Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jury Nullification | 22 Apr 2014

-Prosecutor Nullification vs. Jury Nullification


Fence_of_Prison-BPOWhen the topic of jury nullification comes up in the public discourse, it is not too long before the alarmist cry of “But it will lead to anarchy, chaos, lawlessness!” is raised. Such was the case, for example, in an editorial ominously titled “The Dangers of Jury Nullification” published earlier this year by The Chicago Tribune, stating that “The promotion of jury nullification rests on the assumption that 12 randomly chosen individuals are entitled to override the democratically expressed will of the citizenry.”

But let’s consider a FAR more common form of nullification which raises hardly an eyebrow: prosecutor nullification, more commonly known as “plea bargaining”. With a plea bargain, the prosecutor unilaterally nullifies the law by agreeing to drop or not to add charges against a defendant, even though the prosecutor supposedly believes the defendant broke those laws and can be convicted in court. Rather than being a work of compassion and justice, prosecutor nullification is most typically used as a battering ram with which to bludgeon defendants into foregoing their right to trial by jury. United States District Judge Jed Rakoff explains in the following article.

Why innocent people plead guilty

Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

Looking at the numbers, it is clear that the VAST MAJORITY of cases are settled, not by 12 independent individuals chosen to represent the conscience of the community, but by a single, politically- and financially-motivated individual whose reputation, career prospects, and compensation depend on securing conviction after conviction after conviction. This has lead to an egregiously unjust legal system, even though there hasn’t necessarily been any rule broken. According to Judge Rackoff:

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

This does not even include the tends of thousands of peaceful people who may have technically broken the law, but did not commit any act that could properly be considered a crime, as they did not harm another person or damage someone else’s property. The next time someone speaks up against jury nullification, you might inquire into their position on the FAR MORE COMMON use of prosecutor nullification.