Lots of libertarians support jury nullification -- the practice of a jury of acquitting a guilty party because it believes that the crime should not be a crime. For example, a jury supporting drug legalization might return a verdict of not guilty for a drug dealer whom they know is guilty because they think that drug trafficking should not be illegal.
Rationally, if a jury can behave this way, then it can also return a conviction for an innocent party because it concludes that that person should be locked away anyway. Now that would hardly be justice, would it?
Jury nullification has been used in the past, and not necessarily to good ends. How many all-white juries in the old South premised their verdicts for white and black defendants on skin color? Permitting juries to reason verdicts based on anything other than the letter of the law leads to such results.
So let's scrap the practice of jury nullification. When we want to change a law, we can follow the legislative process.
Of course, I say all of this aware that sometimes people are prosecuted for 'crimes' like sodomy and knowing that I would be completely unwilling to send a man to prison for such a charge, come hell or high water.
UPDATE: I'd especially appreciate the input of criminal attorneys like Quotidian Grace on this subject.
Friday, June 17, 2005
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2 comments:
Jury nullification is a rare event in practice these days, and here's why: during voir dire (questioning of the jury) prospective jurors are asked if they have a problem following the law in the case for any reason and if they do, they are excused by the judge.
For example, if you were on a jury panel in a criminal sodomy case you would be asked if you objected to the law under which the defendant is charged. If you say yes, you are excused. If you say no, but then during jury deliberations say that you cannot convict someone under this law and it should be changed, then you could be charged with perjury and a mistrial will be the result.
Prospective jurors are often excused from capital murder cases on the grounds that they have religious or moral objections to the death penalty.
Prosecutors are aware of trends in their areas and it does affect their willingness to prosecute certain types of cases. Eventually this can result in legislative changes.
Yes, again, there are so many possible exceptions. It would be a difficult and rather individual decision.
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