Introduction
Jury nullification is a highly researched and discussed concept, where a jury in America has the rights to give mercy in criminal trials where they find that a defendant is legally guilty but is morally upright. The nullification power is basically an integral part of the jury’s rights and therefore regardless of the evidences and law, nullification cannot be questioned in any case.[ CITATION Hor08 \l 1033 ] The above explanation is strong enough to raise certain questions based on the justification of this power, and there is a lot of consistent debate about the fact whether this power is used ethically or if there may be personal and emotional biases creeping into it.
There is lot of research, related to this topic that has taken place in the past and the primary reason of this research is to understand that how the power of nullification is used?[ CITATION Ost01 \l 1033 ] This is actually a very subjective and opinion based approach to analyze this issue, and even the framers of constitution believed that criminal justice may at times have scenario’s where the normal law boundaries may not be able to accommodate a particular situation and that is where the concept of nullification comes into play. [ CITATION Hor08 \l 1033 ]In this paper we will look at the justification of nullification from different perspectives and we will deduce from the various arguments whether nullification power stands as an asset to the criminal law and is one of the major factors that can force to take an unethical but logical decision or it is a tool which can be misused to create obstruction in the way of unbiased decision making.
The basic aspect of nullification has been present in the history, a few decades ago during the Vietnam war there were several instances when the convicts were found legally guilty but morally they were right and were not liable to be punished, such instances were also analyzed by the framers of constitution and they believed that a jury is above the power of governments as far as criminal law is concerned and must have the highest powers in decision making as well and that is how the concept of nullification came into play. [ CITATION Smi07 \l 1033 ]This is nothing more than a common sense justice and can be better explained by the fact that there are times when it is very much visible that the one who is prosecuted is not guilty in a moral sense but somehow falls into a category where he can be termed as guilty in legal sense. [ CITATION Ost01 \l 1033 ]
There is another important fact that we must include in this discussion is about the use of nullification only in scenarios where mercy is in question, and it has not been a common observation that the nullification powers are used in order to drive vindictive verdicts. In 1895 there was a comment made by the Supreme court of United States about the case Sparf Vs United States, the comment basically said that the role of jury is to see the facts as shown and apply the concept of law to the same in order to come to a conclusion however there are a couple of incidences between 1850 and 1890 where violations of fugitive slave act and Halsted Acts were not sentenced by the jury on the basis of reasonable grounds. [ CITATION Hor08 \l 1033 ]
The correct application and concept of Nullification
Once again we come back to the discussion based on the justification of nullification and it will be interesting to see that during the mid of nineteenth century Lysander Spooner introduced his views on this issue via his book An essay on Trial by Jury (1952), he presented his views with the argument that
“How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?"
The primary reason of this arguments is reasonably presented with the comment that a government is chosen by people and the laws are hence made with the initiative taken by people, then it should not happen that the rules agreed by people collectively can be nullified by a jury, Spooner did not just criticized the idea but he gave another perspective to it by mentioning that in such decisions and situations all five tribunals made by constitution i.e. the senate, the house of representatives, the judiciary, the executive and the jury should agree on a decision before any such exception is made. [ CITATION Ost01 \l 1033 ]
There were several views presented on this however this concept was not accepted with the claim that people choose the body that makes laws and the same body has given the right to Jury to take decisions that may nullify the law so the nullification concept may not be under question, but it is important and very critical to infer that in which situation should this concept be applied.
There are some very interesting views on this topic which are presented by Jeffrey Abramson, a professor of political science at Brandeis University. He has presented his thoughts on nullification in his book we, the Jury. There is a wide range of discussion and there are some major controversies related to this issue which are discussed, for example right from the trial by jury instances in colonial history to race biases in death penalty cases, he covers all of them, highlights and criticizes the various decisions taken all this while.[ CITATION Abr94 \l 1033 ] Abramson gives a detailed account of the seventeenth century “cry” for the trial by jury and mentions that "...the right of juries to decide questions of law became a rallying cry for political and religious minorities throughout the seventeenth century; in the colonies it turned local juries in times of crisis into centers of resistance to parliamentary law”. [ CITATION Abr94 \l 1033 ]
There is a very interesting contrast that Abramson brings about the theory of nullification, he expressed that despite the fact that the jury existed in the society as a law protecting body; during the American Revolution and in the early half of the nineteenth century, there was a sudden decentralization of power as may be the people understood that they laws which are made with the participation of different communities forming a government to select and regulate laws, but ideally it all went back from the government to the Jury and rightly at a local level in the hands of citizens, which is a definite threat to the law. [ CITATION Abr94 \l 1033 ]
There is another view from Abramson that "When power over the law shifted from jury to judge, democracy shifted in its nature as well. From Battiste to Morris to Sparf, federal judges worked out a political theory that severed the classical connection between liberty and self-government.", now this is basically raising a question with respect to the constitutional definitions of liberty and role of Government, however again in this scenario we must understand that law making body is actually involved in imparting that right of nullification to the Jury and hence its should be accepted as a people driven concept.[ CITATION Abr94 \l 1033 ]
Moreover when he questions by saying “ Our current system, in which we tell jurors they must apply the law in every case no matter how unjust the results seem to them, opens the chasm between law and popular beliefs that the jury system exists to prevent.", he does not consider the fact that this is an exception based scenario and not every judgment will counter the application of traditional law, and lastly this is not a lawmaking process but a simple application of and exception based treatment as per the powers assigned to the jury by means of law.[ CITATION Abr94 \l 1033 ]
The controversies attached to Nullification
The reason behind so many debates and extensive research on this subject is related to the darker side which will be discussed in this section. Paul Butler, one of the public prosecutors gave his opinions on racially based jury nullification: black power in the criminal justice system. He clearly mentioned cases like the trial of Marion Barry, where the prosecutors volunteered to loose a case as the victim was an African-American and they believed that his prosecution was a racist attempt even though there were relevant evidences to prove this wrong. Now the above essay provides several such views related to the decisions made by and for African-Americans that suggest the threat of nullification power in terms of racial attempts. [ CITATION But95 \l 1033 ]
In a similar attempt to give evidences of racially biased decisions Charles J. Ogletree also gave numerous accounts of such instances in his book Black Man’s Burden: Race and the Death Penalty in America, the case studies in this book majorly involve the death sentences which have been given and the error rate related to it, from the perspective of African-Americans. He has highlighted some important factors related to decision making, like the selection of the jury and related discrimination while doing the same, moreover there is a very detailed discussion based on the lynching issues that existed in America and the legal decisions that have been made with respect to the issues that have creped up in the past. [ CITATION Ogl02 \l 1033 ]
There are examples like Wallace Vs Alabama and Missouri Vs Alexander, which clearly bring out the basic functional difference and discrimination in decision making and are well explained by Ogletree in his comments, however the important factor that we must understand that there are changes which are taking place in the social context will definitely improvise the situation as well and imposition of capital punishment is based on law once again and the presence of evidence during the prosecution is the major factors that relate to a decision which is taken, definitely there are instances like Furman Vs Georgia where capital punishment is under question since a long time however the possibility of error may not be related to racism only. [ CITATION Ogl02 \l 1033 ]
Notification to the Jury: As a possible solution and the best fit
After all the arguments that we have seen in the above discussions that have criticized the nullification power, however it will be interesting to discuss if the decisions will fall in the right bracket on implementing limitations and boundaries for the nullification scenarios. There may be a set of notifications that may define the possibility of nullification; however the reason behind putting those clauses is to ensure that the racial or emotional biases do not obstruct the capability of decision making. [ CITATION Ost01 \l 1033 ]
In order to find the validity of instruction based approach, experiment was conducted using hypothetical scenarios and individual respondents, similar case study was discussed and nullification was given as an option to three respondents, once with instructions and in other attempt without instructions. The results revealed that in both the cases the decisions made were the same and the reasoning provided was according to the instructions given, in this respect there are several views to suggest that with an introduction to the instructions and biased decision can also be defined well and may seriously tamper the entire process altogether. [ CITATION Ost01 \l 1033 ]Lastly, the best fit scenario may be very difficult to suggest as, there are arguments which suggest that nullification is again a secondary approach and therefore it is situation based, defining a line of fit may invite several opportunities to accommodate the same decision accordingly. [ CITATION Smi07 \l 1033 ]
Conclusion
With all the arguments and evidences from the various references coming from the seventeenth century till date, we can assess that there has been a continuous debate on the imposition of nullification, however if we look at the current scenario with respect to the law enforcement and protection standards, it will be easy to understand the argument that defines the role of a jury a body to protect and follow the law, as it is and with the nullification theory in effect it is virtually impossible to ascertain that there is any law which is unquestionably implemented, moreover there are several other factors like the biases and the emotional perspectives of decision making that come into play once nullifications takes effect.
Works Cited
Abramson, Jeffrey. WE, THE JURY. New York: Harper Collins Publishers, 1994.
Butler, Paul. "Racially Based Jury Nullification: Black Power in the Criminal Justice System." Yale Law Journal, Vol. 105 (1995).
Horowitz, Irwin A. JURY NULLIFICATION: AN EMPIRICAL PERSPECTIVE. Review. Illinios: NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, 2008.
Ogletree, Charles J. "Black Man's Burden: Race and the Death Penalty in America." Oregon Law Review 81 no1 June 2002: 15-39.
Ostrowski, James. "THE RISE AND FALL OF J." Journal of Libertarian Studies Volume 15, no. 2 (2001): 89-115.
Smith, Guy. Jury Nullification and the 2. Amendment. Chicago: Rights Restoration , 2007.
