In 1986, Leroy Reed faced criminal charges he didn’t understand. A mentally disabled ex-convict from Milwaukee, Reed was charged with illegally possessing a firearm after his parole office discovered that he had purchased a .22-caliber pistol to go with a mail-order private detective course. While it was obvious to everyone on the jury that he had committed a crime, it was less obvious that he should go back to prison for it. Did he know that what he was doing was wrong? Would a harsh sentence, such as reincarceration, be just?
After hours of dramatic argument captured on film by PBS’ “Frontline,” the jury decided to find Reed not guilty. These citizens were practicing “jury nullification,” a contentious aspect of our legal system whereby jurors can decide to ignore the law and not convict a person obviously guilty of a crime. Acting as a sort of community conscience, juries can decide that applying the letter of the law to a particular case would not be justified — but it’s not clear how much say a jury should have in deciding which laws to enforce.
Verdicts that ignore broken laws, such as the decision in the Reed case, are permissible under the Constitution. The Supreme Court affirmed the power of the jury in the 1895 case Sparf v. United States , arguing that a jury’s verdict cannot be questioned by any court due to the “double jeopardy” clause. Still, courts and prosecutors have long been skeptical of jury nullification. Many see it as taking away the power of sentencing discretion from judges, with whom it belongs.
Opponents of jury nullification argue that the power of juries to disregard the law is undemocratic. Laws are developed by elected representatives, they argue, not a handful of citizens gathered privately in a room. For that reason, defense attorneys are often prohibited by judges from telling jurors to make a decision contrary to the law.
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But for proponents of jury powers, nullification is a right afforded to jurors that performs as a check against unjust laws. Although opponents argue that jurors have used nullification irresponsibly , they have also used the power to protect people who violated the unjust Alien and Sedition Act, the Fugitive Slave Act and prohibition laws. Advocates of nullification say that jurors should not only be able to ignore the laws when determining the verdict, but that courts should be required to inform them of their right to do so.
A bill working its way through the New Hampshire legislature that would enact just that — a second attempt at doing so. In 2012, the legislature passed a law that would allow the defense to inform juries of their right to nullify a law, but the state Supreme Court gutted it, arguing that nullification wasn’t a right. The new legislation goes further than the last, requiring the court itself to make clear a jury’s right to nullify a law at the defense attorney’s request.
There are some bedrock legal concepts at stake in this conflict, and that elicits a debate: How much of a say should juries have in determining the delivery of our criminal laws? Is jury nullification subject to particular biases, and if so, does this make it more or less useful in its role as a check on unfair laws? How would it affect our legal system if more states or the U.S. Supreme Court eventually weighed in to protect jury nullification?
Robert Gebelhoff contributes to The Washington Post’s Opinions section.