Jurors may wish to nullify for a number of reasons, including a belief that the law is unjust or unjustly applied, belief that the penalty for violating the law is too harsh, or belief that there are mitigating circumstances that would make strict enforcement of the law unjust in a particular case.
1. Perhaps the most common reason is a belief that the law is inherently unjust or that a generally just law is being misapplied in an unjust way.
Jury nullification educators often talk about “victimless” offenses, and advocate for the idea that if there is no victim, there is no crime. A victimless offense is one in which no other person’s rights are violated, but which has legally been defined as a crime anyway, often because it offends someone else’s sensibilities. Examples of such victimless crimes include:
● many marijuana and other drug offenses such as possession, use, or sale of these substances,
● voluntary trade of unlicensed or banned goods such as raw milk,
● peaceful possession of various weapons that run afoul of complex regulations and laws,
● expressive activities that are supposed to be Constitutionally-protected, but which have been eroded through bureaucratic regulation,
● gardening, building, installing alternative energy systems, collecting rainwater, or otherwise peacefully using one’s own property, but not in accordance with government regulations intended to engineer certain types of communities, etc.
Most people can fundamentally agree that people who are not harming anyone else should not themselves be harmed. This basic idea does not change simply because some busybodies who feel the need to control other people’s lives passed a law or wrote a regulation to force people to comply with their personal tastes and preferences. Many jurors either nullify in such cases or later regret failing to nullify, often having felt bullied into punishing someone who does not deserve it.
2. While victimless offenses are the obvious poster cases for jury nullification, we also sometimes see jurors nullify or wish to nullify because they believe the penalty for breaking a law is unjustly harsh for the offense committed.
When the United States was first formed, juries were very involved in sentencing. That power of juries has since eroded to the point that it is nearly unheard of in noncapital cases. Today, prosecutors and most judges go to great lengths to keep jurors in the dark about the potential sentence that may be imposed.
Judges routinely instruct jurors that they are not to consider the punishment in coming to a verdict of Guilty or Not Guilty. Yet most people understand that in any other aspect of our lives, what we are asked to do as jurors—to outright ignore the consequences of our actions before acting—would be anything from irresponsible to unconscionable.
Because they take their duties very seriously and will have to live with the knowledge of the consequences of their decisions, some jurors will nullify on some or all charges in order to ensure that the defendant is not punished unjustly harshly. With jurors removed from the sentencing process in nearly all noncapital, criminal cases, today’s jurors may use their Not Guilty vote to indirectly affect the punishment, either by declining to convict on some of the charges or by voting Not Guilty on all of the charges.
Two likely examples of this are a case in which a judge admirably informed jurors before they retired to deliberate that a Guilty verdict on a particular charge would result in a harsh mandatory minimum sentence and a jury’s conviction of a Texas teen on a simple assault charge instead of murder or manslaughter for the accidental death of a fellow student the teen said habitually bullied him even after being warned to stop.
On the flip side, we also regularly hear of cases in which jurors regretted their Guilty verdicts. Had they known what the penalty would be before they voted, many jurors say, they would not have convicted.
3. Jurors may believe that a law and the punishment for breaking it are generally just, but that in a particular case before them there are mitigating circumstances such that enforcing the law in this particular case would be unjust.
It is hard to describe such cases in general terms because they are necessarily exceptions to the rule. However, an example may illustrate the point.
In 2013, a jury acquitted a California man who punched a priest, even though the defendant admitted guilt on the stand. Normally, jurors tend to convict when a defendant admits being guilty of an offense with an actual victim. In this case, however, additional circumstances cast the offense in a different light.
The defendant in the case explained in the court that he had been a victim of molestation as a child by the priest he had punched. He said he had sought the priest out with the intention of getting him to sign a confession of what he had done, but that things became heated when he felt that the priest was leering at him again they way he had done to him as a child. The defendant testified that the long-term repercussions of the sexual abuse he had suffered included alcoholism, divorce, and two suicide attempts. He also openly expressed his regret for his actions to the jury.
Because of the unusual circumstances, the jury declined to convict him of felony assault and elder abuse and deadlocked 8-4 on misdemeanor assault:
Jurors told the San Francisco Chronicle that none of the members wanted to convict Lynch after hearing his testimony about the alleged abuse at the hands of Jerold Lindner. The jurors asked to remain anonymous.
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