STOPPING THE
RUNAWAY TRAIN:
NULLIFICATION
By The Honorable Shirley A. Tolentino·
"To tell a juror
expressly ofthe
nullification
prerogative is in
effect to inform him
that it is he who
fashions the rule
that condemns."
20
.' iRA MAGA/I:-:E
A
workin g definition of jury
nullification is the process by
which a jury refuses to apply a
Jaw in situations where strict application
of the law would lead to an unjust or
inequitable result. Simply put, a jury
might acquit a defendant on the basis of
conscience, even wben a defendant is
technically guilty. Because of this, it is
believed nullification can lead to serious of justice. To combat
this perceived ill effect., two key issues
must be explored: (I) whether or not
juries should be told about the power of
nullification; and (2) whether jury nullification should be allowed in certain
types of cases, such as those with racial
or religiOUS issues like drug cases or cases involving political figures or persons
of notoriety, and excluded in others.
While the concept of nullification can
be traced all the way back to 1544, one
of the most significant Unites States cases in which jury nullification applies
occurred during the period of slavery.
In United States v. Batti&, 2 Sum. 240,
Fed.Cas. 1042 (C.C .D. Mass. 1835), a
sailor was prosecuted for allegedly seizing a black man with the intent to sell
him into servitude. Concerned that a
Northern abolitiorust's jury would SWllmarily convict Battiste, Supreme Court
Justice Story went to great lengths to
the ilotion that juries may decide
questions of law:
I hold it the most sacred constitutional right of every party accused
of a crime that the jury should
respond as to the facts, and the
court as to the law. It is the duty of
the court to instruct the jury to follow the law as it is laid down by the
court. Every person accused as a
crimi nal has a right to be tried
according to the law of the land,
the fixed law of the land. and not
by the law as a jury may under stand it, or choose, form wantonness or ignorance of the accidental
mistake, to interpret it.
Following this instruction, Battiste
was acqUitted. The strong opinion of
Justice Story supported the concept that
the jury's function lay in accepting the
law given to it by the cow'l and applying thallaw to the facts . As a response
to fuilliste, Congress passed the Fugitive
Slave Law in IR50, which outlawed
helping slaves to escape or impeding
their capture and return . This Jaw was
highly unIJopular in the North, and jury
after jury exonerated escaped slaves
and white accomplices acclJsed of violating the law. Because juries habitually
acquitted in cases of ubvious violation.
Congress repealed the statute in 1864.
Another very interesting early case
was that of William Penn, an early
Quaker follower who was jailed in mid-1600's in the Tower of London for
his religious beliefs and because he published a book, Innocency with Her
Open FaCt:. Bushell's Case, 124 En.Rep
1006 (C.P. 1(70).
When he was advised that he would
be freed if he recanted, he stated, UMy
prison shall be my grav£, I will
budge a jot, for lowe my conscience to
no mortal man. n
Penn was later released but when the
Quaker meeting house was closed by
authorities, Penn was arrested on
charges of staTting a riot when he
preached in the SlreeL At his trial. the
jury acquitted him only to then be fined
and imprisoned themselves. Surely we
today do not want this to be the answer
the so called runaway !.rain.
The next landmark case to address
nuliificationNas 156 U.S. 51, 15
273 (
In that case, two sailors were accused of
a fellow sailor overboard.
The sailors were charged with murder,
and their main defense was that their
actions constituted the lesser offense of
The defendants aske.::f
the judge to instruct the jurors that it
was within their
to return aver·
diet of either
or manslaughter;
the judge refused.
The defendants were subsequently
convicted. On appeal, the United
Stales Supreme Court stated that
lie and private safety would be ill peril
if the principle be established
in criminal may, of right,
gard the law as
to them
court, and become a law unto
selves. h The Court held that it is the
responsibility of the courts to declare
the law, and the responsibility of the
jury to apply the law. The Court
that "'under any other system.
courls... would for every
purpose be eliminated from our system of
gO\ ernment as instrumentalities
devised for the protection
of
and of individuals in their esseutial rights," When that occurs, "our
government wiJl cease to be a government of laws, and become a govern·
ment of men.
by law
is the
of our institution,h, so
Supreme Court.
It is relatively dear that the Court's
holding reveals that while jurors have
do
the Mpower" to nullify the law,
not have the "righth, Therefore, jurors
retain the power to nullify in that if a
criminal jury acquits someone, then the
Firth Amendment's double jeopardy
provision prohibits a defendant form
being tried more than once for the same
Court supra
crime. However, the
made it clear that neither
court not
the defendant's attorney may inform
the jury of the nullification power.
This decision ir case is important
in two
First, ( ne decision is still
good law
the
Court
still has never authorized a nullification
Instruction to
Second, the decision communicattd that the role of a
the facts and
jury is limited to
applying the Jaw as given to it by the
Judge. What comes out of this is the
\0
premise that if the jury nullifies, it must
do so purely on its own volition.
In the case of 47:1 F.2d Ii
App.
70 !972),
1972, the wisdom of the
jurors about their power to nullify is dis,
cussed at length. In that case, lline
members of the Catholic
(the
"D.C.
broke into Dow Chern'ica!
Company and ransacked the offices to
protest the company's manufacture of
napalm, which was being used to bomb
targets in Vietnam and other cOlUltries
of Southeast Asia. A
for jury
No diffeJ'enifrom the
jury system itself, jury
nullification relies upon
human intervention, and
is susceptible to a ceJ'tain
degree offault.
nullification instructions was made
the
the trial judge refw:led.
The Court of Appeals affinned.
Judge Harold
writing for
the majority, conceded that juries have
the power to nullify stating that "the
of
shine on instances of
exercise of its prerogative to
uncontradicted evidence and
instructions of the
Id. at 1130.
Even in light of
statement,
Leventhal was adamant in asserting
must not be instructed on the
right to nullify the law:
To encourage individuals to make
their own determinations as to
which laws Ihey will obey and
which they will penni! themselves
as a matter of conscience to dis·
is to invite cha03. No legal
system could long survive if it gave
every indjviduaJ the option of dis·
with impunity
law
by
personal
was
morally tenable. Toleration
of such conduct would [be] ...
inevitably anarchic.
at 1133-34.
expressly of the nullifiis in effect to inform
it is he who fashions the rule
that condemns. This is an overwhelming responsibility for the juror. Even
though nullification may have a legiti-
mate place in the legal structure,
to the existing system harbor
grave
if it is
to expwlsion and intensification through incorporation in the judge's instruction.
While the majority opinion in
DQugherty was powerful, Chief Judge
Bazelon wrote a strong dissent arguing
that
should be given the
right to nullify laws. He felt there is no
reason to assume that jurors will make
............. , abusive use of their power.
He pointed to the fact that the
system is one of the comerstones of our
entire criminaJ jurisprudence. Even
with this truth, most courts remain firm·
Iy opposed to advising jurors ttlat they
have the
Ie nullify laws,
As previously mentioned, some say it
may be possible to use jury nullification
in certain instances. Against this backdrop. race plays an important part in
the debate over whether or not,iury nullification should be an instruction given
to the jury, No different from the
system itself,
nullification
upon human intervention, and I!> sus'
cel)IiI)le to a certain degree of fault.
the fear is thai race will be such a
prevailing factor when African American jurors serve if the defendant is also
African American that the great ....a.r·
riage of justice will result. The facts do
not support this claim.
In the United States, a large
of the prison population is there
to
offense. For this reason, any argu'
men! for selective jury I1uUificalion in
these cases turns on the issue of race.
This is supported by two strong contentions: (i) there are a large number of
African Americans imprisoned for this
conduct; and (2) there is littlf. Lo be lost
form freeing these offenders.
Government .itatisLics reveal that 13%
of blacks account for drug users, and yet
they comprise 74"/0 of the people incar·
cerated for drug use.' One inference
dra\oVll from these disproportionate statistics is that white criminals are allowed
to remain ill the community untouched
by the criminal law. Some remedies
afforded to them are treatment, not
punishment, while blacks, on the other
hand, find
if the fear is
that a
dealer to go
just by the fact thai he
is
this results in an absurdity and
serves as an insult to the black community as a whole.
The President of the United States
himself Lunfesses illegal dmg possession in his youth, albeit in another
country. From this, it has been suggested that he should have been arrested,
prosecuted, convicted and sentenced
ror hi s criminal conduct. To speculate
why this is so hardly warrants the effort.
[t is enough to note that many African
American men do not get this same
consideration _
There is no denying that African
American involvement in the criminal
justice system is prevalent. While only
one in fourteen white men is under government control, olle-third of the
African American men are under government supervision.' Even with this
sad truth documented in statistics across
the country, there is no supporting
information that black jurors would be
any more lenient on black deiendants
than white jurors towards white defer,dant. There is not even any support for
the premise that black would
agJ'ee to practice seleclive jury nullification if it was prescribed_
Nullification, based on race, does not
and would not prevent crime, so
African Amer;can jurors are not
inspired to nullify. They, too, want
crime out of the system.
Whether or not a jury should be
instructed on the power to nullify has
pros and cons, but one thing is a certaint}', the belief that race alone is a
favorable considerat!on towards nullity
goes against history, human conscience
and common sense. So you ask, jury
nullification truly a runaway train in
which people may arbitrarily decide to
let the accused go free based on some
sense of 'oneness')" I think not!
Endnotes:
I. See Jury Nullification: Should the
Type of Case Matter?, 6-WTR Kan.J.L.
& Pub. Pol'y citing Pierre Thomas, I
in Young Black Men injustice System:
Criminal Sentencing Policies Cited in
Study, Wash. Post, Oct. 5, 1995, at AI,
A4 (describing study) .
Marc Mauer & Tracy Huling. The
Sentencing Project, Young Black Americans and the Criminal J IIstice System '
Five Years Later, 3, The Honorable Shirley A. Tolentino is a
Judge of Ihe Superior Court of New jersey,
Jersey City, NewJersry.
_