Paul Butler has a proposal for jurors who are fed up with racial disparities in the criminal justice system: Don't always follow the letter of the law.
Butler, a Georgetown Law professor, doesn't mean that jurors should do anything illegal. Instead, he wants jurors to tap into "jury nullification."
"Jury nullification is the power that jurors have to find a defendant not guilty even if they think that he committed the crime," Butler told me. "It's a power that comes from the Bill of Rights, which says that a person cannot be tried for the same crime twice."
Jurors already use jury nullification when they think the enforcement of a law in an individual case would be unfair or too harsh. But in an April Washington Post op-ed, Butler argued that jurors could use this power in a systematic way to fight against racial disparities in the criminal justice system. This isn't a new rallying cry for Butler, who has studied jury nullification and emphasized its potential benefits since he stepped down as a prosecutor in Washington, DC, two decades ago.
Still, it's a timely idea, given the rise of the Black Lives Matter movement. So I called up Butler to talk about it. What follows is our conversation, edited for length and clarity.
Jury nullification has a history of helping stop unfair laws
German Lopez: Why is it important for jurors to use jury nullification?
Paul Butler: Nullification only works one way: in favor of acquittals. If someone is convicted and there is no evidence to support the conviction, then a judge can overturn the conviction. But if someone is found not guilty, there's nothing that a judge can do even if the judge doesn't agree with the verdict.
Jury nullification is a proud part of our constitutional history.
There are famous cases, including the [John Peter] Zenger case, in which American patriots were charged with sedition against the British crown, and jurors nullified in those cases because they thought that the law was unfair. Likewise, in cases involving fugitive slaves: When people were prosecuted for trying to help a slave escape, those folks were prosecuted. And in the North, the jurors would nullify.
More recently, in places like the District of Columbia, where 30 years ago consensual gay sex was a crime called sodomy, when people prosecuted for that quote-unquote crime, jurors rightly thought that was a silly law. So even if the defendant was guilty, the jurors would say not guilty.
Jury nullification could be used to combat modern racial biases
GL: In your Washington Post op-ed, you focus on the racial justice angle. How has jury nullification been used for that?
PB: I learned about jury nullification when I was a rookie prosecutor in the District of Columbia, doing drug cases. This was in the 1990s, when there were jury trials for even drug possession offenses.
And I was warned by the experienced prosecutors that there would be cases involving nonviolent drug offenses in which no matter what my evidence was or no matter how good my trial skills were, the jury would acquit. And the reason they would is because they didn't want to send another young black man to jail or prison. This was at a time when most of the jurors in the District of Columbia were African American.
When I started trying cases, that was exactly what happened. I knew the defendant was guilty, and the jurors would have to know it, too. But in nonviolent drug cases, they would frequently find the defendant not guilty.
So when I left the prosecutor's office and became a professor, [jury nullification] was the first thing I wanted to research. That's when I learned that what the jurors were doing was not only legal, that it had been a powerful instrument of change, including changes in racial issues.
"[Jury nullification] was not only legal, that it had been a powerful instrument of change, including changes in racial issues"
In this article that was published in the Yale Law Journal, I wanted to recommend ways that jurors could make this practice more strategic so that it might have more political impact. Jurors often are following their own conscience and their sense of morality, as well as doing cost-benefit analysis — they ask themselves whether their community would be better off with this young, nonviolent offender in prison or returned to the community.
Again, they made all of these decisions as personal. They didn't know necessarily that this power to nullify might be employed in a more strategic way. So in the Washington Post article, as well as other writings I've done in the 20 years since I wrote that first jury nullification article [in the Yale Law Journal], I recommended that jurors might use this power to send a message to lawmakers and police and prosecutors that business as usual, when it comes to the way our communities are over-policed and prosecuted, is no longer acceptable.
When we see [jury nullification] in communities with large populations of people of color — so I'm thinking of the District of Columbia, Baltimore, the Bronx, and Oakland, California — prosecutors in those places have to be much more careful about the cases that they bring. Because if it's a low-level drug case, and the jurors are much less likely to convict, I think that leads to prosecutors bringing fewer of those cases.
In the Post article, I wanted to update the theory for the Black Lives Matter movement and to think about the concerns of police, especially the ways that they are excessively violent or disproportionately violent in communities of color. And to let jurors know that if they have concerns about the ways that police are acting in those cases, that a way to signal those concerns is by nullification.
I don't think that outside of nonviolent crimes, nullification is typically something that jurors consider, because jurors have good sense. So if they think it's someone likely to cause serious physical harm, then they're better off with that person not being on the street. But if it's a nonviolent offender, and it's a case in which people are selectively prosecuted, with drug crimes being the prime example of that, then I think jurors should consider nullification.
GL: So why should jurors use nullification to combat racial bias?
PB: If you go to criminal court in Washington, DC, today, right now, you would think that white people do not commit crimes. About 95 percent of the people who are sent for crimes in that court are African Americans, even though African Americans are only about 50 percent of the population of the District. And that's true in cities all over the country with African Americans and Latinos basically being the subjects of crime and punishment.
That doesn't mean white people don't commit crimes. It just means that they don't get the same attention, and their criminal conduct does not get the same attention as people of color.
Sometimes people ask what would happen to the African-American community if it wasn't policed and prosecuted the way that it is now. And the answer to that is to look at the white community. It's not like white folks don't commit crimes; it's just that when they do, they don't receive the same attention, and I think the white community is doing doing okay with its minimal levels of policing and prosecuting. And I think that would also be true of communities of color.
Jurors could start thinking about using nullification in a systemic way to combat racism
GL: You mentioned jurors should be much more strategic. What is some of the specific advice you would give jurors so they are more strategic?
PB: One sense is that when jurors nullify, they think of it as subversive. Sometimes the story they tell themselves is, "I have this power. And I had to use it in a way that was consistent with my sense of morality and ethics in order to do the right thing, no matter what the judge says."
But they view the practice in a way that it has to be secret, because they don't know it's a power that they have as a juror. And so often they don't talk about it, even with other jurors. In my experience, when they discuss the case with jurors when they're deliberating, they sometimes would pretend that they had reasonable doubt. So they would say, "Oh, I just didn't believe that police officer," even though they really thought the guy was guilty.
So one suggestion would be that they could be more transparent about when they nullify, because that gets the word out.
"[Jurors] could be more transparent about when they nullify, because that gets the word out"
As I see in nullification in this cases, it has two purposes. One is self-help — the jurors in DC are right, and there are too many young black and Latino people in prison. And nullification is a very limited way of keeping some people out of prison when prison is not in the best interest of the community. But a more powerful effect it has is to send a message to lawmakers, police, and prosecutors — and that message is more effective when it's open, when jurors aren't being down-low about what they're doing, and when they're open about it.
There are various organizations that have thought about ways to make the practice more transparent. So people are going online, writing blogs, writing op-eds, talking about what they did.
There's some jurisdictions now — only a few, New Hampshire is one — where jurors can actually be instructed on their power to nullify, so the defendant can ask that the jury be told, "If you think the person is guilty, you don't have to convict if you think that the law itself is unfair or unfairly applied in this case."
That's not true nationally. The Supreme Court has this weird set of cases, in which it acknowledges that jury nullification is a power that any juror has, and there's nothing that a judge can do to the defendant when he's been found not guilty, but in another case it found that jurors don't have to be told about this power.
So in most states, if a defendant wants the jury to know about nullification, he has no right to have the jury instructed about it. There's some people who are working to change those laws — to get more laws like what's true in New Hampshire now.
GL: To be clear, if jurors openly admit it, they can't get in trouble?
PB: Well, there the law is unsettled. In most jurisdictions, if a juror is not considering the evidence and that's brought to the attention to the judge during the deliberations, then the juror could be excused for not considering the evidence.
But I would submit that when jurors nullify, they very much consider the evidence — that's part of the calculus about whether they should find the defendant guilty or not guilty.
In DC, for example, you rarely saw nullification in cases of violent crime. That doesn't mean there weren't not guilty verdicts in those cases, but it's just that those verdicts were based on reasonable doubt.
But let's say it's a nonviolent drug case. The jurors are going to be considering things like, if it's a seller on trial, who were the people who were buying the drugs. So if the seller was supplying the drug to minors, that's something the jurors would consider in deciding not to nullify.
So all that is to say that if the law is that if a juror is not considering the evidence, she can be removed from the jury during the course of the trial, I don't think that that is true of jurors who nullify. They do consider the evidence.
But as a practical matter, there are very few cases in which this actually happens. And there's never been any juror who's been punished for nullifying; there's been a couple of cases in which prosecutors have tried, but those cases have been thrown out.
Jury nullification is part of democracy's application in the courtroom
GL: I'm sure some people reading this would find it to be a terrifying idea, because they might think that the law is the law, and it should be respected. How would you respond to that?
PB: What the framers of the Constitution recognized when they included the right to trial by jury and the power of jurors to judge the law as well as the facts — which was very much a part of why they thought our jury trials were so important — they wanted … ordinary citizens to have the final say about how the state uses its awesome power to police and prosecute and punish.
What they recognized, what jury nullification recognizes, is that the law is not made by God. The law is made by people like Ted Cruz and Hillary Clinton, when she was a senator, and the Republicans and Democrats on the DC City Council or the US Congress.
Those people are capable of being wrong. And when they are wrong, or even when the law is fair but enforced by people who aren't fair, like the racist sheriff in Arizona [Joe Arpaio], there needs to be a correction. The people need to have the final say. And that was very much at the forefront in the thoughts of the drafters of the Constitution.
So it's not a particularly radical idea. It's really just a version of our democracy. It's how democracy works in the context of a criminal case: It's the 12 people in the jury who have the final say, not the prosecutor and not the judge.