Jury Nullification

A short while ago, I received a summons for jury duty. Being a philosopher, I naturally set out to research the matter and one of the more interesting things I came across was the concept of jury nullification.

Jury nullification takes place when the members of a jury believe that the defendant is actually guilty of breaking the law yet a verdict of not guilty is rendered. This has the effect of nullifying the law. Generally, the term is applied when a jury acts on the basis of either a belief that the law itself is immoral or has been improperly applied to the defendant.

Perhaps the best known case of nullification occurred in 1735. John Peter Zenger was charged with libeling William Cosby, the governor of what was then the colony of New York. While Zenger had, in fact, printed the alleged libelous material, the jury elected to find him not guilty, thus nullifying the law.

The morally tumultuous 1800s saw numerous cases of jury nullification as many juries rendered verdicts of not guilty in defiance of the Alien and Sedition Act as well as the Fugitive Slave Laws. During prohibition, many juries did the same for people accused of violating the laws relating to alcohol. The practice has continued to this day, although to a lesser degree relative to the 1800s.

The legality of jury nullification has an interesting history and is nicely summarized by Doug Linder. While the legality of jury nullification is interesting, my main concern is the ethics of the matter.To limit the scope of the discussion, I will focus on the morality of nullification based on moral grounds.

On the face of it, a jury should follow the law. After all, to paraphrase Thomas Aquinas, laws are created with the expectation of obedience. However, Aquinas also argues that there is an objective moral basis by which to assess human laws and human laws that fail to measure up are not true laws, but perversions of law. Of course, other thinkers (such as Thomas Hobbes) reject this sort of view. This disagreement provides the basis for an interesting (and possibly false) dilemma.

On the face of it, law is either based on a moral foundation or it is not.  Now, if law has no moral foundation at all, then there would seem to be no basis to morally criticize a jury for nullifying a law. After all, they would have no moral obligation to follow the law.

However, if law has a moral foundation, then it would owe (at least some of) its authority to that moral foundation. This would seem to entail (with some suitable and lengthy argumentation) that any law that goes against that moral foundation would be an illegitimate law. This would clearly provide a moral basis for jury nullification. After all, if the jury has correctly discerned the law as being illegitimate (that is, it violates the moral foundation of law) then they would be in the right to refuse to apply it. Naturally, if they elected to apply it, then the folks on the jury would be acting in what would seem to be an immoral manner.

It might be objected that even if the law has a moral foundation, jury members are obligated to apply the law even if it is an immoral law. One might even point to Socrates‘ arguments in the Crito as to why a citizen owes obedience even when he disagrees with the law (although the citizen should try to persuade the state to change such laws).

While this objection does have a certain appeal, it can be countered by noting that the status of a person as a moral agent has a moral priority over her status as a citizen. This is to say that morality is more fundamental than the law. As such, a person has a primary obligation to do what is right and this can override other apparent obligations, such as the obligation to obey the law. In fact, if it is argued that a person is morally obligated to obey the law, the objection already assumes that morality is more fundamental than law. Otherwise, one would just say that the law commands obedience that overrides everything. This, of course, leads to the next objection.

Some thinkers hold exactly that: the law commands obedience. Some, such as the legalists, go even further and assert that what the law commands is good because it commands it and what it forbids is evil because it forbids it. On this view, citizens should obey the law because it is the law.

A reply to this is the intuitive view that there have been and are evil laws that should not be obeyed. That people should do what the state says because the state says so hardly seems to be a satisfying moral theory. Rather, it seems to be merely the dream of authoritarians and dictators.

A final objection worth considering is that a jury might be mistaken about the ethics of the law and hence they should simply follow the law out of fear of being wrong.

The easy and obvious reply to this is that if a jury can be trusted to make life and death decisions, surely they can be trusted to make such moral judgments. If juries cannot be trusted to make such tough moral decisions, then this would undercut the entire notion of trial by jury and thus render the whole concern about nullification moot. The objection does, however, present a reasonable concern. After all, juries should not lightly or frivolously apply nullification nor should they do so unless the folks on the jury have properly considered the ethics of the matter. In cases of immoral laws, jury nullification would seem to be more than morally acceptable-it would seem to be morally required.