Jury Nullification
and the Rule of Law
Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law.
Calvin Coolidge, to the Massachusetts State Senate,
January 7, 1914Do justice, sir, do justice.
Learned Hand
Not long after the end of the original O.J. Simpson trial, I got in a little argument in the mail room with one of my colleagues at Los Angeles Valley College, Farrell Broslawsky, who teaches history and political science. He said that the O.J. verdict was an example of "jury nullification" and that the whole idea of jury nullification was a violation of the rule of law. Since then, I have seen the same argument made elsewhere, and I think it is important to address it.
"Jury nullification" means that a jury finds a defendant innocent because the law itself is unjust, or is unjust in a particular application, and so should not be applied. Since no O.J. jurors expressed or implied opposition to the laws against murder, their verdict was certainly not an example of nullification in that sense. Nor did any jurors admit that they were persuaded of O.J.'s guilt but that they thought it was OK for him to have committed the murders anyway. Instead, jurors simply said that they accepted the defense argument that police carelessness and possible misconduct, motivated by racism, introduced an element of reasonable doubt against the prosecution's case. Since Judge Ito allowed the defense to make that argument (judges typically do not allow defense lawyers to make pleas for nullification), it certainly doesn't look like a nullification case. The jury may have been more suspicious of the police than was reasonable, but that was the luck of the draw in the jury pool--a jury in Santa Monica later found O.J. liable for the murder, under the less rigorous standard of "preponderance of the evidence," rather than "beyond a reasonable doubt," in the civil case against him.
On the other hand, does a jury have the power and the right to nullify the law? Would nullification be a violation of the principle of the rule of law? Yes, and no, respectively. It is common today for judges to tell prospective jurors that they must apply the law as he gives it to them and that their business is simply to determine whether the defendant has broken the law or not. But that is not what was intended by the right to trial by jury in the Bill or Rights. Thomas Jefferson said in 1782 (Notes on Virginia):
...it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.
Then, recommending trial by jury to the French in 1789, Jefferson wrote to Tom Paine, "I consider...[trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution...."
One may say that Jefferson is not talking about nullification, but just about a jury taking the interpretation of the law into its own hands--though that is already well beyond what a jury is allowed to do now, especially if a jury undertook to apply its own interpretation of the Bill of Rights. On the other hand, we have the District of Columbia Circuit Court of Appeals, in Unites States v. Dougherty, 1972, saying:
[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.
Indeed, if juries do not have the right and power to nullify the law, we must face the fact that Harriet Tubman, one of the great heroines of American history, would and should have been guilty of multiple federal crimes by violating the fugitive slave laws. That is a morally revolting prospect, but judges today who reject nullification must confess that they would enforce the fugitive slave laws and convict Harriet Tubman. If they were to honestly admit as much, and hold themselves powerless to disobey unjust and morally despicable laws, they should be told that "obeying orders" was not accepted as a defense in the Nazi war crime trials at Nuremberg.
It is tempting to say that today we don't have laws like the "fugitive slave laws." That would be a serious self-deception. The prisons are full of people who have done nothing wrong, except be in possession of a "controlled substance" that the federal government, at least, has no authority under the Constitution to "control." People dying of cancer or AIDS have been arrested and jailed just for growing and smoking marijuana, the only thing that enables them to eat, take their medication, and stay alive. Despite the passage of medical marijuana laws in many states, as far apart as California and Maine, federal prosecutors have viciously targeted medical mairjuana activists, who are often very ill themselves, and have found pliant judges who prohibit medical necessity defenses.
But must we simply accept such possible injustices in order to uphold the rule of law? By allowing jury nullification, do we not license the misuse of the principle, as when Southern white juries would acquit KKK'ers for murdering or terrorizing blacks or Jews? Unfortunately, as long as we have trials, by jury or otherwise, it will be possible for bias to misuse the law and perpetrate injustices. KKK'ers would have gotten acquitted because a large part of (white) public opinion, and the staff of the courts themselves, was biased in their favor. Regardless of the duties of judges or juries, a means was going to be found in such circumstances to prevent their conviction. The remedy for that is a system of checks and balances. A local jurisdiction, whether in police or courts, that allows KKK'ers to murder people and get away with it is violating the 14th Amendment by denying the "equal protection of the law," making itself liable to federal civil rights intervention, as was vigorously pursued by Ulysses S. Grant, before the shameful capitulation of the Republicans, after Grant was gone, in 1876.
Does jury nullification contribute to, rather than mitigate, such judicial misbehavior? No, because it is part of the system of checks and balances itself -- a check against the bias of judges and the irrationality and corruption that creeps steadily into the law, as irresponsible legislators and judges think about things other than justice. Jury nullification is not a violation of the rule of law because it is part of the rule of law. It represents a basic misconception of the principle of the "rule of law" itself to say that it means that everyone absolutely must obey the law until the law can be changed by the appropriate processes. Indeed, that conception of the rule of law would forbid civil disobedience, which was justified by Martin Luther King, quoting St. Augustine, that, "An unjust law is no law at all." But how can we have the rule of law if we accept something like that? How can people just go around judging for themselves whether a law is just or not? The answer is, that they have to, and that is simply the principle of moral conscience. The rule of law is not contrary to that; for the rule of law is not an injunction to blind obedience. Instead, the rule of law is a principle of the limitation of the authority of government.
To be "ruled by laws, not by men," is the old expression. Now, a jury nullifying a law or a protester practicing civil disobedience is not engaged in ruling. Instead, they are doing the precise opposite: negating the instructions and actions of government. The principle of the rule of law does the same kind of thing, for it means that the authority and power of government and of individuals in office is limited to those spheres, those issues, and those actions that are specified by the law. The rule of law denies to government unlimited or discretionary power and authority. The rule of law is thus part of a system of checks and balances to prevent dictatorship and despotism. Because of that, it is curiously the case that you do not need to have laws to have the rule of law: for the whole system of Common Law developed through the practice of the courts in considering claims that someone had committed a wrong. The original purpose of trial by jury in the Magna Carta was similar. The threat, indeed, addressed by the Magna Carta was of the laws and judges of King John. If Magna Carta juries could not nullify the laws of King John, or ignore the instructions and rulings of his judges, trial by jury would have been a useless protection. But the Barons, in obtaining King John's pledge, as Lysander Spooner wrote in 1852, "were engaged in no such senseless work as that."
The jury is the last line of defense, the last check and balance, against tyrannical government, if, that is, it is charged with determining the justice of a case and not just with blindly applying the law as given by a judge. It was become a very interesting perversion of the sytem of checks and balances when, as we are told, the Constitution means whatever the Supreme Court says it means but that we are then expected to obey without resistance. Since the Supreme Court has in general, since the New Deal, interpreted the Constitution to mean exactly the opposite of its original purpose, which had been to establish a federal government of limited and enumerated powers, but which now seems to have gotten us a national government of unlimited and plenary powers, which can legislate or regulate in any matter whatsoever, what we have seen is the destruction of the rule of law, through the arbitrary authority of an irresponsible court, rather than its preservation. When the citizen demands that the government obey the Constitution, and the government replies that it is obeying its interpretation of the Constitution, which gives it authority and discretion far beyond that overthrown in the American Revolution, then the whole idea of the "rule of law" has been turned around to justify the very kind of arbitrary, discretionary, and unaccountable authority that it was supposed to prevent.
The interpretation of the law cannot be trusted to those with the power to enforce it also. The separation of powers between the judiciary and the executive in the federal government was not sufficient to prevent this, as Thomas Jefferson already understood: "How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?" The federal courts are part of the federal government and will tend to take its side in the long run. This is precisely what has happened.
Hence we return to Jefferson's maxim that only trial by jury can hold a government to the "principles of its consitution." Since, as a matter of fact, a jury can practice nullification even if the judge tells it that it can't, because its deliberations are secret and unrecorded, trial by jury is still, as long as jurors are brave and informed, one of the most important protections for freedom. Most Americans on jury duty blindly obey the judge, but occasionally feelings run high enough in important cases for juries to ignore the judge and do the right thing.
In defending the rule of law but also complaining about judicial activism, Thomas Sowell says:
A judge cannot "do justice" directly in the case before him. This view was strongly expressed in a small episode in the life of Justice Oliver Wendell Holmes. After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand's parting salute was:"Do justice, sir, do justice."
Holmes ordered the carriage stopped.
"That is not my job," Holmes said to Judge Hand. "It is my job to apply the law."
[The Quest for Cosmic Justice, The Free Press, 1999, p. 169]
Although Sowell is properly concerned about the erosion of the rule of law by judicial activism in the service of "cosmic" and totalitarian ideology, he and Justice Holmes are wrong in this. The law is supposed to be an instrument of justice, and judges, like any morally conscientious persons, have a duty to see that justice is done. What is required, of course, is a proper sense of justice, which is to respect things like property rights that have been trashed by 20th century American courts. As it happens, property rights are protected by the Constitution, the supreme law of the land. Any judge who threw out an indictment that violated the "Takings" clause of the Fifth Amendment is thus very properly repecting the law -- respecting it as it has not been respected by even the Supreme Court since the New Deal. It is only a belief in blind obedience (to the dishonest Supreme Court), not the rule of law, that prevents judges from doing this.
Recently, a federal judge in Los Angeles prohibited a cancer patient from smoking marijuana while on bail, even though he would become more ill, and might even die, without it, just because such an exemption would violate the very laws that the patient was being accused of violating. The judge, however "sympathetic" to the "plight" of the dying man, could not authorize a violation of the law. However, in a related medical marijuana case, the Ninth Circuit Court of Appeals subsequently sent back a judgment for reconsideration because the trial judge had not allowed "medical necessity" as a consideration in his opinion. "Necessity," indeed, is an old common law defense: If someone must violate a law or die, one has a perfectly valid reason for violating the law. No "judicial activist" made this up, but the trial judges in both the cases mentioned would not allow it. Who is respecting the rule of law in these cases? The judge who sadly knows that he may be condemning a man to death, or a judge who appeals to an ancient and reasonable exception to laws that are inappropriately applied? In the former, the judge is both a bad judge, rejecting the existing tools of justice, and a bad man, for not at least recusing himself lest he be forced by a perverse duty to do evil. One hopes that something like applying the Nuremberg Laws or the fugitive slave laws would have been too much for Justice Holmes.
I should note in closing, however, that government conducts much of its business today through administrative rulings and penalties that are imposed summarily, without trial by jury, or often without trial at all. This is becoming the most convenient instrument of tyranny open to modern American government. At the same time, judges who are hostile to nullification, and who have the power of arbitrarily imposing "contempt of court" penalties without trial by jury, or even legal explanation, are beginning to use their powers to intrude on the deliberation processes of juries, trying to make jurors answerable for deliberations that traditionally and constitutionally have been secret, unrecorded, and unreviewable. But, as Jefferson would have said, it is not surprising to see such devices used, by those with tyranny in their hearts, to expand their own power and the domination of government.
Fully
Informed Jury Association