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Fall 2006
Volume 06, Number 1

Newsletter on Philosophy and Law

Articles

Jury Nullification, Democracy, and the Expressive Function

Christopher Griffin
Northern Arizona University

One of the core theses of my doctoral dissertation was that democracy is an intrinsically just collective decision making procedure because it publicly affirms the equal basic social standing of each minimally morally competent member of societies where collective decisions are necessary. The idea that legislative procedures generally, and democratic procedures in particular, have a public affirmation function was inspired by Joel Feinberg’s analysis of criminal punishment which, he argued, was distinguishable from other forms of authoritative harsh treatment because punishment includes essentially an expressive function.1 While Feinberg had focused on a community’s moral assertions in the application of law, I had been led to think about moral assertion via public institutions in the antecedent making of law. In this paper I want to examine the connection between these two ends of the legislative continuum—the procedures for making law and the procedures governing the application, or non-application, of law to specific cases. In particular, I examine the phenomenon of jury nullification.2 I suggest in this paper that jury nullification may have a significant role to play in political justice despite its apparent clash with democratic principles and the rule of law.

It is no simple task to define precisely what jury nullification refers to in the literature that addresses it. At a minimum, we can say that jury nullification involves a jury rendering a verdict that is at odds with the verdict that would seem logically to follow from the application of a valid law under which a criminal defendant is accused and the evidence is presented at trial. The discretion of jurors to render such verdicts emerged from a series of now legendary developments in the practice of trials by jury in English common law—the decline of the attaint through which jurors could be punished or otherwise harmed for verdicts deemed to be incorrect as determined by subsequent juries or by judges, the prohibition on an authority trying an accused twice for the same criminal offense, and the jury’s charge to render general verdicts as opposed to mere special verdicts (by which jurors limit themselves to determine only the facts, leaving to the judge the matter of applying the law to these facts to decide the guilt or innocence of the accused).3 The criminal law operates in such a fashion that the jury may render any verdict they choose and they may not after the fact be held accountable for it—in the form of punishment nor even by being compelled to explain the basis of their decision.

The immunity from review, however, does not extend to the verdicts. If the jury convicts, that verdict may be set aside by the judge, should the judge determine, for instance, that the evidence presented at trial does not sustain the guilty verdict. However, if the jury yields an acquittal, that verdict is final and may not be overturned, even when it is obvious that the evidence clearly indicates the accused to be guilty of violating the applicable law. This liberty of the jury to render verdicts, either for conviction or for acquittal, regardless of even their own findings of fact under the law, would seem to fly in the face of democratic principles and the rule of law.

For the sake of clarity, I will treat democracy as consisting in two basic elements: (1) popular sovereignty, in which the people who are to be governed by the laws are also author of those laws, and (2) the laws are determined by a majority rule procedure that distributes equally the political power to make law.4 It is assumed that these principles are consistent with representative legislative assemblies, election to which is determined in a voting scheme where each minimally competent member of the society gets an equal vote.5 The rule of law requires, among other things, that persons be equally subject to valid legislation publicly declared. The conjunction of democratic principles and the rule of law implies that justice requires that juries apply the law to the evidence and render a verdict accordingly. There is something amiss when a law that has been duly passed after explicit popular deliberation6 is disregarded in an individual case because jurors, either for no reason or for unjust reasons, exercise their discretionary powers for acquittal in the face of clear evidence of guilt. Instances of such cases are frequently thought to be found in trials of white defendants acquitted by white juries of murdering black victims in the American south despite clear evidence of their guilt.7 Not only are acquittals that manifest grievous miscarriages of justice permanent,8 they also bear, as a flip side to punishment, an expressive significance of their own. If, as Feinberg argued,9 punishment vindicates the law, acquittals that are enforced by the criminal justice system call into doubt the validity of laws not enforced in cases where they have obviously been violated. In addition, victims of criminal activity where the accused are acquitted despite the evidence are not afforded the equal protection of law.10 If there is good reason for law to be made democratically, there is further injustice.

The jurors who acquit are not elected representatives of the community; if they rely upon some standard independent of the valid law, they substitute their standard for that which ostensibly represents the community’s considered judgment on the matter at hand. Additionally, because jury verdicts neither make law nor establish precedent, they issue a judgment based upon standards that they will not themselves be subject to, unlike legislatures who are subject to their legal enactments. Schopp summarizes the anti-democratic nature of juries who nullify nicely: "By engaging in nullification, jurors—who are not democratically elected-reject laws established through a democratic process in order to apply standards—to which they are not themselves subject—to individuals who had no opportunity to vote in the process by which those standards were selected."11

It would thus seem that from an analysis of the liberties of jurors, the rule of law, and democratic principles, there is good reason to be skeptical about the legitimacy of nullification. Might jurors be disabled then from undertaking nullification? Not without substantial attacks on well entrenched elements of law: constitutional prohibitions on double jeopardy, juries rendering general verdicts, or juror immunity from censure based upon the verdict rendered. Such repeals would render juries unrecognizable. So, in a sense, the liability for jury nullification is destined to remain so long as juries as we know them continue to exist. The central question surrounding nullification in the present day involves the manner of swearing in and instructing jurors to their trial function. This question is unhelpfully but often formulated by asking whether nullification ought to be regarded as a (mere) power or a right.12 If nullification is a juror right, advocates argue, then they ought to be informed of their discretionary power by the judge at trial and ought not to take an oath to the effect that they will take the law from the judge and apply it (mechanically) to the facts as they find them. Further, if nullification is a juror right, it is argued that defense attorneys should be permitted in the course of the trial to urge the jurors to disregard the applicable law and render a verdict that reflects their evaluation of both the law and the facts. In contrast, those who regard nullification as a mere power treat this jury capacity simply as a by-product of the historical development of the conjunction of the elements mentioned above—general verdicts, double jeopardy prohibitions, and immunity from post-verdict punishment and review. Instructing juries that they may rightfully go beyond determining the facts in a case or that defense counselors might urge them to do so would ensure that "our government will cease to be a government of laws, and become a government of men."13

Yet there is an important irony in this observation because the doctrine of jury nullification itself developed as part and parcel of the movement toward the rule of law and law reflecting popular will. When trial by jury eventually replaced alternative forms of trial (trials by oath, ordeal, and battle) in England, they were primarily public in nature, giving the local population access and influence over the achievement of justice. By the close of the sixteenth century, juries deciding cases were able to render a verdict according to their own consciences and so were not bound by evidence or the judge’s instructions. Even by this time, acquittals were final, though guilty verdicts deemed by the judge to be unfair could elicit reprieves for convicted prisoners and recommendations for pardon from the king.14 Jurors themselves officially earned immunity from punishment for their verdicts as a result of the Edward Bushell trial in 1670, though Levy suggests that in fact punishing jurors became rare in the wake of the acquittal of Nicholas Throckmorton in 1554.15 The bulk of these achievements of English common law were transmitted into the colonial legal systems in America, and American colonial trials continued to entrench jury powers as elements in the movement toward popular sovereignty over non-representative royal prerogative and toward the rule of law. The decision in the colonial trial for libel of John Peter Zenger in New York in 1735 reaffirmed the jury’s role as determining not merely the facts but also the law.16 In the colonies especially, the link between trial by jury and escaping local oppression and tyranny at the hand of royal governors was strong, partly because these governors were seeking ways around17 jury trials since juries had demonstrated a willingness to acquit despite judicial instructions to apply the law to even uncontested evidence. The state constitutions of the seceding colonies placed a right to trial by jury behind only protecting religious freedom in the list of constitutionally protected individual rights, and at the Constitutional Convention of 1787, trial by jury was the first right recognized.18 In Federalist 83, Hamilton comments,

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; of 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."19

At the point of American independence, then, it was well established that while there was a presumption that juries were the proper judges of fact and the court the best judge of law, this presumption was not in fact binding and, in the words of Supreme Court Justice John Jay, "both objects are lawfully with [juries’] power of decision."20 Nullification was an essential component in the aspiration for a rule of law, the application of which law reflected the community conscience on justice. Jeffrey Abramson writes that "the jury emerged, at the time of the American Revolution and through the early days of the nineteenth century, as a premier institution of local self-government, empowering the enfranchised with an effective voice to interpret and enforce the laws in their community."21

It might be objected here that the political system actually established in the United States just after the colonial secession was hardly a democracy in the sense I defined above, so that jury nullification, while perhaps serving the ends of rule of law and protection of individual liberty, was not established toward the end of democratic rule. There is something to this line of thought, for as the U.S. legislative bodies emerged as sovereign entities, the willingness of courts to recognize juror discretion recedes. In part, this decline occurs because the laws which might be disregarded by nullifying jurors would not have their origin in a parliament in which they had no representation, but rather in their own legislatures. In addition, there was a shift in the conception of the democracy and consequently its relationship with the rule of law. Democracy had developed, as Abramson’s remark quoted above suggests, as local self-government with a strong protection of individual liberty. Juries could be expected to know the local convictions about the requirements of justice. The unification of the separate states into a growing federal structure required, under the commitment to the rule of law,22 consistency and unification of the standards against which people were held responsible. In a sense, the referent of the term "people" had changed. By the 1850s federal judges were steadfastly refusing to instruct the jury that they could rightfully disregard the law, and preempting defense counsel arguments to the jury to nullify the law.23 While the ability to render without liability verdicts independent of what would follow from applying the law to the facts remained with juries, we might say that the criminal law in the United States eventually arrived at the position that is consistent with democracy properly construed and the rule of law—local juries were no longer thought authorized to judge the acceptability of the democratically established law in question. From the point of view of political theory adequately justifying democracy and the rule of law, there might be an inevitable concession to the possibility of discord between verdict and the law as the price of maintaining trial by jury as we know it, but a concession is not a sanction. Jurors ought not to be encouraged, by judges or defendants and their counsel, to disregard the law before them.

Are there any lessons to be drawn from consideration of the historical development of jury nullification? I wish to make both a methodological point and a substantive point. Methodologically speaking, the history is relevant for the question of what we ought to do in the here and now. Henry Sidgwick, in commenting on the relationship between ethics and politics, emphasizes that the question to which mankind generally requires an answer is, "What is a man’s duty in his present condition?" Answering such a question, he correctly explains, is not exhausted by a successful execution of the development of ideal theory, either of ethics or politics, or their conjunction.24 It requires as well attending to our "existing circumstances," and our existing circumstances are hardly to be understood without tracking the stages of development of our society. John Rawls makes the same point in Theory of Justice, concluding that at certain stages of historical development, it may be the case that political rights to participation in the public scheme are justifiably distributed in unequal fashion.25 Nonetheless, his argument for the two principles is an undertaking of ideal theory, which he regards as a preliminary move to answering Sidgwick’s question. Joel Feinberg’s four-volume work on the moral limits of the criminal law in a liberal democratic society is also a work first and foremost in ideal theory—he writes, "Our question can be understood as one posed for an ideal legislature in a democratic country. …This book is a quest not for useful policies but for valid principles."26 At the level of principle, a democratic country with a commitment to the rule of law may find no place for treating jury nullification as a rightful departure from legal rules, and jurors may not regard themselves from this point of view as enjoying a lawful discretion to disobey valid law. Robert Schopp’s sustained treatment of this specific issue from this idealized point of view is, I am inclined to conclude, compelling.27 But even if this is correct, it leaves open the possibility that when we take stock of our society’s actual state of development, jury nullification may play a remedial role, even a significant role. This possibility is not ruled out by the entailments of ideal theory.

Schopp’s cogent analysis of jury nullification is a work in ideal theory. This is illustrated in the simplifying assumptions he makes regarding the normative structure necessary for determining whether there can be any legitimate role for nullification. He opts for a broad characterization of contemporary liberal theory that extends from democratic political procedures to a criminal justice system. While such liberal political principles "provide a philosophical foundation for legal systems such as those established in the United States," he goes on to offer the disclaimer that he does not assume that "criminal justice systems currently operating in the United States are ideal legal institutions."28 I will not take issue here with the broader commitment to liberal political theory,29 but I do want to focus on the democratic element, comparing our actual institutions with the ideal.

Why is the democratic element crucial? In arguing that instructions to jurors that they may rightfully disregard the law are unjustified, Schopp relies upon the facts that the laws are established by a procedure that treats everyone equally,30 and that the laws express the conventional public morality. Nullification undermines this state of affairs. In general, nullification entails that criminal defendants are held to a standard—that of the jurors—distinct from that which the citizens at large have determined democratically. More specifically, when acquittals are the result of nullification and there are identifiable victims, the nullifying acquittals publicly express these victims’ less than equal standing before the law, a clear failure of respect. It seems that for these connections between equal standing, democratic procedure, and the laws conceived of as expressing the community’s convention public morality to obtain, the actual procedure must genuinely live up to the democratic ideal. The degree to which the actual process deviates from the ideal seems correspondingly to diminish the confidence we can have that laws resulting from the procedure genuinely express conventional public morality, or at least, that they express it in a way that manifests the equal basic standing of each of the members of the community. Notably, this applies not just to nullification, but presumably more generally to the general practice of punishment. The degree to which punishment may succeed in expressing the moral condemnation of the community, and perform the various derivative expressive functions that Feinberg identified, seems to depend upon the degree to which the legislative enactments have a genuinely democratic pedigree.
So, then, we must ask to what degree our actual procedures compare with the democratic ideal. This is undoubtedly a far-ranging question beyond the scope of this piece, but a few observations might be made. First, the manner in which concentrated wealth is converted into political influence raises substantial questions about the degree to which legislative representatives genuinely represent their constituents or their judgments about which ends ought to be pursued through law. Even the perception that legislative influence is subject to the highest bidders has led some law makers to attempt substantive reform, but such reforms depend for their success on the support of those who are suspected of the behavior needing reform. A contributing factor but an independent second worry is the fact that, apart from more local referenda, exercising democratic prerogative as a voter is typically restricted to choosing between only two viable candidates. The legislative structures, for historical reasons that make alternatives unlikely, is stably dominated by two parties. Given the complexity of system of rules that have become necessary (or at least entrenched) in a society as large and heterogeneous as is ours, it seems nothing short of incredible that the two existing political parties adequately give voice to the range of interests that the population desires to see manifest in their public institutions. Thirdly, the procedures for voting and registering to vote in the recent history of our nation has been such that the national government has been prompted to renew (in 2006) federal oversight of the voting and registration laws of several states, counties, and towns.31 This last matter is independent of the controversies over the procedures for legislative redistricting in response to changes in population—a procedure whose participants are again overwhelmingly from only two political parties. Finally, the recent record of various jurisdictions actually executing the act of an election is troublesome, with problems ranging from the form of ballot to mechanisms relied upon for recording and tabulating votes. Considerations such as these surely contribute to the persistently low voter turnouts of the voting age population. All in all, casting a vote in our present representative scheme seems pretty far removed from a judgment that the laws one lives under are an expression of popular will under conditions of equality.

But how might these observations about our actual institutions contribute to a foundation for thinking that jury nullification might play a significant role in the achievement of justice in the here and now? If juries are asked to apply laws that have resulted from a procedure which can plausibly be doubted as being genuinely democratic, then their becoming less rule-bound as the result of instructions that inform of a power they possess is less objectionable. This is not to say that a jury of twelve (or fewer) persons is more likely to be able to voice a decision that expresses the popular will in the form of a general rule. But that is not what the jury is charged with doing. They are charged most generally with getting to a just outcome in a particular case. If we think a just outcome is something that we get from reason then, as Locke thought, it might be the case that justice is easier to discern than the positive laws of commonwealths, "as reason is easier to be understood than the fancies and intricate contrivances of men, following contrary and hidden interests put into words."32 The premise of divided government with checks and balances is the assumption that if you place power into the hands of persons you ought to expect sooner or later that it will be used in their interests. Some of the charges considered above against our actual system substantiate this assumption. Lawmakers in our system enjoy substantial power and it is just isn’t clear that there is a substantial alignment of interests between these persons and the mass of ordinary citizens. By contrast, it is difficult for jurors to use their limited power to advance their own self-interest by abusing it.
Thomas Jefferson wrote in 1789, "Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislature. The execution of the laws is more important than the making of them."33 Of course, we do not face such a decision, but it seems to me that the expressive potential of the criminal law and the verdicts it achieves in the actual world are dependent upon the integrity of the democratic system. To the extent that the latter is undermined, the former cannot be relied upon to undercut the role of an active jury. It is true as well, however, that unless the expressive function of the criminal justice and the verdicts it renders is extended from the integrity of a properly democratic system, the public affirmation of equal basic social status rings hollow. Perhaps the best measure of the integrity of the democratic system is achievement of actual criminal trial procedures in which there is no room for sanctioning nullification.

Bibliography

Abramson, Jeffrey. We the Jury: The Jury System and the Ideal of Democracy. New York: Basic Books, 1994.

Christiano, Thomas. The Rule of the Many: Fundamental Issues in Democratic Theory. Boulder: Westview Press, 1996.

Conrad, Clay S. Jury Nullification: The Evolution of a Doctrine. Durham: Carolina Academic Press, 1998

Feinberg, Joel. "The Expressive Function of Punishment," The Monist, 49 (1970): 397-423.

----. Harm to Others: The Moral Limits of the Criminal Law. New York: Oxford University Press, 1984.

Kadish, Mortimer, and Kadish, Sanford. Discretion to Disobey: A Study of Lawful Departures from Legal Rules. Stanford: Stanford University Press, 1973.

Levy, Leonard. The Palladium of Justice: The Origins of Trial by Jury. Chicago: Ivan R. Dee Publishers, 1999.

Locke, John. Second Treatise of Government. Edited by Macpherson. Indianapolis: C.B. Hackett, 1980.

Madison, James, and Hamilton, Alexander, and Jay, John. The Federalist Papers. Edited by Isaac Kramnick. New York: Penguin, 1987.

Rawls, John. A Theory of Justice. Harvard: Belknap, 1971.

Schopp, Robert. "Verdicts of Conscience: Nullification and Necessity as Jury Responses to Crimes of Conscience," Southern California Law Review, 69 (September 1996): 2039-116.

Sidgwick, Henry. The Methods of Ethics. (reprinted from 7th ed., 1907) Indianapolis: Hackett, 1981.

Endnotes

1. See Feinberg, 1970.

2. I first examined jury nullification in a seminar paper for Joel, but the paper was largely a piece covering the historical background that shaped the contours of the modern controversy over nullification rather than a philosophical solution. As it turns out, the clearest analytical treatment of jury nullification comes from another contributor to this volume, Robert Schopp (1996, especially §§III-V), most of whose conclusions I accept; Schopp makes some simplifying assumptions to which I return later in this paper.

3. For an informative and concise (though unevenly written) discussion of the historical development of the trial by jury, see Levy (1999).

4. Thomas Christiano (1996, 3-5) adds a third element, institutions for public deliberation.

5. This account of democracy is narrower than is often found in common parlance and, moreover, the literature addressing jury nullification, wherein "democracy" can refer to a wide variety of popular institutions, including those that in fact constrain democratic prerogative, such as constitutional protections against laws that violate individual liberties of various sorts.

6. Perhaps even by public referendum.

7. See Abramson (1994, 61-2). Abramson himself argues for jury nullification as being straightforwardly consistent with the democratic ideal, though his conception of democracy is broader than that defined here. Even Abramson seems to concede the dark side of nullification in explaining the waning of the role of the jury. See, however, Conrad (1999, ch. 7), for the not implausible claim that in racist acquittals of the American south, many severe injustices must have occurred in the criminal justice system prior to the trial, including perjury by citizens and law enforcement officials in the presentation of evidence, and the outright refusal by community members to confirm even basic facts about the crimes. The implication is that such prior injustices would have substantially compromised the trial proceedings—at least in the form of admitted evidence—in ways that make it inaccurate to conclude that jury nullification itself constituted the injustice. But, as Abramson points out, the jury acquittals were final and irrevocable. The other injustices within the criminal justice system, by contrast, were in principle remedial.

8. Civil proceedings might form a response to miscarriages of justice, but civil proceedings lack the same ability that the criminal law does for expressing the public’s moral condemnation. In some cases, the Dual Sovereignty Doctrine enables a second sovereign authority lawfully to bring criminal charges for the same action for which an acquittal was given by an initial authority.

9. See Feinberg (1970, § II). In fact, Feinberg’s example for vindication of the law is punishment of whites for killing blacks in Mississippi.

10. See Schopp (1996, 2074-2076; 2105-6) for a more detailed account of the expressive implications of the criminal justice system. Note there, and throughout the article, the central role Schopp assigns to criminal prosecution and conviction in publicly affirming the victim’s equal standing in the community.

11. Schopp (1996, 2058).

12. It is clear that the terms "power" and "right" are not used in their Hohfeldian senses. For an effective illustration of this, see Schopp (1996, 2062-4). The origin of the language may be owed to Alexander Hamilton, arguing for the defense in People v. Croswell 3 Johns. Cas. 337, 368 (N.Y. 1804). See Kadish and Kadish (1973, 50-51).

13. Sparf & Hansen v. US, 156 U.S. 51 (1895). This ruling in effect established the mere power view in US criminal law.

14. See Levy (1999, 45-6).

15. Ibid., 49. Bushell was threatened with confinement and other punishments for his role in acquitting Quakers William Penn and William Mead, but Bushell won an appeal to a higher court. Levy points out that the liberty of the juries even then left verdicts subject to a variety of irrational prejudices, but illustrates how immensely better off English common law subjects were with jury trial compared with those on the continent whose legal systems were built around the Inquisition.

16. Libel cases during the colonial period such the celebrated Zenger trial must have been especially important; many of the state constitutions of the original colonies to this day specify that in cases of libel, a jury properly determines or judges both fact and law. See the constitutions of Connecticut (Art. 1, § 6), Delaware (Art. 1, § 5), New Jersey (Art. 1, §6), New York (Art. 1, §8), Pennsylvania (Art. 1, § 7). Maryland and Georgia maintain constitutional provisions that juries are generally determiners of law as well as fact, and not restricted to this function in cases of libel only—Maryland (Art. 23), Georgia (Art. 1, §1, paragraph XI).

17. See Levy (1999, 86-8). The chief mechanism for circumventing jury trials—courts of Admiralty—was extended to the American colonies by the 1765 Stamp Act; these courts enabled a single person to serve as judge and jury and were part of the taxation scheme that fueled the American secession.

18. Ibid., 91.

19. Madison, et. al. (1987, 464). Interestingly, Hamilton concedes in this same essay (468-9) that the "proper province of juries be to determine matters of fact," but he goes on to say that the law and the facts are in most cases so complicated as to make it impossible to separate them, a position Thomas Jefferson also asserted: see Levy (1999, 69).

20. Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794).

21. Abramson (1994, 89).

22. See Kadish and Kadish (1973, 49).

23. As noted above, the 1895 decision in Sparf & Hansen v. US decision effectively settled the issue.

24. Sidgwick (1981) Book I, chapter 2.

25. Rawls (1971 § 39, p. 247).

26. Feinberg (1984, 4).

27. It is worth noting that Schopp himself does not draw the conclusion that jurors are never morally justified in nullifying; in fact, he sensibly makes room for this possibility based upon conscientious conviction that has survived a process of careful and responsible reflection (2107-8), but he implies that such cases would only occur in extraordinary circumstances. When they are morally justified, this justification is not itself accommodated within the system of criminal justice, however.

28. Schopp (1996, 2066).

29. In either the structural or substantive form, as Schopp discusses them. Both include a commitment to democracy. See §§IV-V.

30. Following Feinberg, Schopp views liberalism as a commitment to self-determination with both a public and a non-public domain; equality is essential to public domain.

31. I refer here to the Voting Rights Act, renewed four times since its initial passage—most recently in July of 2006—which charges the U.S. Department of Justice to review and approve changes to legal policies addressing voting or registration to vote.

32. Locke (1980, Chapter II, §12).

33. In a letter to L’Abbe’ Armond, in The Writings of Thomas Jefferson, edited by P. Ford, as quoted in Kadish & Kadish (1973, 49); see http://olldownload.libertyfund.org/EBooks/Jefferson_0054.05.pdf, p. 260.

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Fall 2006 Volume 06, Number 1

Fall 2006
Volume 06, Number 1