4096px-SQ_Lethal_Injection_RoomIn eras past, when capital cases automatically resulted in death, jurors sometimes nullified the law with their Not Guilty vote when they believed that death was too harsh a punishment. Modern capital juries in the United States have both the power to convict or acquit and, separately, the power to sentence a defendant either to death or life without parole. When jury nullification happens in modern capital cases, it usually is in the form a sentencing phase deviation from the sentencing guidelines, with the jury issuing a sentence of life without parole instead of death.

Historical examples of jury nullification in death penalty cases include:
1. John Lilburne
John Lilburne was an English political Leveller before, during and after the English Civil Wars 1642–1650. In 1653 he was tried for treason and in once again argued for jury nullification as he previously had in 1649. This was a capital offense, for which the only penalty if he were found Guilty would be death, and jurors well understood this. There was no separate sentencing phase as in today’s modern capital trials.

Lilburne urged his jurors to acquit him if they believed the death penalty “unconscionably severe” with respect to the severity of the offense of which he was accused. His jurors returned their verdict as “Not guilty of any crime worthy of death”.

2. Philadelphia Treason Trials
Professor Carlton F. W. Larson analyzed a series of trials in America during the American Revolution known as the Philadelphia Treason Trials. 23 men were tried in Philadelphia in 1778-1779 for high treason—a crime which was punished by death. Despite widespread hostility to opponents of the revolution, and the likelihood that many of these defendants were technically guilty, only four of the defendants were convicted and jurors petitioned for clemency in three of those four cases. Upon examining the defense strategies used, the demographics of the jurors selected, and the social connections among those involved, Professor Larson argues:

These treason cases thus severely tested the law’s traditional assumption that treason was the highest crime, worse even than murder. The jurors simply refused to believe that the allegations of aiding the British rose to the level of murder, or even of burglary. The lack of any intermediate measure between outright acquittal and conviction for a capital crime forced jurors either to effectively nullify Pennsylvania’s treason laws or to expose large numbers of individuals to the possibility of execution. For many jurors (and grand jurors as well), individuals who made the wrong choice of allegiance in a convulsive civil war were not incorrigible criminals, but friends and neighbors who had a high possibility of redemption. Hanging them in large numbers would have done little to encourage loyalty to Pennsylvania’s fledgling government or to advance the overall war effort.

Reference: Larson, Carlton F. W., The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials (March 18, 2008). Southern Methodist University Law Review, Vol. 61, No. 4, Fall 2008; UC Davis Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=1108443

Modern examples of jury nullification in death penalty cases are hard to pinpoint as jurors often do not discuss the case afterward or do not all describe the reasons for the decision similarly. However, a possible example from 2015 is the case of Joseph McEnroe, convicted in King County, Washington for killing six members of his ex-girlfriend’s family. In the sentencing phase of the McEnroe trial, jurors ended up split 8 in favor of the death penalty and 4 for life without parole. Because a unanimous verdict in favor of death could not be reached, McEnroe was sentenced to life without parole.

In this case, jury foreman Angela Morello-Williams, who sided with the majority to impose death, explicitly labeled the life without parole sentence a case of jury nullification. Some of the jurors reported that three of the four dissenters refused to deliberate during the sentencing phase at all. An unsigned editorial by The Seattle Times labeled this a case of jury nullification, saying that it should send a strong message to the prosecutor to stop seeking the death penalty in a county where only about one in four residents support the death penalty.

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