Jury nullification in the context of capital cases usually refers to deviation during the sentencing phase from guidelines that indicate a convicted person is eligible for death. One or more jurors refuse to impose the death penalty regardless of eligibility.
When we talk about jury nullification in non-capital cases, we are usually referring to the jury’s power of delivering a verdict of Not Guilty during the trial phase. Jurors have this power in all criminal cases.
In historical cases from centuries past, capital crimes necessarily involved a penalty of death if the verdict was Guilty. There was no sentencing phase, nor an option to impose life without parole instead of death. Therefore, if juries in such cases conscientiously chose to spare the defendant from the death penalty, their only option was to deliver a Not Guilty verdict. This often happened in cases where they judged death too harsh a sentence for the crime committed, such as certain cases of treason.
Crimes punishable by death in today’s legal codes are extremely serious crimes, however, frequently described as “the worst of the worst” possible offenses that could be committed. Jurors in capital cases in the United States now have authority not only in the trial phase to determine guilt or innocence, but also in the sentencing phase to decide between a sentence of death or life without parole (LWOP).
Those who believe a defendant has committed such a crime are likely to support a Guilty verdicts in such a case. While there is little controversy over convicting a defendant who jurors believe has committed a heinous crime, however, there is significant disagreement over the appropriate penalty once a Guilty verdict has been delivered. Even though they are specifically screened during jury selection to prevent this, some jurors in the sentencing phase may decide that they cannot or will not impose a sentence of death, regardless of guidelines that might encourage them to do so.
In most cases, a single juror who will not approve a sentence of death can force a sentence of life without parole. However, in some states, either a supermajority or a simple majority of jurors voting for death is all that is required to impose a death sentence. Such non-unanimous sentencing schemes are highly controversial and
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