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Jury Nullification: Acquitting Based On Principle


A new billboard in the nation's capital is stirring some controversy. It tells jury members to forget the law and vote their conscience. It reads - "Jury duty? Know your rights. Good jurors nullify bad laws." And it's caught the attention of prosecutors, not surprisingly. The group behind the ads is called the Fully Informed Jury Association. It says jurors should acquit defendants if they disagree with the law, even if all evidence points towards a guilty verdict.

We wanted to take a closer look to understand jury nullification, who it helps and how it could possibly hurt the justice system, and what people in the legal field think about it. We're joined now by our good friend Paul Butler. He's a professor at Georgetown Law School and former federal prosecutor. Also a regular guest in our Barbershop roundtables. He's here at our D.C. studios. Nice to see you.

PAUL BUTLER: Hey, Celeste. Great to be here.

HEADLEE: And also with us is Jeffrey Cramer. He's also a former federal prosecutor, now a managing director at Kroll Associates. That's a consulting firm. He joins us from his office in Chicago. Jeffrey, nice to talk to you.

JEFFREY CRAMER: Thanks for having me today.

HEADLEE: Let me begin with you, Paul, because you've talked about jury nullification before. Help us to understand exactly what that means, and how that works. Is it legal?

BUTLER: Yeah, so jury nullification is this constitutional power that jurors have to say not guilty, even if they think a defendant technically did it but the law is unfair or it's selectively applied - like our drug laws are. A lot of evidence now that African-Americans get prosecuted when whites don't. So for jurors, who have concerns about that, they don't have to find the person guilty. It's a power that the framers of the Constitution developed because they thought that regular people should have the last say when the government uses its awesome power to punish people.

It has a proud tradition, you know, slavery used to be legal. Jurors in the north, when slaves would be prosecuted for escaping or people who helped slaves escape were prosecuted- Northern jurors would say not guilty, even though technically those folks were guilty. More recently, here in D.C., up until the '90s it was a crime for gay people to have consensual sex. Sometimes folks got prosecuted for that. And I'm proud that I live in a city where D.C. jurors would say not guilty, even though those folks were technically guilty 'cause the law was unfair.

HEADLEE: But, Jeffrey, I imagine this bothers prosecutors because it can also be used, and has been used in the past, to let people who are guilty of bad things - murder and assault - go free.

CRAMER: It certainly - it does have a history of that. I think, you know, as Paul indicated, there are certain laws that aren't very safe. I think reasonable and rational people would say there's a problem with these laws and, therefore, using, you know, the conscience of the community argument to nullify the verdict. However, the flip-side, we've seen, certainly in the South, where white defendants accused of violent acts against minority defendants were set free under the same logic.

HEADLEE: Like the man who killed Emmett Till, for example.

CRAMER: Certainly. The conscience of the community there is much different than the conscience of the community in the north with some of the slavery examples. So, you know, as we try to institute this - or at least the billboards are put up trying to institute it - we need to be careful because while there are certainly exceptions that I think, again, reasonable people could say it makes sense as a way of running a judicial system, probably not the best way to go.

HEADLEE: And Paul, isn't it possible that juries could then extend this to other things they don't like like Stand Your Ground laws, etc.?

BUTLER: I wouldn't have advocated this idea of jury nullification but for my experience as a prosecutor, bringing these cases right here in D.C. and just developing so much respect for the people who show up for jury duty. They're ordinary women and men off the street and they have good common sense. So when I worked as a prosecutor, we all knew if we had some young guy who was charged with a nonviolent drug crime, these D.C. jurors were not going to send that boy to jail.

If it's murder, rape, theft - again, these are people with good sense. They know that those are the kind of folks who do need to be separated so that they can't hurt anybody. They were concerned - if you go to the D.C. Superior Court right now, you would think that white people don't commit crimes. You would think that they don't use drugs, they don't get into fights, they don't steal from their offices. So one way for people who know that's not an accurate reflection of the world to fight back is to use your power as jurors.

HEADLEE: So what do you think about that, Jeffrey? I mean, I don't think there could be any argument that the justice system right now - there is certain inherent bias, at least in sentencing. I mean, you can see that if you visit any prison. So is this one way to kind of shift that balance?

CRAMER: I think that's right, and drugs are certainly a good example to discuss this topic. Prior to being a federal prosecutor here in Chicago, I was at the Manhattan District Attorney's Office where we did certainly a fair amount of drug cases in the city of New York. And I think you're right, I think you do see that bias in the system. I don't know if it's on a conscious bias, but it's certainly a result-oriented bias. What I think the answer is what you just said, which is in the sentencing. So not the guilty or not guilty, jurors apply facts to the law and that's what they should do for the system to work. However, I think the solution lies in giving judges discretion.

We've seen the Department of Justice just recently change the mandatory minimums. Now that's going to affect D.C. where the Justice Department runs that system, but not the vast, vast majority of criminal defendants that go into the system nationwide. That's going to be on the local prosecutors. But I think the question of...

BUTLER: The problem with waiting, though, is right now millions of people's lives are being destroyed by this selective and racist war on drugs. So people get these convictions, they can't get jobs, they can't get loans, they can't live in federal housing. You know, it's devastating families and communities. So I agree with Jeffrey - that in the long-term, we need to work on sentencing reform and treatment not punishment, but in the short-term, we really got to save some of these lives from these awful conditions.

HEADLEE: Jeffrey, if not for jury nullification, how do we solve this problem more quickly? I mean, some of these reforms we're talking about are sort of institutional. I mean, it could take a very long time to reform the justice system to make it fair.

CRAMER: And that's a fair point. Some of it does take a long time. If judges are selected by state legislators, then you have to change the election process. And given that state legislators have an over 95 percent reelection rate, that is not something that is going to change tomorrow. But we can see - and again, we saw with the Department of Justice changing the mandatory minimums - that's something that can be impacted. I think judges instituting their discretion is something that can be done immediately where there's not mandatory minimums. I think the problem is - and we need to be careful not to just broadly say, you know, drugs are, you know, are nonviolent - as the billboards are being put up.

Here in Chicago, the gang problem is what's driving the murder rate here. And the gang problem is resulting from drugs. I mean, that's where the money comes from. So while legalization of drugs - there's something that will solve the problem, and that's, again, a discussion to have. But we need to be careful just to say that drugs are not a problem and therefore anyone that's brought up on drug charges immediately be found not guilty if he or she is a minority. That's not the solution.

HEADLEE: All right, that's Jeffrey Cramer, former federal prosecutor, now managing director at the consulting firm Kroll Associates out of Chicago. And also with us, another former federal prosecutor, Professor Paul Butler of Georgetown Law. He joined us right here in our Washington studios. Thank you both so much.

BUTLER: Always a pleasure, Celeste.

CRAMER: Thank you very much. Transcript provided by NPR, Copyright NPR.