海角大神

The more questions the potential jurors are asked, the more questions they seem to have.

They are being considered for a trial involving arson and felony vandalism charges, and they have already been here several hours. A howling winter wind is audible through the drawn curtains of a fifth-floor courtroom in the Mendocino County Superior Court, punctuating questions from the defense attorney and the prosecutor.

鈥淭he judge does the sentencing?鈥� a potential juror asks. The prosecutor says yes.

鈥淚t seems kind of,鈥� the juror falters. 鈥淭he severity of the sentence would matter to me. Thirty years in prison for lighting a dumpster fire 鈥� that part of it seems ridiculous.鈥�

Another potential juror speaks up. Is it the prosecutor鈥檚 job to show why they鈥檙e prosecuting this particular crime, he asks, beyond the fact it was unlawful behavior?

鈥淓veryone has opinions on what laws are important and what are not,鈥� the prosecutor begins, before Judge John Behnke interrupts. They鈥檙e on a line of questioning that may not have an endpoint, he says, and the lunch hour is approaching.

鈥淭he jury determines the facts and applies them to the law, and in the event of a conviction it鈥檚 the judge that pronounces the sentence鈥� he adds. The possible sentence 鈥渟houldn鈥檛 affect your deliberations. It鈥檚 just one of the [ways] responsibilities break down in our system.鈥�

It wasn鈥檛 always that way. For centuries it was accepted that juries had two duties: judging facts (deciding whether to convict or acquit), and judging law (deciding whether it should be enforced). 鈥淛ury nullification,鈥� as it鈥檚 known, empowers jurors to acquit defendants who are factually guilty if the jurors feel the law or sentence at issue is unjust.

鈥淚t is a power of the jury that the jury has always had.... And as long as we have jury trials it probably always will exist,鈥� says Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts.

Most Americans no longer know that, however, so what has been debated for years is 鈥渢hat nitty-gritty of under what circumstances should jurors be expressly educated about this power that they have,鈥� she adds.

Celebrity to anonymity

Jury nullification has now all but disappeared from the United States criminal justice system, partly because jury trials have all but disappeared. More than 90 percent of cases today result in plea bargains. In the cases that do go to trial, juries are given instructions similar to those given by Behnke.

Advocates for jury nullification often cite its English Common Law history. In 1670, a William Penn and William Meade after the men had been arrested for preaching to a group of Quakers. In 1735, lawyer Andrew Hamilton convinced a New York jury to acquit newspaper printer John Peter Zenger of seditious libel charges for publishing criticisms of the province鈥檚 governor.

鈥淚t is not the cause of one poor printer,鈥� Mr. Hamilton . 鈥淚t is the best cause. It is the cause of liberty.鈥� After the acquittal, Hamilton was given 鈥渇reedom of the city鈥� status, and left to a salute of cannons.

Critics of jury nullification also have striking examples they can call upon, particularly all-white juries acquitting white men of lynching charges during Reconstruction and Jim Crow in the South. An all-white, all-male jury in Sumner, Miss., of murdering 14-year-old Emmett Till despite compelling testimony from two witnesses. (Months later, the men confessed to killing him.)

Even putting aside the high-profile examples, critics say there are reasons why reviving jury nullification would be a bad idea 鈥� not least the fear that vigilante jurors would start ignoring the rule of law.

鈥淲e wouldn鈥檛 have jury trials at all if the public thought they鈥檇 be free to do whatever they wanted,鈥� says Stephen Susman, executive director of the Civil Jury Project at the New York University School of Law. 鈥淚 can鈥檛 say it changed for the worse.鈥�

Jurors have much less information than judges and prosecutors, including a defendant鈥檚 criminal record 鈥� withheld so they don鈥檛 presume guilt of the charge, or charges, at issue 鈥� and inadmissible parts of the record in the case. They are also less democratically accountable than elected prosecutors and legislators who write laws.

Historically, expertise has also shifted from juries to judges and prosecutors. Until the late 19th century, there were to become a judge or prosecutor, so there was 鈥渘o guarantee that the judge or magistrate overseeing your trial was any more well-educated about the law than the jurors,鈥� Ms. Hannaford-Agor says.

While the criminal justice system has become more professionalized, many believe it has also become more unjust. If juries were explicitly told about their nullification power, its supporters believe the potential positives would outweigh the potential negatives.

鈥淭here鈥檚 no doubt the founders decided to put citizen participation at the heart of the criminal justice system. In some ways we鈥檝e taken that heart, that citizen involvement in criminal justice, and ripped it out,鈥� says Clark Neily, a vice president at the libertarian Cato Institute, which advocates for jury nullification. 鈥淚t would jam a stick into this exceptionally efficient conviction machine the American criminal justice system has morphed into.鈥�

Doubts about status quo

Nullification bubbles up every now and then, usually at the behest of libertarians 鈥� legislators in New Hampshire have been trying 聽鈥� but the status quo has quietly prevailed for centuries.

鈥淭he system isn鈥檛 supposed to be efficient. We鈥檙e not supposed to be convicting people left and right,鈥� says Kirsten Tynan, executive director of the Fully Informed Jury Association (FIJA). Ms. Tynan, a former missile systems engineer who fell into the jury nullification debate after leaving her job and moving to Montana, is FIJA鈥檚 only full-time staff person. 鈥淧eople don鈥檛 want murderers on the street.... 聽But they also know not every offense should completely take up your adult years and cost taxpayers all that money.鈥�

In 1794 the US Supreme Court held the only jury trial in its history. Chief Justice John Jay 聽that both judging the facts and judging the law were 鈥渨ithin the power of your decision.鈥� A century later, 5 to 4 that a trial judge didn鈥檛 have to inform a jury of its nullification right. It hasn鈥檛 directly considered jury nullification since, and lower courts have regularly upheld this precedent.

Some justices have voiced doubts in recent years, however. Justice Sandra Day O鈥機onnor that jurors don鈥檛 get enough information, and three years ago Justice Sonia Sotomayor said that 鈥渢here is a place for jury nullification鈥� in the justice system.

Because juror deliberations are private, and rarely discussed afterward, it鈥檚 unclear how much nullification may be happening even without juries being instructed.

鈥淢y impression talking with judges around the country,鈥� says Hannaford-Agor, is that 鈥渨hen an acquittal really is the most just result, the jurors will actually get there most of the time 鈥� and when you don鈥檛, you get an appeals process.鈥�