of going to prison, a young black man has a 32 percent chance.129 Blacks are significantly more likely to be targeted by the police, searched, and
arrested than whites and, as a result, are disproportionately represented in prison to a great degree.130 This is particularly true in cases involving drug charges.131 Although blacks represent
only 14 percent of monthly drug users, they account for more than 56 percent of those incarcerated for drug use.132 Moreover, among criminal defendants convicted of drug offenses, blacks
are more than ten times more likely than whites to be sent to prison.133 Ultimately, the violence
experienced by those in prison is infused back into their communities, creating a vicious, haunting cycle that is disproportionately borne by the black community.
5.9.4 There should be a presumption in favor of nullification for nonviolent, malum
prohibitum offenses, and nullification should be considered for nonviolent
malum in se crimes.
Paul Butler, [Law Professor, Georgetown University Law Center[, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal 1995.
In cases of violent malum in se crimes like murder, rape, and assault, jurors should consider the
case strictly on the evidence presented, and, if they have no reasonable doubt that the defendant is
guilty, they should convict. For nonviolent malum in se crimes such as theft or perjury, nullification is an option that the juror should consider, although there should be no presumption in favor
of it. A juror might vote for acquittal, for example, when a poor woman steals from Tiffany’s, but
not when the same woman steals from her next-door neighbor. Finally, in cases involving nonviolent, malum prohibitum offenses, including “victimless” crimes like narcotics offenses, there
should be a presumption in favor of nullification.
95
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5 Aff
5.10 AT Rule of Law
5.10.1 The Rule of Law is a myth.
Paul Butler, [Law Professor, Georgetown University Law Center[, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal 1995.
The idea that “any result can be derived from the preexisting legal doctrine” either in every case
or many cases, is a fundamental principle of legal realism (and, now, critical legal theory). The
argument, in brief, is that law is indeterminate and incapable of neutral interpretation. When
judges “decide” cases, they “choose” legal principles to determine particular outcomes. Even if a
judge wants to be neutral, she cannot, because, ultimately, she is vulnerable to an array of personal
and cultural biases and influences; she is only human. In an implicit endorsement of the doctrine
of jury nullification, legal realists also suggest that, even if neutrality were possible, it would not
be desirable, because no general principle of law can lead to justice in every case. It is difficult
for an African-American knowledgeable of the history of her people in the United States not to
profess, at minimum, sympathy for legal realism. Most blacks are aware of countless examples
in which African-Americans were not afforded the benefit of the rule of law: Think, for example,
of the institution of slavery in a republic purportedly dedicated to the proposition that all men
are created equal, or the law’s support of state-sponsored segregation even after the Fourteenth
Amendment guaranteed blacks equal protection. That the rule of law ultimately corrected some
of the large holes in the American fabric is evidence more of its malleability than of its virtue; the
rule of law had, in the first instance, justified the holes ….
5.11 AT “White People Will Nullify Too”
5.11.1 Non-unique—white people already nullify in cases of white-on-black crime,
and this might be good for pragmatic political purposes.
Monroe H. Freedman, [Professor of Law, Maurice A. Deane School of Law, Hofstra University],
“Jury Nullification: What It Is, And How To Do It Ethically,” Hofstra Law Review, Vol. 42, 2014.
One concern is that whites will nullify in cases of white-on-black crime. But white people do
this now. The white jurors who acquitted the police officers who beat up Rodney King are a
good example. There is no reason why my proposal should cause white jurors to acquit white
defendants who are guilty of violence against blacks any more frequently. My model assumes
that black violence against whites would be punished by black jurors; I hope that white jurors
96
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5 Aff
would do the same in cases involving white defendants. If white jurors were to begin applying my
proposal to cases with white defendants, then they, like the black jurors, would be choosing to
opt out of the criminal justice system. For pragmatic political purposes, that would be excellent.
Attention would then be focused on alternative methods of correcting antisocial conduct much
sooner than it would if only African-Americans raised the issue.
97
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6 Neg
6.0.1 Rule of Law
Rule of Law Good
Rule of law is necessary to account for differences in community morality in a pluralistic
society
Fissell 13 Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of
law.” Legal Theory 19 (3):217-241 (2013). https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_L
The accommodationists make a second major mistake: they take too simplistic a view of “community” morality. A bifurcated understanding is necessary, because the morality of the area
bound by the law need not always align with that of the area from which the jury panel will
be selected, and, because the morality of the jury is determinative, the possibility of nonalignment has consequences for the rule of law. With respect to nullification, one must speak of the
“community morality” in two senses and not only one: the conventional morality of the jurisdiction that has input over and is affected by the legislation (jurisdictional morality), and the
conventional morality of the area from which a venire— and ultimately a jury panel—will be selected (vicinage morality). These two communities of morality need not always be in agreement.
Interests, values, and opinions can diverge between people and groups, often sharply and often
geographically. One need look no further than recent electoral maps, where “red” and “blue”
counties generally come in large, geographically based clusters.62 There are many examples of
this geographic moral divergence, where different locales take opposing views on the acceptability of conduct.63 The accommodationists err in their undifferentiated account of “community”
morality; their theory relies upon a somewhat naive assumption of universal agreement that does
not bear out in our pluralistic society. More seriously, this incorrect assumption leads them to
miss out on the highly problematic implications that divergent moralities can have for the rule
of law. Localistic nullifications can arise when a vicinage morality diverges sharply from that of
the larger jurisdiction (aberrant localism) and also when it takes an entrenched position on what
is still an unsettled question at the jurisdictional level (quasi-representative localism). Localistic
98
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nullifications in these cases threaten the rule of law, and the accommodationists have only weak
replies to these objections. In his discussion of race-based Southern nullifications, Brown notes
that these scenarios “seem to occur largely when local norms and sentiments strongly conflict
with statutes and principles reflecting the consensus of the larger, national community.”64 After
raising this possibility of localistic divergence, though, and concluding that these nullifications
violate the rule of law, he refrains from abstracting any lesson from it beyond the specific context
of racism.65 Surely there are other pernicious types of localism besides racism, many of which
are equally threatening to rule-of-law values. Moreover, it is not clear that the Southern United
States example is a good example of “localism.” As Brown himself admits, this was an extraordinary case where a very large percentage of the population was living somewhat outside of the rule
of law.66 Localistic nullifications can arise in more ordinary circumstances, but Brown’s theory
does not address these.
Nullification Hurts Rule of Law
Jury nullification promotes anarchy and undermines the law
Niewert 3 David Niewert (freelance journalist). “Spreading Extremism.” Orcinus. 10 October 2003. http://dneiwert.blogspot.com/archives/2003_10_05_dneiwert_archive.html There is in
fact a long history of jury nullification both in American and English law — cases in which the
jurors simply ignored the requirements of the law and set the accused free. However, it has primarily been viewed as a malfunction of the law, not as a positive principle to be practiced. “Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court,”
according to a 1997 federal ruling, the strongest, most recent court decision on the topic. The
opinion by Judge Jose Cabranes said jurors who reject the law should not be allowed to serve;
when the ruling was appealed, the courts upheld, but also ordered a new trial after declaring that
only “unambiguous evidence” of a juror’s disregard of the law can justify his dismissal. Other
jurists have been equally clear about the actual standing of jury nullification: “It is a recipe for
anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established
law.” — Colorado circuit Judge Frederic B. Rodgers. “Jury nullification is indefensible, because,
by definition, it amounts to juror perjury — that is jurors lying under oath by deciding a case
contrary to the law and the evidence after they have sworn to decide the case according to the law
and the evidence.” — D.C. Superior Court Judge Henry F. Greene. In essence, jury nullification
— by sitting in judgment not just of the facts of the case but of the laws themselves — arrogates
to itself not only the role of the judge but of the legislature, essentially overturning at whim those
laws that have been passed through democratic processes. In this sense, jury nullification is a
99
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6 Neg
threat not only to the courts, but to the very systems of laws on which the nation rests.
Tool for Extremism
Nullification is a tool for anti-government extremism
ADL 98 Anti-Defamation League. “Skating on Thin Ice: Gary Beacom and the Pitfalls of Tax
Protesting.” 30 October 1998. http://archive.adl.org/mwd/beacom.html That is jury nullification
in theory. It is supported by a mix of libertarians, right-wing extremists and even a few legitimate
scholars and theorists. The major organization promoting it is FIJA, the Fully Informed Jury Association. Jury nullification in practice, however, is not a libertarian legal theory, but a deliberate
tactic used to monkey wrench trials involving anti-government extremists. The principle is simple: convince at least one juror that the law is unfair or that the defendant should be acquitted
regardless of the law, then that one juror can hang the jury simply by refusing to convict. Jury
nullification literature encourages extremists to remain silent or even to lie about their beliefs
when questioned during jury selection, so that they can get on juries and insure that there are
no convictions. If prosecutors fail to weed out such individuals, even their best efforts and the
most compelling evidence will result merely in a hung jury. In the past few years, several major
criminal cases involving anti-government extremists have ended in exactly that.
No Democratic Accountability
Juries are not democratically accountable
Kerr 15 Orin Kerr (Fred C. Stevenson Research Professor at The George Washington University
Law School). “The problem with jury nullification.” The Washington Post. 10 August 2015.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/10/the-problem-withjury-nullification/
It’s a different picture with juries. You might think of juries as a representative of “the People”
and therefore assume they are democratically accountable. But note that in criminal cases, the
law normally requires juries to be unanimous in order to render a guilty verdict. It takes only a
single juror to block a conviction. The evidence can be overwhelming, and eleven of the jurors
can believe fervently that a particular case is the most compelling prosecution ever brought. But
a single juror, accountable to no one, can put the kibosh on the case based on his own vision of
justice that may have no connection to anyone else’s. We don’t normally think of placing all the
power in one unelected person who answers to no one as a democratically accountable approach.
100
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6 Neg
AT: Aff Evidence (General)
Their authors cherry-pick only positive examples and ignore the importance of consistency
for rule of law
Fissell 13 Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of
law.” Legal Theory 19 (3):217-241 (2013). https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_L
Finally, and most worrisome, is the nullification proceeding from a vicinage morality that trumps
a larger jurisdictional morality that is generally in consensus and has codified that consensus in
a positive law (these are the “aberrant localities”). Here we have nothing more than a veto by
those small minorities that have failed in the political process or have entirely different worldviews (perhaps they are correct, but this is irrelevant!). Law’s suppression function is therefore
undermined. While the commentators present us with an intuitively palatable example of a substantive nullification (a just VM aligns with a just JM, both of which diverge from an unjust PL),
they are cherry-picking out of a constellation of generally problematic cases. VI. THE PROBLEM OF LOCALISM Substantive nullifications have one manifestation compatible with the rule
of law and three that undermine it. It is worth spending a bit more time discussing what makes
this the case. While much can be said about the propriety or acceptability of the jury qua decisionmaker—that is, whether the institutional features of the jury make it an appropriate lawmaking
body— our analysis centers on a more basic problem: consistency or congruence. Why will there
be congruence in the one type but not in the other three? As mentioned in the beginning, an essential feature of the rule of law is uniform or consistent application. As Finnis writes, “[T]hose
people who have authority to . . . apply the rules in an official capacity . . . [must] actually administer the law consistently and in accordance with its tenor.”89 The importance of this feature
cannot be overstated: the need for consistency is one of the primary reasons that law itself is instituted, whether it be for the purpose of settling contentious disputes or deciding between neutral
alternatives (as in coordination problems).90 Only through law, an imposition of “authority” or
“hierarchy,” will complex political communities be able to act as one—“unanimity” or “consensus” is not a viable alternative.91 Law is created so as to bring about common action, and because
one of law’s raisons d’ˆetre is the need for consistent conduct, the rule of law requires consistent
application. The law must apply consistently to those who act inconsistently with its dictates.
101
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6 Neg
AT: Prosecutorial Discretion
Jury nullification is not a substitute for prosecutorial discretion
Kerr 15 Orin Kerr (Fred C. Stevenson Research Professor at The George Washington University
Law School). “The problem with jury nullification.” The Washington Post. 10 August 2015.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/10/the-problem-withjury-nullification/
In his recent post, my friend and co-blogger Ilya Somin suggests that encouraging jury nullification might be a good idea because jurors can exercise discretion that prosecutors have wrongly
failed to exercise. Ilya quotes from an op-ed by Glenn Reynolds that makes the argument: Of
course, prosecutors have essentially the same power, since they’re under no obligation to bring
charges against even an obviously guilty defendant. But while the power of juries to let guilty
people go free in the name of justice is treated as suspect and called “jury nullification,” the power
of prosecutors to do the exact same thing is called “prosecutorial discretion,” and is treated not
as a bug, but as a feature in our justice system. But there’s no obvious reason why one is better
than the other. Yes, prosecutors are professionals — but they’re also politicians, which means
that their discretion may be employed politically. And they’re repeat players in the justice system,
which makes them targets for corruption in a way that juries — laypeople who come together
for a single case — aren’t. I’m not persuaded. As I see it, there are at least two big problems
with jury nullification that make jury discretion much more problematic than prosecutorial discretion. First, prosecutors know the facts needed to make decisions in the name of justice while
juries generally don’t. Prosecutors are supposed to make a decision to prosecute after learning
things like the suspect’s criminal record, the full scope of his conduct (including the inadmissible parts), how much a prosecution might deter future crimes, and what the punishment might
be if the suspect is convicted. Prosecutors can get the facts and make a call. We might disagree
with a prosecutor’s decision, of course. But the prosecutor at least has access to the information
needed to make the decision. Jurors usually don’t have that information. Jurors are not told what
they would need to know to decide what is just. We keep such information away from jurors to
help ensure a fair trial and preserve other values in the criminal justice system. The jurors normally don’t know about the defendant’s criminal record and past bad acts, as we don’t want the
jury to just assume that someone who has done bad things before is probably guilty this time,
too. Jurors aren’t told of the inadmissible evidence, such as evidence excluded under the Fourth,
Fifth, and Sixth Amendment, to encourage compliance with those provisions of the Constitution.
And we don’t explain to jurors why a particular prosecution is thought to further the purposes
of punishment because, among other reasons, doing so would take a lot of time and distract ju-
102
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6 Neg
rors from the question of guilt or innocence. In that system, encouraging jury nullification is
a recipe for arbitrariness instead of informed judgment. Second, jury discretion is less democratically accountable than prosecutorial discretion. Criminal prosecutions are democratically
accountable in two ways. First, before the crime occurs, the elected legislature must enact a law
saying that, in general, the conduct should be punished. Second, after the crime occurs, elected
executive officials and their employees must make a judgment that the specific conduct by the specific individual merits prosecution. Because prosecutors are repeat players who work for elected
politicians, prosecutorial decisions in the aggregate are ultimately subject to review by a majority
of the voters. If the voters don’t like how a prosecutor’s office has exercised discretion, the voters
normally can vote to throw out the head of the office. Both the general judgment ex ante and the
specific judgment ex post have to match for a prosecution to be brought.
AT: Unjust Laws
The morality of the particular law is not relevant to rule of law
Fissell 13 Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of
law.” Legal Theory 19 (3):217-241 (2013). https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_L
The problem is that these cases have been analyzed with the moral qualities preassigned: an “unjust” law and a “just” community morality. Instead, the phenomenon of nullification as substantive rejection of law must itself be assessed without regard for the substance of the law at issue.
This is true because the rule of law is itself nonsubstantive; it is a vehicle for producing outcomes
in a certain manner, but the outcomes themselves need not be defined. The rule of law really embodies process values, not substantive values. One look at its precepts makes this clear: a general,
public, clear, consistent, feasible, constant, prospective, and congruent system of wickedness is
entirely conceivable. As Raz notes, “[T]his conception of the rule of law is a formal one. It says
nothing about how the law is to be made: by tyrants, democratic majorities, or any other way. It
says nothing about fundamental rights, about equality, or justice.”53 Rawls, too, concludes that
the rule of law is “compatible with injustice,”54 noting that the precepts “impose rather weak constraints on the basic structure, but ones that are not by any means negligible.”55 The rule of law,
then, is a constellation of procedural values—a set of means that can be used to serve both just
and unjust ends. This has two implications for our discussion. First, it means that any analysis
of the rule of law’s compatibility with nullification cannot depend upon the substantive quality of
the law or the jury action at issue. The justice or injustice of a law or a nullifying jury cannot be
determinative—it is the effect of the nullification on the eight procedural desiderata that matters,
not its effect on justice. Second, it means that we must conduct the rule of law analysis in each
103
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6 Neg
and every possible type of substantive nullification, regardless of the substance. We cannot limit
our frame of reference to only one case, as the rule of law will be affected in all of them. Because
the rule of law is nonsubstantive, the scope of inquiry must be widened to encompass all versions
of the phenomenon being discussed, and not just one species of it.
AT: Brown 97
Brown confuses rule of law with substantive moral disagreements
Fissell 13 Brenner Fissell (Georgetown University Law Center). “Jury nullification and the rule of
law.” Legal Theory 19 (3):217-241 (2013). https://www.academia.edu/4020315/Jury_Nullification_and_the_Rule_of_L
Some accommodationists commit an error with respect to the first conclusion—they mistakenly
allow for the moral qualities of the law to be determinative in their rule-of-law analysis. This becomes clear when their responses to what I call the “inverse scenario” are juxtaposed alongside
their approbation of the paradigmatic case. That is, they express disapproval when a just law is
nullified by an unjust jury, but approval when an unjust law is nullified by a just jury. How can
they distinguish between the two, though, without appealing to the moral qualities of the law—
something that we agree is extraneous? Brown discusses the “inverse scenario” in the context of
Southern juries’ refusal to convict white defendants accused of violence against blacks, but his
treatment is problematic.56 First, he attempts to avoid the question posed above by framing the
Southern juries’ actions as mere biased applications and not substantive rejections, but this provides us with no real answers.57 When at last confronted by the problem, Brown’s answer is frank
but deeply unsatisfying: “The question may be a close enough one, though, or that distinction
slim enough, that the difference is ultimately one of moral viewpoint or substantive principle:
the southern acquittals were illegitimate because they were racist, while the Slave Act or capital
crime acquittals were lawful because they were based on a moral commitment we agree should
inform our law.”58 Brown admits that the quality of the “morality” does all of the delineating
work. As we say above, though, a nullification’s moral quality has no bearing on its comportment
with the rule of law—the rule of law “says . . . nothing about justice.”59
104
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6 Neg
6.0.2 Solvency
Harsher Judicial Restrictions
Nullification can backfire and causes judges to impose harsher restrictions on the defendant
Jeong 15 Sarah Jeong (Forbes contributor). “ ‘People Think They’re Helping The Defense, But
They’re Not’: Why Nobody In The Silk Road Trial Likes Jury Nullification.” Forbes. 14 January
2015.
http://www.forbes.com/sites/sarahjeong/2015/01/14/people-think-theyre-helping-the-
defense-but-theyre-not-why-nobody-in-the-silk-road-trial-likes-jury-nullification/ But it’s not
just the judge and prosecutor who are concerned about jury nullification. The defense is also
feeling the pressure. Judge Forrest is raising the possibility of making the jury anonymous—a
somewhat extreme measure that was first used in a 1977 trial of a drug kingpin. (A judicial order
for an anonymous jury keeps juror names secret.) Although some jurisdictions use anonymous
juries regularly, Ulbricht’s defense team seems to find the possibility of an anonymous jury to
be highly objectionable—possibly because of its use in mafia trials. The last thing they want is
for Ross Ulbricht to be treated like a drug kingpin. But as long as the jury nullification activists
continue to approach jurors, Forrest is inclined to institute an anonymous jury. She may have
been preparing for this all along—during jury selection, she and the courtroom deputy used
numbers for the prospective jurors instead of names. During the excruciating, hours-long
process, the cards with the numbers were placed into an old bingo wheel so jurors could be
picked at random. When it was time to identify the jurors for the court record, those numbers
were used. Although potentially identifying details were stated for the purposes of voir dire
and peremptory strikes (two different processes of eliminating prospective jurors), juror names
were never revealed. Towards the end of the first day of trial, Joshua Dratel, an attorney for
the defense, explicitly disavowed the jury nullification protesters outside. “People think they’re
helping the defense, but they’re not.”
Undermines Error-Correction
Jury nullification causes errors by the jury to go unchecked
Leipold 96 Andrew D. Leipold (The Edwin M. Adams Professor of Law at the University of Illinois). “Rethinking Jury Nullification.” Virginia Law Review, Vol. 82, No. 2 (March 1996), pp. 253324. http://www.jstor.org/stable/1073635
Summary judgments, judgments as a matter of law, and appeals can all be classified as “errorcorrecting” devices. When the trial or appellate court finds that the facts and law are clear, it
105
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6 Neg
can overturn the jury’s decision or intervene to prevent a verdict, because the case can have only
one “correct” (that is, factually and legally accurate) outcome.23 There is nothing remarkable
about these devices; they are based in part on the mundane notion that juries sometimes make
mistakes. Jurors sometimes misunderstand or misapply the law, become confused by complex
evidence, or reach a verdict based on prejudice or passion. Juries also make inaccurate decisions
with the help of judges and lawyers. They may be prevented from hearing important testimony
because of faulty evidentiary rulings,24 may be given improper instructions,25 or may be influenced by improper arguments.26 When these errors are made in civil cases or in criminal cases
to the defendant’s detriment, courts must review the record and, while giving great deference to
what a jury might find or could have found, enter what they believe is the legally and factually
correct result.27 These procedures are consistent with a scheme that puts a premium on accurate
outcomes, while at the same time giving juries enormous freedom to evaluate the facts and apply
the law. None of these error-correcting devices are available to the prosecution, of course; a judge
can never direct a verdict for the prosecution,28 nor can the government appeal an acquittal.29
These rules apply even though criminal defendants can be “wrongly” acquitted in the same way
that they are wrongly convicted, and criminal cases can be “wrongly” decided just as civil cases
are: an acquittal can be just as tainted by bad jury instructions as a conviction, and jurors can be
just as confused by the law of racketeering as they are by the law of contracts.30 Because errorcorrecting devices are unavailable to the prosecution, however, mistakes that result in acquittal
are left in place and the justice system suffers.31 For every acquittal that is the product of a trial
error, a guilty defendant goes free, resources are misused, and public trust in the accuracy of trials
suffers. And although it is unclear how often these costs are imposed (the refusal to re-examine
acquittals makes it hard to know how often they are infected by error), the relative frequency with
which error-correcting devices are used in civil cases suggests that the costs are considerable.32
As discussed below, the rules prohibiting error-correcting devices in criminal cases can be traced
to the nullification doctrine. For the moment, however, it is worth remembering that the costs
imposed by inaccurate verdicts can occur in any case, not just those in which the jury acquits
against the evidence. Cases where the jury reluctantly acquits because it did not see evidence that
should have been admitted are an example of these costs, as are cases where the judge would have
entered a judgment of conviction because no rational jury would acquit, but the confused jury
acquits anyway. So if indeed the rules barring error-correcting procedures exist to protect the
power to nullify, the price of giving juries this extraordinary freedom is higher than is commonly
supposed.
106
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6 Neg
Error-Correction Outweighs
Error-correction impacts a larger scope of cases. It applies even when juries don’t choose to
nullify
Leipold 96 Andrew D. Leipold (The Edwin M. Adams Professor of Law at the University of Illinois). “Rethinking Jury Nullification.” Virginia Law Review, Vol. 82, No. 2 (March 1996), pp. 253324. http://www.jstor.org/stable/1073635
This Article looks at jury nullification from a broader perspective. Its thesis is that the nullification doctrine exerts an enormous influence over the criminal process, especially in cases where
the jury does not exercise its power. Whatever the benefits that might arise in the few cases where
a jury acquits against the evidence, they pale in comparison to the doctrine’s undesirable collateral effects. These costs flow not from the doctrine itself, but from the many procedural rules
that protect the nullification power against encroachment. The procedural rules are extremely
successful in preserving the jury’s freedom to act, but they impose a surprisingly high cost on the
truth-seeking mission of a trial. It is this larger cost that should be the focus of discussion; once
the cost is fully calculated, it is easy to see why the current nullification doctrine is one we can and
should do without. Part I of the Article examines the scope of the jury nullification doctrine. It
notes that procedural devices that are available in most trials to correct or prevent errors-special
verdicts, judgments as a matter of law, and appeals-are not available to the prosecution in criminal
cases. It argues that the unavailability of these procedures flows from a desire to protect the nullification power from infringement; as a result, no matter how clear the evidence that an acquittal
is based on jury confusion or legal error, factually-inaccurate decisions that otherwise could be
corrected are left in place.
6.0.3 AT: Race-Based Nullification
Backlash
Race-based nullification backfires and causes backlash
Hornbeck 14 William Hornbeck (American Criminal Law Review). “This is a Red Line Train to
Judiciary Square.” American Criminal Law Review. 17 February 2014. http://www.americancriminallawreview.com/ac
online/red-line-train-judiciary-square/
Professor Butler has two responses to the possibility that his message of racial nullification could
spread beyond African-Americans, but both of his responses are insufficient. First, Professor But-
107
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6 Neg
ler argues that other races (or at least whites) are already racially nullifying, citing a white jury’s
acquittal of the officers who beat Rodney King.[7] But as Professor Randall Kennedy has noted, to
react to one race’s nullification with further racial nullification could lead to a society further stratified by race, where each race sees its primary goal as promoting its race over all other races.[8] In
a racial arms race, where each race acquits its own, minority jurors will be able to acquit or hang
less often than majority jurors, as minorities will be less frequently represented on juries. What’s
more, if jurors of all races used an explicitly racial calculus for whether to convict criminals, the
law might react by regulating (to the extent permitted by the Fourteenth Amendment) the use
of peremptory strikes not by the race of the juror but by the willingness of the juror to apply the
judge’s instructions rather than a racial calculus like Professor Butler’s. This would represent a
step backwards from the promise of Batson. Second, Professor Butler argues that the fact that
jury nullification has been used by unsavory characters like abortion clinic bombers and militia
movements does not make jury nullification a less useful or less morally just tool for AfricanAmericans, just as whites voting for racist purposes would not make voting itself a less useful or
morally just tool.[9] But to simply state as Professor Butler does that “I distinguish racially based
nullification by African-Americans from recent right-wing proposals for jury nullification on the
ground that the former is sometimes morally right and the latter is not” will not help his proposal
spread beyond the pages of a law review.[10] In his article, Professor Butler actually does distinguish African-American nullification from white nullification by tracing the respective histories
and underpinnings of each theory. There is no way to keep jury nullification a secret limited
only to African-Americans: all jurors will find out about nullification, either through a billboard
or through other means. In a courtroom, a juror informed of the possibility of nullification by
a billboard would not be aware of the racial distinctions that Professor Butler draws, and could
not construct an argument as eloquent as Professor Butler’s for limiting racial nullification to
African-Americans. All a juror would know is that their duty is to nullify. A white defendant
charged with murdering an abortion provider could look the same to a white anti-abortion juror
as a black defendant charged with drug possession would look to a black juror: Professor Butler’s
view of the relative morality of each action would not alter the reality of each action. Professor
Butler acknowledges that his proposal could be difficult to implement: he sees his role as starting
a public dialogue, not formulating a foolproof plan.[11] But it is a good thing that jury nullification has remained largely below the surface, with an occasional billboard cropping up every so
often. Nullification is a powerful tool in the hands of a juror: promoting nullification (especially
racial nullification) might lead to a world of even more racial competition, rather than the world
of black self-empowerment that Professor Butler seeks to achieve.
108
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6 Neg
Overly Pessimistic
Butler’s criticism of the legal system is oversimplified and overly negative
Gray 96 Lisa Gray (Reporter). “Innocent Even if Proven Guilty.” Washington City Paper.
19 April 1996. http://www.washingtoncitypaper.com/articles/10195/innocent-even-if-provenguilty/ Still, Kennedy has no trouble reeling off a host of reasons why adoption of Butler’s
ideas would yield havoc. Butler, he says, wrongly dismisses the danger of “victimless” crimes.
“There’s a reason why people in communities cry out to get rid of drug dealers. Drug dealers
make a community more vulnerable to people who will stick you up or break into your house.”
Kennedy, who is black, argues that Butler oversimplifies matters of racial politics. “He portrays
the criminal justice system as wholly the creature of white people. I’m not a great hawk when
it comes to the war on crime; I think there’s a strong argument for decriminalizing drugs. But
we live in a democracy, and there’s a strong sentiment for criminalization—and it’s not just
among whites.” If laws are racist, then Butler should attack the laws—not the legal system. Most
seriously, Kennedy charges, Butler denies a criminal’s responsibility for his act: “He makes it
seem as though crime is not really the criminal’s fault, that a person shouldn’t go to jail. He
doesn’t take into account that something distinguishes Person A, who is terribly disadvantaged
but does not engage in drug dealing, from Person B, who is also terribly disadvantaged and does.
He becomes so deterministic that he annihilates people’s ability to make choices in their lives.”
Not Radical Enough
Butler doesn’t go far enough. Focusing only on non-violent crimes fails to challenge the
inherent racism of prisons.
Leavitt 12 Adrien Leavitt (JD, magna cum laude, Seattle University). “Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and
Transgender People.” Seattle Journal for Social Justice Volume 10, Issue 2, Article 2. April 2012.
http://digitalcommons.law.seattleu.edu/sjsj/vol10/iss2/2/
Paul Butler framed his call for black jury nullification from his experiences: although he was able
to ignore the racism embedded in the criminal legal system during his tenure as a federal prosecutor, he could no longer ignore it when he suddenly found himself in the role of a criminal
defendant.260 Although eventually acquitted, Butler’s experience shook his belief in the criminal
legal system’s ability to achieve justice for the black community and shaped his view that black
jury nullification could remedy this disparate treatment.261 Although progressive at the time,
109
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6 Neg
Butler failed to apply his critique to the entire criminal punishment system: racism does not only
affect black defendants who are accused of nonviolent, victimless crimes, but rather it is so deeply
engrained and systemic that it affects all black defendants.262 Moreover, because the prison system is inherently racist and violent, reformation by addressing only the mass incarceration of
nonviolent offenders cannot possibly eradicate this violence. Reform, in short, is not enough.
6.1 Ban on Appeals
6.1.1 The ban on government appeals proves the scope of the jury nullification
doctrine is large in a bad way.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
This link between nullification and the ban on government appeals shows the breathtaking scope
of the nullification doctrine. There is no per se benefit, constitutional orotherwise, to errors in defendants’ favor, nor is it beyond the competence of reviewing courts to identify and correct those
errors. Nevertheless, for the sake of preserving the jury’s power to acquit against the evidence-a
power rarely exercised and never officially encouraged-society must tolerateven “egregiously erroneous” trial rulings that may induce an acquittal, even in cases where no juror gave a moment’s
thoughto nullification.75 The desire to give the doctrine awide berth has created a highly unrealistic assumption that we can never know whether a verdict, which is allegedly infected with a
reversiblerror, was in fact based on that error, or whether it was based on the jury’s desire to nullify. The assumption may work in cases of mercy killings, but it becomes an unwarranted leap of
faith when a jury acquits a hired gun who kills in cold blood.76
6.2 Competence
6.2.1 A right to nullify is practically suspect.
Gary J. Simson, [Assistant Professor of Law, the University of Texas], “Jury Nullification in the
American System: A Skeptical View,” Texas Law Review, Vol. 54, 1976.
A right to nullify is also suspect from a purely practical standpoint: how competent are juries as
compared to Congress to prescribe national policy? By failing to respect a statute’s command, a
nullifying jury substitutes its idea of national needs and priorities for Congress’. In setting national
110
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6 Neg
policy, Congress has significantly greater access to relevant information, superior expertise in
making decisions of such scope, and more time to reach a well-reasoned decision than does a
group of twelve citizens of no particular distinction snatched away from their primary vocations
to spend several days in federal court. 1’2 The question basically answers itself.‘’
6.3 Democracy
6.3.1 Nullification violates democratic principles.
Eric J. Haynie, [University of Portland, Trial Lawyer] “Populism, Free Speech, and the Rule of
Law: The”Fully Informed” Jury Movement and its Implications,” The Journal of Criminal Law
and Criminology, Vol. 88, No. 1, 1997.
Closely related to their damaging effect on due process and the rule of law, nullification instructions also run contrary to democratic principles. As the D.C. Circuit observes, “[a]ny ar guably
salutary functions served by inexplicable jury acquittals would be lost if that prerogative were
frequently exercised . . . [for] calling attention to that power could encourage the substitution
of individual standards for openly developed community rules.”‘05 Indeed, the ultimate effect
of nullification instructions is simply to give twelve “randomly selected individuals with no constituency but themselves” an open invitation to frustrate the policies of Congress or the state legislatures, whose laws in all probability will “reflect the majority’s view.” ’“6 The undemocratic force
of nullification instructions is particularly strong given that it takes not twelve but one nullifying
juror to prevent conviction of a man guilty of the crime charged beyond a reasonable doubt.’07
Nullification instructions are also inherently undemocratic because they frustrate the right of the
people to insure that those who violate their laws do not go without punishment.108 Furthermore, jurors who are forced into the unaccustomed role of making macro-social choices would
undoubtedly tend to”overlook the broader implications of their decisions.“1”
6.4 Discouraging Guilty Pleas
6.4.1 The jury nullification system discourages guilty pleas.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
If all other factors are equal, a defendant is less likely to plead guilty under a system that recognizes
nullification than under a system that does not. Even if the evidence of guilt is overwhelming, a
111
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6 Neg
defendant knows that at trial, there is a chance (normally asmall one) that the jury will acquit
against the evidence. The defendant also realizes that there is a chance (perhaps a significant
one) that the jury will acquit because of confusion or other error. If the only alternative to trial is
pleading guilty, most rational defendants would prefer to take a chance on acquittal.1
6.5 Equal Justice
6.5.1 The right to nullify violates the right to equal justice.
Gary J. Simson, [Assistant Professor of Law, the University of Texas], “Jury Nullification in the
American System: A Skeptical View,” Texas Law Review, Vol. 54, 1976.
Equal justice is another casualty of a right to nullify. If juries are encouraged to nullify the law,
defendants equally guilty of the same offense stand to receive widely disparate treatment for their
acts. The possibilities range from outright acquittal, to conviction of a lesser included offense of
(or less serious offense than) the offense for which criminal liability exists under a faithful application of the received law, to conviction of the latter offense. Parochial biases only partly account
for these inevitable violations of equal justice. To the twelve persons on a jury, an instruction to
decide a case according to their individual views of justice is a license to vote other sympathies
as well. 120 They could be expected to dwell more so than usual on aspects of the defendant-for
example, dress, number of children, race, or employment recordproperly considered, if at all, by
the judge in determining sentence. It is unrealistic to deny that factors legally irrelevant to guilt
or innocence may influence a jury’s verdict. 12 1 Recognizing a right to nullify, however, in effect
concedes that these factors should be part of the jury’s calculus of guilt and enhances their weight
in that calculus. The point is not that, absent a right to nullify, the existing system of criminal justice is the embodiment of equal justice. Assuredly (and probably, as a result of human differences
and limitations, to some degree unavoidably) it is not, either in the jury’s decision-making or in
the decision-makingcharging, sentencing, etc.–of other participants in the process. Rather, the
evil of jury nullification lies in its further removing the administration of criminal justice from
an ideal toward which it should be aspiring.
112
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6 Neg
6.6 Fair Warning
6.6.1 Jury nullification violates the principal that fair warning of prohibited acts
should precede punishment.
Gary J. Simson, [Assistant Professor of Law, the University of Texas], “Jury Nullification in the
American System: A Skeptical View,” Texas Law Review, Vol. 54, 1976.
Finally, jury nullification violates the basic equitable principle that fair warning of prohibited acts
should precede punishment for their commission. A jury free to decide where blame should
justly lie may acquit a defendant guilty under a faithful application of the law, but it may also
convict a legally innocent defendant. The proponents of jury nullification suggest that this unfair
surprise is easily circumvented: the judge should simply tell the jury that it can only disregard
his instruction in order to be more lenient to the defendant than a strict application of the law
would dictate.’22 This proposal is dubious, however, on two accounts. First, any court persuaded
to recognize a right to nullify would probably find the proposal unacceptable, because it draws a
wholly unprincipled distinction. 12 That is, if, as the nullification position assumes, a jury is better
suited than a legislature to place blame, then it should be authorized to mete out greater penalties
than required by law as well as lesser ones. The proposed instruction makes sense only if the
goal of the criminal justice system is maximizing acquittals rather than improving the quality of
criminal justice. Second, even if courts are willing to adopt this proposal, juries may well render
it ineffectual because they discern no rational basis for distinction. Instructed that it is perfectly
fine to ignore the command of the law to do justice in some instances, then, juries are apt to feel
unconstrained by law from doing what they believe to be just in all instances. If jury nullification
is ushered into the federal courts, unfair surprise cannot be far behind. 24 And, once again, I
cannot help but fear that those outside the mainstream of society-whether by reason of their race,
religion, national origin, or creed-will be the ones to experience the ill effects.
6.7 Inconsistency
6.7.1 The jury nullification doctrine leads to inconsistent verdicts.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
The lack of special verdicts often means that in multi-party and multi-count trials the jury’s decision will be internally inconsistent. When identical evidence is introduced againstwo codefen-
113
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6 Neg
dants, but the jury acquits one and convicts the other, part of the verdict is obviously contrary
to the evidence.96 Likewise, when a single defendant is convicted of using the telephone in the
commission of a felony, but in the same verdict is acquitted of the predicate felony, something
is plainly amiss.97 As the Supreme Court has admitted, ” inconsistentt verdicts . . . present
asituation where ‘error,’ in the sense that the jury has not followed the court’s instructions, most
certainly has occurred . . . 5“98 A court could interpret inconsistent verdicts in one of two ways.
It might conclude that the defendant’s acquittal of a given offense shows that the jury found the
prosecutor’s case insufficient, and that when it went on to convicthe defendant of other offenses,
it was confused, motivated by passion, or had agreed to a compromise verdict.99 The court could
then overturn the convictions as inconsistent with the acquittal. 100 The Supreme Court and
most state courts, however, have interpreted inconsistent verdicts differently. Under the”Dunn
rule, “101 courts will not construe inconsistencies as evidence that the conviction is tainted, because the acquittal portion of the verdict might reflect the jury’s decision to acquit againsthe evidence.102 This presumption of nullification has been sharply criticized.
6.7.2 Nullification leads to inconsistent application of laws.
Eric J. Haynie, [University of Portland, Trial Lawyer] “Populism, Free Speech, and the Rule of
Law: The”Fully Informed” Jury Movement and its Implications,” The Journal of Criminal Law
and Criminology, Vol. 88, No. 1, 1997.
The final reason courts deny nullification instructions is that allowing jury nullification would
lead to inconsistent application of laws.114 If nullification instructions were allowed, local, state
and federal penal laws would never be uniformly applied. Rather, their application would depend
entirely on the idiosyncrasies of particular juries.“’ For this reason, nullification instructions pose
the greatest threat to the fair and consistent application of federal criminal laws-laws with which
local biases may be in greater conflict.”6 As the Supreme Court noted in Sparf If a petit jury can
rightfully exercise this power [of nullification] over one statute of Congress, they must have an
equal right and power over any other statute, and indeed over all the statues; for no line can be
drawn, no restriction imposed, on the exercise of such power; it must rest in discretion only. If this
power be once admitted, petitjurors will be superior to the national legislature. …. The doing of
certain acts will be held criminal, and punished in one state, and similar acts may be held innocent,
and even approved and applauded, in another.117 Indeed, nullification instructions are ultimately
an invitation to greater parochialism in the jury decision-making process.“1 By legitimizing local
biases, nullification instructions run the risk of immunizing”criminal acts visited upon members
of society’s ’discrete and insular minorities .. . .“’9 In the 1960s, for example, jury nullification was
used by some Southern juries to shield local racial preferences and block enforcement of federal
114
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6 Neg
civil rights legislation.120
6.8 Legislative Reform
6.8.1 A right to nullify inhibits necessary legislative reform.
Gary J. Simson, [Assistant Professor of Law, the University of Texas], “Jury Nullification in the
American System: A Skeptical View,” Texas Law Review, Vol. 54, 1976.
Also militating against recognition of a right to nullify is its tendency to inhibit necessary legislative reform. By eliminating some of the injustices that would result from the enforcement of
an unpopular law, jury nullification works to foster the illusion that, regardless of the law on the
books, justice is basically being done. As a result, laws that fail to reflect contemporary standards
of justice are less likely to be the foci for vigorous public demands for change.” 8 Even assuming,
then, that a law is unfair in the eyes of the great majority of people, the jury’s ad hoc repeal of
the law via nullification is not art unqualified good, because it rescues one person from unjust
conviction at the expense of increasing the probability that the law will remain on the books to
prove a source of oppression for others. Of course, some future defendants may also be fortunate
enough to find a jury ready to acquit in defiance of the statute. Nonetheless, there is no assurance
that all such defendants will be so lucky; and, in any event, even if acquitted, these defendants will
-have been made to suffer needlessly the adverse psychological, physical, and financial effects of
being and having been charged with a criminal offense. 1
6.9 No Special Verdicts
6.9.1 The inability to ask the jury factual questions is directly traceable to the
nullification doctrine.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
Asking the jury to answer factual questions when they return a verdict can increase the accuracy
of decisions by forcing jurors to focus on the specific elements of the claims or defenses raised at
trial.89 Special verdicts also help a reviewing court decide if a verdict should be upheld, by articulating the jury’s basis for its decision.90 Nevertheless,pecial verdicts are discouraged in criminal
cases and, as a result, they are extremely rare.91 Courts fear that if juries had to answer questions
115
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6 Neg
about the verdict, their independence would be compromised because they might feel pressure
to convict. As the First Circuit has said: There is no easier way to reach, and perhaps force, a
verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally
catechized. By a progression of questions each of which seems to require an answer unfavorable
tothe defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would
have resisted.92 The court acknowledged, however, that “since the law should be logical and consistent, if the questions were proper in substance this would [seem to] be a desirable rather than
an undesirable result.”93 And indeed, it would be hard to explain this reasoning to nonlawyersthat juries, having answered the interrogatories and concluded that the defendant committed the
crime, would feel unfairly “‘pressured” to convict. Nevertheless, several courts have concluded
that logic and consistency are less important than unfettered jury decisionmaking Some of the
antipathy toward special verdicts in criminal trials has its roots in the doctrine of ’jury nullification.’ . . . Underlying this aversion is the feeling that denial of a general verdict might deprive
the defendant ofthe right to a jury’s finding based more on external circumstances than the strict
letter of the law.9 It is unclear how often special verdicts would help in criminal trials, but it is
easy to imagine cases in which they would increase the accuracy of the outcome. Trials involving
multi-party conspiracies or multi-count indictments, for example, and complex statutory cases (a
large percentage of the federal criminal docket) all run the risk of jury confusion and erroneous
assessments of guilt or innocence.95 The effective inability of judges to ask questions that would
reveal jury confusion or error is a clear cost to the system, one that is again directly traceable to
the nullification doctrine.
6.10 Reconstruction-Era Oppression
6.10.1 Nullification was not only not inconsistent with the Fourteenth Amendment,
it was intertwined with oppression during the Reconstruction era.
Jonathan Bressler, [Law Clerk to Judge Stephen Breyer], “Reconstruction and the Transformation
of Jury Nullification,” The University of Chicago Law Review, Vol. 78, No. 4 (Fall 2011).
Virginia’s criminal law was “peculiar” partly because “juries are judges of both law and fact,” showing that Van Winkle believed that allowing the jury’s right to nullify was the exception rather than
the rule. Furthermore, he considered the jury’s authority over law-deciding to be a significant
cause of black oppression in the South. The Reconstruction Congresses understood the jury’s
right to nullify not to be included within the meaning of criminal trial, and thus they understood
the Fourteenth Amendment not to protect or to incorporate the jury’s original right to nullify.
116
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6 Neg
But they understood far more than that. They also understood that nullification was intertwined
with oppression, particularly in the South, and that Congress may or even must enact legislation,
pursuant to the Fourteenth Amendment, to prohibit it.
6.10.2 White jury nullification was a principal cause of Reconstruction injustice.
Jonathan Bressler, [Law Clerk to Judge Stephen Breyer], “Reconstruction and the Transformation
of Jury Nullification,” The University of Chicago Law Review, Vol. 78, No. 4 (Fall 2011).
White juries were viewed as the principal cause of Reconstruction injustice. In Texas, for example,
the state prosecuted five hundred whites for murdering blacks in 1865 and 1866, but in each
trial, the all-white juries acquitted every defendant.270 In Georgia, a Freedmen’s Bureau officer
conceded that the “best men in the State admit that no jury would convict a white man for killing
a freedman.”271 Likewise, a Florida sheriff lamented, “If a white man kills a colored man in any
of the counties of this state, you cannot convict him.”272 Judge Thomas Settle of North Carolina
told Congress that the “defect lies not so much with the courts as with the juries. You cannot get
a conviction; you cannot get a bill found by the grand jury; or, if you do, the petit jury acquits
the parties.”273 No matter how vigilant the civil authorities were, they could not punish white
offenders because [i]n nine cases out of ten the men who commit the crimes constitute or sit on
the grand jury, either they themselves or their near relatives or friends, sympathizers, aiders, or
abettors; and if a bill is found it is next to impossible to secure a conviction upon a trial at the bar.
I have heard of no instance in North Carolina where a conviction of that sort has taken place.
6.10.3 In the South, jury trials became mockeries of justice.
Jonathan Bressler, [Law Clerk to Judge Stephen Breyer], “Reconstruction and the Transformation
of Jury Nullification,” The University of Chicago Law Review, Vol. 78, No. 4 (Fall 2011).
Throughout Reconstruction, Congress was well aware of the Southern juries’ defects. Senator
Edmunds said that in the South “a jury trial is a mockery; it is a shield for cruelty and crime
instead of being an instrument of punishment for it.”274 Henry Pease, a carpetbag senator from
Mississippi, reported that in the South a “white man may slay a negro, and it may be proven as
clear as the noon-day sun that it was a case of murder with malice aforethought; and yet you
cannot get a jury to convict.”275 He continued: [I]n the State of Mississippi, where our laws are
executed with as much impartiality as in any other southern State, I do not know among the
several hundred homicides committed in that State a single instance, since reconstruction, where
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a white man has been convicted of killing a negro; and I venture the assertion that there have been
over five hundred murders of negroes in that State by white men, and not one of them punished.27
6.10.4 Jury nullification allowed Ku Klux Klan members to commit perjury and
acquit each other.
Jonathan Bressler, [Law Clerk to Judge Stephen Breyer], “Reconstruction and the Transformation
of Jury Nullification,” The University of Chicago Law Review, Vol. 78, No. 4 (Fall 2011).
Congress held hearings on one major source of problems: the Ku Klux Klan. Congress heard
dozens of witnesses testify and collected hundreds of pages of testimony about the organization,
including its members’ manipulative behavior on juries.280 “The evidence shows that this Ku
Klux organization,” Senator Morton concluded, required its members “to commit perjury as jurors, and to acquit at all hazards one of their number who may be upon trial.”281 Among a litany
of wrongs he discovered, Representative Clinton Cobb of North Carolina condemned KKK members because as jurors “they have nullified trials by peijury.”282 Such nullification, the legislators
realized, escalated violence. Where KKK members “sit upon juries,” Senator Thomas Osborn of
Florida recognized, “outrages of the worst order, the most inhuman violence and cold-blooded
murders are committed with impunity.”283 “What is the civil law to” a KKK member, asked Senator Charles Drake of Missouri, when “[h]e knows that . . . the jurors who go there will acquit
him in spite of all the evidence[?]”2
6.11 AT Butler
6.11.1 Butler’s proposal would be worse for the African-American community.
Andrew D. Leipold, [Associate Professor, University of Illinois College of Law], “The Dangers of
Race-Based Jury Nullification: A Response to Professor Butler,” UCLA Law Review Vol. 44, 1996.
In fact, the refusal to change the laws may be the best that African Americans could hope for
under the Butler plan. It is also entirely possible that legislatures, like prosecutors, would respond
in ways that would harm the jury system generally and defendants in particular. Even if the
Butler plan were followed by most African-American jurors, it would still be relatively rare for a
defendant to be tried before an entirely black jury. We therefore could assume that the impact
of race-based jury votes would be many more deadlocked panels and hung juries. It is easy to
imagine one step that state legislatures might take in response: There would be strong pressure
to change the rules, and abandon the requirement of unanimous verdicts.8 7 No jurisdiction
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would long tolerate a system in which a large percentage of cases fails to reach a judgment, and it
would be politically easier to make deliberations faster and convictions easier by marginalizing a
few members of a jury with entrenched views. Whatever the merits of allowing non-unanimous
verdicts, the nullification tail should not wag this dog. Jurors with minority views would lose their
influence, deliberations would often be less robust and less cautious, and public confidence in the
accuracy of all verdicts (not just those involving nonviolent crimes) might well suffer.“8 It is hard
to believe that African-American jurors, defendants, or communities would be better off under
such a scheme.
6.11.2 Race-based decisionmaking by juries is a terrible idea.
Andrew D. Leipold, [Associate Professor, University of Illinois College of Law], “The Dangers of
Race-Based Jury Nullification: A Response to Professor Butler,” UCLA Law Review Vol. 44, 1996.
Race-based decisionmaking by juries is wrong on so many levels it is hard to know where to begin.
It is wrong because verdicts will inevitably be based on stereotypes that are harmful to all members
of the group; wrong because those who are not part of the favored group are treated more harshly
for reasons unrelated to their blameworthiness; wrong because it helps polarize a society that is
already struggling with racial division; and most tragically, wrong because it raises the flag of
surrender in the fight for equality. Butler’s inescapable message is that equal treatment will never
be possible, at least in court, so African Americans should take whatever small benefits they can
grab on their own and be content with that. But those who have struggled for equal justice deserve
better: The tangible gains that have been made over the last few decades in reducing racial bias
in the criminal system should not be so casually dismissed by those who are too impatient to
continue on the current course.103
6.11.3 Butler’s proposal only exacerbates race relations.
Andrew D. Leipold, [Associate Professor, University of Illinois College of Law], “The Dangers of
Race-Based Jury Nullification: A Response to Professor Butler,” UCLA Law Review Vol. 44, 1996.
Professor Butler’s plan is cause for concern. There is already a perception among some lawyers,
and perhaps among the public, that in criminal trials race matters more than the facts and that
verdicts are more an exercise of political power than a conclusion that follows a search for the
truth.” A proposal for race-based nullification can only exacerbate the problem. As De Tocqueville
noted, juries “are one of the most effecatious means for the education of the people which society
can employ,”’ ° and teaching jurors that a defendant’s skin color can be more important than his
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actions will ultimately lead us away from, rather than toward, the goal of equal justice under the
law.
6.12 AT Constitutionality
6.12.1 There’s little evidence the framers cared very much about jury nullification.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
But despite the popularity of the institution, there is little evidence that the jury’s ability to decide
the law, including the power to nullify, was of concern to the Framers of the Constitution or the
Bill of Rights. There is little discussion of juries in The Federalist Papers; the only extensivexamination comes in The Federalist No. 83, where Hamilton focuses almost entirely on the right to a
jury in civil cases,’35 and mentions criminal juries only in passing. 136 The debates surrounding
the drafting and ratification, while devoting more attention to criminal juries, are also relatively
silent on the scope of their power. The main complaints about the provision that became the
Article III righto a criminal jury were that there was no guarantee that the jurors would be drawn
from the vicinage137 and no provision requiring aunanimous jury to convict.138 Otherwise, the
Framers spent their energy debating the right to civil juries. 139
6.12.2 The Bill of Rights also doesn’t say much about jury nullification.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
The debates over the Bill of Rights provide another potential source for the view that jury nullification is constitutionally protected, but except for occasional statements by leading figures of the
day,140 there is again little evidence that the Framers were concerned about the issue. Perhaps
this silence is unremarkable: maybe the right to nullify was so well-established that the Framers
saw no reason to mention it. Assuming a positive intent from silence is dangerous, however, particularly given that for both the Constitution and the Bill of Rights, the drafters were concerned
enough about other features of the criminal jury trial to insert them in the text, or at least to
discuss them directly.’4
120
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6.12.3 The Fourteenth Amendment framers found nullification inconsistent with
new constitutional rights.
Jonathan Bressler, [Law Clerk to Judge Stephen Breyer], “Reconstruction and the Transformation
of Jury Nullification,” The University of Chicago Law Review, Vol. 78, No. 4 (Fall 2011).
First, this Article concludes that the Fourteenth Amendment’s Framers understood their Amendment to guarantee criminal jury trial in state courts- but not to incorporate against the states the
jury’s historic right to nullify. In 1868, unlike in 1791, this right was not considered inherent in
due process or jury trial. Second, this Article shows that, unlike the Sixth Amendment’s Framers,
the Fourteenth Amendment’s Framers understood nullification to be inconsistent with new constitutional rights, and they understood the Constitution to authorize Congress and the federal
courts to disallow nullification. Their Amendment’s text and history provide an alternative justification of Sparf, one that comports with originalism- of the Reconstruction-era variety- and
illustrates that original meaning may not be captured exclusively in a Founding-era conception
of rights.
6.12.4 Nullification violates the Sixth Amendment.
Eric J. Haynie, [University of Portland, Trial Lawyer] “Populism, Free Speech, and the Rule of
Law: The”Fully Informed” Jury Movement and its Implications,” The Journal of Criminal Law
and Criminology, Vol. 88, No. 1, 1997.
Nullification instructions also frustrate due process by thwarting a defendant’s “fundamental
right” to a fair, impartial trial by jury.” The Sixth Amendment0oo guarantees every criminal defendant a trial based exclusively on the evidence of record,o10 in accordance with the law,s02
and free from outside influences.’03 By making the jury the “finder of law” as well as fact, however, nullification instructions encroach upon the promise of due process. For what better way
to ensure a verdict outside the law than to instruct jurors that they may ignore it.’04
6.13 Rule of Law
6.13.1 Trials should be an issue of rule of law, not rule of people.
Eric J. Haynie, [University of Portland, Trial Lawyer] “Populism, Free Speech, and the Rule of
Law: The”Fully Informed” Jury Movement and its Implications,” The Journal of Criminal Law
and Criminology, Vol. 88, No. 1, 1997.
121
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At the core of American constitutional jurisprudence is the notion that ours is a government
of laws, not of men.84 Under the rule of law, citizen behavior is regulated not according to the
passions and prejudices of human beings, but according to objective, published laws formally
sanctioned by elected representatives through a pre-ordained process. As a federal judge sitting
at criminal law aptly observed in 1941: Our American system represents the collective wisdom,
the collective industry, the collective common sense of people who for centuries had been seeking freedom, freedom from the tyranny of government actuated or controlled by the personal
whims and prejudices of king dictators. The result is a government founded on principles of
reason and justice, a government of laws and not of men.85 Because nullification instructions
give juries affirmative permission to ignore applicable legislative definitions of culpable conduct,
such instructions undermine the rule of law.86 This reality was explained long ago in the Supreme
Court’s landmark decision of Sparf & Hansen v. United States,87 which addressed the issue of
jury nullification in the federal court system. Holding that it is the right and duty of the trial judge
to instruct the jury to follow the law, the Court wrote that: Public and private safety alike would be
in peril if the principle be established that juries in criminal cases may, of right, [be told to] disregard the law as expounded to them by the court, and become a law unto themselves. Under such
a system, the principal function of the judge would be to preside and keep order while jurymen,
untrained in the law, would determine questions affecting life, liberty, or property according to
such legal principles as, in their judgement, were applicable to the particular case being tried. …
We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries
in criminal cases to take the law from the court, and apply that law to the facts as they find them
to be from the evidence.88
6.13.2 Jury nullification turns juries into a law-making body.
Eric J. Haynie, [University of Portland, Trial Lawyer] “Populism, Free Speech, and the Rule of
Law: The”Fully Informed” Jury Movement and its Implications,” The Journal of Criminal Law
and Criminology, Vol. 88, No. 1, 1997.
The Ninth Circuit has criticized nullification arguments by counsel as violative of the rule of law in
even stronger terms: If we … allow lawyers to appeal for jury nullification at will and indefinitely,
and if we grant defendants a Sixth Amendment right to explain themselves in legally irrelevant
terms-then we move to a “system” in which the loudest voice carries the day, in which the phrase
“order in the court” literally has no meaning, and in which the [rule of] law has about as much
force as the Cheshire Cat’s grin.89 Stated another way, the principal danger in giving juries an
affirmative option to ignore the criminal law is that the jury is thereby transformed from a factfinding into a law-making body.90 In so doing, nullification instructions convert juries into ju-
122
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nior varsity legislatures whose decisions undermine the impartial determination of justice based
on published law.9’ Thus, explicit nullification instructions would convey “an implied approval
that runs the risk of degrading the legal structure [below the level of integrity] requisite for true
freedom, for an ordered liberty that protects against anarchy as well as tyranny.”92 By refusing
to allow the nullification power to be explained to juries, courts better ensure that jurors use the
nullification power sparingly, departing from the rule of law only where their own conscience
naturally compels a veto of ajudge’s instructions.“9
6.14 AT Nullifying Drug Laws
6.14.1 Race-based nullification is the wrong tool for the job.
Andrew D. Leipold, [Associate Professor, University of Illinois College of Law], “The Dangers of
Race-Based Jury Nullification: A Response to Professor Butler,” UCLA Law Review Vol. 44, 1996.
The problem is that race-based nullification is the wrong tool for the job. The belief that legislators
would react to frequent acquittals by decriminalizing drug use or otherwise radically changing
the laws is highly suspect (more on this in Part II). Of more immediate concern is the broader
assumption that jury nullification is an effective tool for bringing about legal change. The history
of nullification is more complex than the Essay acknowledges, and the lessons to be drawn from
history are considerably less favorable to the proposal than the Essay admits. 50 Jury nullification
is often discussed in romantic terms, 5 but the myth is far more exciting than the reality. Putting
aside the problem of identifying clear examples of nullification, 52 there simply are not many
instances in our history when jury nullification brought about significant legal and social change.
Professor Butler offers a few examples: the famous Bushell’s Case,5 3 which helped establish jury
independence from the courts; cases in which Northern jurors refused to enforce antebellum slave
laws; 4 and the jury’s refusal to convict John Peter Zenger of seditious libel,” which might be seen
as part of the popular movement against the repressive laws imposed on the American colonies by
England. These “success stories,” Butler argues, not only resulted in more equitable verdicts, but
also helped change the legal landscape by demonstrating the unwillingness of ordinary citizens
to uphold immoral laws.56
6.14.2 Repeated instances of nullification would not amend any drug laws.
Andrew D. Leipold, [Associate Professor, University of Illinois College of Law], “The Dangers of
Race-Based Jury Nullification: A Response to Professor Butler,” UCLA Law Review Vol. 44, 1996.
123
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The lack of political support for changing the drug laws is crucial, because even repeated instances
of nullification would not amend any of these laws. Only legislative action can achieve that result,
yet Butler seems curiously indifferent to whether his proposal would have a realistic chance of
producing statutory change. His decision to limit his plan to African Americans seems particularly wrongheaded in this context. If he hopes to use nullification to persuade lawmakers that
criminalizing drugs is unwise, it should make even more sense to urge juries of all races to nullify
for all defendants, particularly if (as Butler believes) legislatures are primarily concerned with the
interest of white citizens. By deliberately shutting out the group that would be most helpful to
his plan, Butler seems willing to incur all the harms of nullification-the return of the guilty to the
streets-while offering little hope for meaningful reform. 7
6.15 AT Sixth Amendment
6.15.1 Defendants should have a right to a trial free of jury nullification.
Nancy J. King, [Professor of Law, Vanderbilt University], “Silencing Nullification Advocacy Inside
the Jury Room and Outside the Courtroom”, The University of Chicago Law Review, Vol. 65, 1998.
The Sixth Amendment offers an alternative basis that may prohibit judges from purging nullifiers
from juries. Until rela tively recently, the Impartial Jury Clause guaranteed only that the jury that
ultimately tries the defendant be reasonably unbiased.72 The impartiality of a jury did not depend
upon the attributes of those who were not selected for the jury. The Supreme Court modified this
interpretation in a line of cases originating with Witherspoon v Illinois.73 The Witherspoon Court
recognized, for the first time, a constitutional limit on the government’s right to challenge for
cause. The Court agreed that the Sixth and Fourteenth Amendments allow prosecutors in capital
cases to exclude any juror who could not vote to impose the death penalty, but held that those
same constitutional provisions prohibit the exclusion of a juror whose doubts about the death
penalty were not strong enough to prevent the juror from sentencing a defendant to death.74 To
give this limit on the government’s ability to exclude death penalty opponents more bite, the Court
in Gray v Mississippi75 ordered resentencing for every capi- tal case in which the judge excluded
a juror whose views about the death penalty were not strong enough to justify exclusion. Such
error could not be harmless, the Court concluded, even when the prosecutor could have excluded
the juror with a peremptory challenge had the judge ruled correctly, and even when the resulting
jury included no one whom the defendant could have challenged for cause.s
124
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6.15.2 The Constitution holds that jury nullification need not be protected, only
tolerated when expedient.
Nancy J. King, [Professor of Law, Vanderbilt University], “Silencing Nullification Advocacy Inside
the Jury Room and Outside the Courtroom”, The University of Chicago Law Review, Vol. 65, 1998.
The approach least likely to offer any impediment to the exclusion of potential nullifiers is the
view that the jury’s ability to acquit against the law without judicial interference is not an affirmative grant of power but rather an unavoidable result of the recognition of two other important
rights: the defendant’s right under the Sixth Amendment to a jury’s independent assessment of
the facts,58 and the defendant’s interest in the finality of acquittals protected by the Double Jeopardy Clause. 9 In essence, the jurors may be wrong about the law when they acquit, but identifying
and correcting their error would unduly threaten these important procedural rights Alternatively,
even if some review of jury acquittals would be consistent with the right to be free from a second
prosecution or the right to have facts found first by a jury,6 the ban against review of acquittals
could be premised upon nonconstitutional grounds. The costs of providing even limited review of
acquittals, including the difficulty involved in isolating what caused an acquittal and the expense
of disturbing jury verdicts, may not be worth the benefits that would accrue from providing review. 2 Under either of these explanations, nullification need not be protected, only tolerated
when expedient. Neither theory presents an impenetrable constitutional barrier to the exclusion
of potential nullifiers from jury panels before a verdict is returned. Indeed, screening out legal
skeptics during voir dire would seem to be an effective method of controlling lawless acquittals,
a method that avoids interference with either the jury’s factfinding or the finality of the jury’s
verdict
6.16 AT Right to Nullify
6.16.1 Jurors should not have a right to nullify.
Nancy J. King, [Professor of Law, Vanderbilt University], “Silencing Nullification Advocacy Inside
the Jury Room and Outside the Courtroom”, The University of Chicago Law Review, Vol. 65, 1998.
Jury trials could be affected profoundly if the freedom to vote against convicting a person condemned by the law was recognized as a fundamental right. To exclude a juror solely because she
expresses some willingness to do what the Constitution authorizes her to do would be as suspect as excluding her from the polls because of her desire to vote for an unpopular candidate.
Excluding nullifiers might still be justified if one assumes that the government has a compelling
125
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interest in securing juror adherence to the law.7’ Yet this is the very assumption that advocates
of the juror’s right to nullify contest. A juror’s right to nullify is on its face incompatible with a
legitimate governmental interest in preventing nullification. Compromise seems impossible. A
constitutional right to nullify must include a prohibition on all intentional exclusion of potential
nullifiers from juries.
6.17 AT Role of the Jury
6.17.1 This argument is too broad.
Andrew D. Leipold, [Professor of Law, Illinois], “Rethinking Jury Nullification,” Virginia Law
Review, Vol. 82, No. 2 (March 1996).
A second interest allegedly protected by the rule against government appeals is the desire to preserve the righto a jury and, more specifically, toprotect the jury’s fact-finding role.66 If an appellate court had the power to reverse an acquittal, the jury guarantee would arguably be vitiated: the
defendant would no longer have the right to be tried before an independent panel of citizens, but
only the right to be tried by a jury that agrees with the judge. A variation on this argument is that
juries are entrusted with fact-finding responsibilities, and that when they acquit, this is a factual
finding thathe defendant is innocent. More than one trial would let the prosecution circumvent
this finding, by holding a second and third trial until it found a jury willing to convict.67 These
arguments are again too broad. At worst, the general right to a jury would be infringed by a government appeal only if the appellate court had the power not only to reverse an acquittal but also
to enter ajudgment of conviction without a new trial. 68 Current doctrine does not recognize this
distinction, ofcourse; appeals are barred even if the government is merely seeking a new trial. On
the other hand, if the Sixth Amendment requires only that the operative decision be made by the
jury-that is, if it guarantees that no defendant will be convicted without a verdict of his peers-that
right is preserved whether the verdict comes from the first jury or the second.69
126
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