Jury Nullification

Jury nullification is an important concept in the United States, and one that prosecutors really don’t like. It has the capacity to allow individual citizens to exercise independent judgment about the criminal law and the guilt or lack of guilt of any criminal defendant, which is why prosecutors really don’t like it.

We do not yet know, we may never know, if they knew about jury nullification and did this deliberately as an act because of it, but we can still call an act of de facto jury nullification the hung jury in the recent Arizona case of the man who rendered some form of aid—that he rendered aid to them is not in dispute, the argument is about the form of the aid and his intent in rendering it—to undocumented immigrants that he encountered in the desert.

It’s so hard to be a good conservative in the liberal United States. A close reading of the U.S. Constitution indicates that the Founders made the deliberate choice to accept some amount of unpunished criminal activity in the name of constraining the police. So the Fourth Amendment prohibits police from entering private dwellings and searching them without a warrant that a judge has signed. The Supreme Court has held that the police may not point a thermal imaging device at your house without a warrant because it constitutes a search.

Jury nullification is more of a Sixth Amendment issue. That Amendment reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

To some extent, this just reiterates the last paragraph of Article II, section 2 of the Constitution, which reads:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

It seems that the Founders really meant it.

The bit about having “Assistance of Counsel for his defence” is why states spend, depending on whom you ask, a grossly inadequate amount of money providing public defenders for criminal defendants who cannot afford to hire a private attorney. That is, the government pays to prosecute the defendant, and to defend him. Law and order costs money.

A “speedy and public trial” makes it hard for the government to railroad defendants or to trample their rights because the public can see what is going on. “[B]y an impartial jury of the State and district wherein the crime shall have been committed,” is where we really dig into jury nullification. Taking a step back from thinking about specific crimes, the point of criminal prosecution, very broadly, especially in a republic, is to enforce the moral norms of the community on persons who disregard them. So, we believe—effectively all of us, or the dissenters are too few to worry about—that killing other people is morally wrong, except when the government gives you permission to do so, as in war time. As a result, if you kill someone, usually, the police will try to track you down, and if they catch you, they will take you before a judge, where you should get the option to plead guilty or, as here, demand a trial (this is called “due process of law,” which the Fifth Amendment guarantees).

We are a nation. With a few vocal exceptions, we generally accept that our national legislature, Congress, has the authority to bind all of us through statutes. There are always important exceptions to these generalizations, but, as individuals, we mostly go along with the idea of paying federal income taxes to support the various benefits we get from the federal government. All of this has very much been a matter of debate in the United States, starting with the writing and ratification of the Constitution itself and very much continuing to the present day.

The Arizona case presents a particularly acute case of basic disagreement among citizens over the appropriate moral norms to apply and how to apply them. A “jury of the State and district wherein the shall have been committed.” This is a bit surprising in a document, the purpose of which was to tie together thirteen culturally and geographically disparate colonies. These days, the distance from Massachusetts to Georgia does not look all that great, but in the late 18th century, travel was difficult and uncertain. No railroads, hardly any roads at all. The easiest way to get from the south to the north or vice versa was by sea.

In 2019, the United States is several times larger than it was at the ratification of the Constitution in 1789. The Founders accepted that, even in the supposedly “United” States of America, moral norms could vary significantly from place to place and, in matters of criminal prosecution, they built into the Constitution some de facto permission for that variation to have some effect.

Very little of the United States borders Mexico. Of that portion, little of it is desert. Much of the desert part of the border with Mexico lies within the state of Arizona. One can make the very abstract argument that enforcement of borders is an essential part of being a nation state, and that is not wrong, but whether any individual undocumented immigrant—a person who comes here in hopes of staying indefinitely without getting official permission from our national government first—comes to the United States has very little, if any, direct impact on the vast majority of the three hundred million people who live here.

It seems obvious—the evidence is overwhelming—that the people of Arizona have strongly divergent beliefs about how best to deal with undocumented immigrants. The man who recently won a hung jury is one who believes that he has a moral obligation to try to help any human in need, including undocumented immigrants who have crossed the dangerous, forbidding desert to get to the United States.

Other residents of Arizona believe that enforcing the national border is more important than the health and wellbeing of individual undocumented immigrants.

The trial of the defendant in Arizona for providing unlawful aid to undocumented immigrants became a sort of test between these two positions. As it happens, among twelve people the court chose using some criterion that attempts to approximate randomness, but relies on voter rolls combined with information from the Department of Transportation, which skews hard towards people over the age of 18 and in various other ways, eight decided that helping an individual, no matter his legal status, is more important than enforcing the national border.

Of twelve jurors, eight decided that the man who aided undocumented immigrants in the desert did not break the law. Again, we do not know, we may never know, if the claim is that the prosecutors just failed to make their case, or if the jurors who voted not guilty agree with the defendant that providing help to humans in need is more important than enforcing the national border.

We could perhaps call these the weak and the strong jury nullification positions. The weak position is necessary and built into the system. The whole point of a trial is that we refuse to assume that the prosecutor is always right and that any accused is guilty, so we have a trial in which the prosecutor gets to put on their side of the story while the defense gets to put on their side and we let ordinary citizens, typically who lack legal training (prosecutors usually excuse lawyers from juries), make the decision about the guilt or lack of guilt of the defendant. Any time a jury finds a defendant not guilty, they are effectively nullifying the decision of the prosecutor to pursue the case.

The strong jury nullification position is the claim that, either on its face, or as applied in this case (lawyers routinely distinguish between a law that is bad on its face, one that will admit of no valid application at all, and laws that get badly applied in specific situations), the law at issue in the case before them is unjust or has some other fatal flaw, such that the juror refuses to find the defendant guilty. This is more of a systemic critique, effectively claiming that something is amiss in the criminal justice system, which is what led the juror to vote not guilty.

Apparently there is no movement afoot to take this position, but anyone who wanted to articulate a very strong critique of the systemic racism that infects every institution in the United States could argue that jurors should refuse to find any African American or Native American guilty of any crime on the grounds that it is impossible to apply the law in a just manner to them in the United States.

One interesting aspect of jury nullification is that it can operate entirely silently. Again, the jurors in the Arizona case may have chosen to nullify the statute in question, at least as applied, maybe on its face, but never tell anyone that their purpose was jury nullification. In no jurisdiction is jury nullification a crime, and it cannot be because the whole point of the jury system is that individual jurors have to be free to vote according to their conscience. Even if it were a crime, it would be impossible to prove because any juror could lie or refuse to answer questions about why they voted as they did. The Fifth Amendment guarantees that right.

Poor conservatives—they may not much like it, but our liberal Constitution promises to guarantee rights that have the effect of allowing at least some criminals to go unpunished because we choose not to live in a police state.

The possibility of jury nullification is one important component of this distinctively liberal system under our distinctively liberal Constitution.