Why Can’t We Nullify?
Jury Duty: A pain, a nuisance, an imposition on our everyday lives. When I typed in “Ways to get out of” into Google, the very first suggested search was Jury Duty…followed by debt, a lease, school, depression, and a speeding ticket. If Jury Duty is such a problem for citizens, why do we even utilize it? Couldn’t we use a panel of judges with their expert discretion? What is the point?
We need to realize: a jury of one’s peers is a powerful and important factor in the legal system. Jeffery Abramson in We The Jury explains this through his personal experience. He writes, “To me, as a young lawyer, the jury signified the rule of emotion over reason, prejudice over principle, whim over written law. With the passage of years, however, I have come to take a more positive position. After all, there would be little point to a jury system if we expected jurors always to decide cases exactly as judges would decide them” (p. 6). There is something about being heard by a jury of one’s peers that humanizes a case; however, it is important to acknowledge that this humanization does not mean irrationality. The jury isn’t expected to make decision identical to those of judges, because if it was, the jury would be completely purposeless. He continues, “The direct and raw character of the jury democracy makes it our most honest mirror, reflecting both the good and bad that ordinary people are capable of when called upon to do justice. The reflection sometimes attracts us, and it sometimes repeals it. But we are the jury, and the image we see is our own” (p. 250).
With this understood, why is it illegal for a juror or jury to nullify a case?
Furthermore, Paul Butler, a former prosecutor, explains In Defense of Jury Nullification that prosecutors, FBI agents, and police officers can use their discretion when choosing which cases to pursue. He writes, “I had the discretion to charge a person with a crime or to withhold charges even if I thought the individual was guilty. I elected not to prosecute people I thought were guilty all the time-that wasn’t nullification, it was ‘prosecutorial discretion.’ Before cases came to me, law enforcement officers, police and FBI agents-often decided not to arrest people they knew were guilty. Maybe a cop thought a dime bag of marijuana wasn’t worth saddling a kid with a criminal record. Maybe an FBI agent thought a charge against a popular official right before an election would be seen as political or be so divisive it would do more harm than good. None of these extrajudicial acts of excusing criminal conduct particularly upset most people. Ironically, it is only when 12 jurors do it, as opposed to one police officer or prosecutor, that a hue and cry ensues” (p. 46-47).
I am conflicted and confused: if juries are not allowed to use their discretion, then why do they exist? It seems to me that the greatest and most amazing thing about a jury is bringing the viewpoint of the public into the courtroom and not allowing the justice system to be overwhelmed by intellectual and wealthy legal scholars, lawyers, and judges. If jurors are not allowed to completely express their voices and nullify a case, then why do they exist?