It’s often suggested that jury nullification “undermines” democracy. Let’s consider that for a second–for something to undermine democracy, what does that entail? If we take democracy at face value, then the “will of the majority” must actually be subverted. Surely it’s clear that the constitution does not prevent jury nullification, nor does any judicial interpretation (though the judicial branch has a history of espousing discouragement from time to time). And, regardless of the difficulty of doing so, citizens have the amendment process as a matter of recourse if they would seek to remedy this (not that aversion to jury nullification has any sort of popularity). To put it shortly, if jury nullification is permissible by means of a democratic institution, it can’t be subversive of that democratic institution.
Obviously if you pursue this line of thought–that jury nullification should be done away with–you can’t be operating from a position that jury nullification sits in contrast to democratic will. Nonetheless, if one were to pursue this point, you would be required to establish a method by which jurors can judged in relation to how “well” they have followed the law. Otherwise, how would you measure when jury nullification actually took place? And who might the arbitrator of this judgment be, the presiding judge? A secondary rules-jury of sorts? You quickly run into a problem of sororities paradox–if the buck doesn’t stop with the jury, where does it stop?
More tangible criticisms of jury nullification deal with whether or not any justice is actually done. While we can certainly look to the nullification of the fugitive slave act in the 1850s or prohibition in the 1920s by juries as instances of proper justice, you can easily point to times where jury nullification was not used in such a way–when it was used in the aftermath of the civil war by white juries in order to acquit white defendants who were accused of crimes against blacks. Instances of both “good” and “bad” uses of jury nullification are not limited to major points in history, of course, but as time goes on they become less about powder-keg issues and more about individual communities conceptualizations of justice (patterns of jury resistance to the drug war in recent years is more reminiscent of past issues).
In the piece by Paul Butler In the Defense of Jury Nullification, the attitude towards jury nullification is linked to jury appraisal:
“People’s views of nullification very much reflect their views of jurors in general. Nullification is like any other powerful tool: Depending upon whose hands it is in, it can be used for good or for evil. In a sense the debate about nullification is a litmus test of how much people trust jurors. If, as many practitioners do, you trust them a great deal, you are not likely to be worried about jurors nullifying inappropriately. If, on the other hand, you don’t put much faith in jurors to begin with, the prospect of nullification seems apocalyptic.”
This seems to be a fair appraisal of the resistance to jury nullification, and it seems to suggest an inherent inconsistency in this line of argument. The idea that jury nullification subverts democracy doesn’t sit copacetic with the idea that jurors can’t be trusted to do the “right thing.” For if you can’t trust jurors to do the right thing, particularly when they have little incentive not to (beyond nullifying laws they might find unjust), then how can you trust a democratic system which is ultimately comprised of the rest of the “potential jurors?” An invocation of “apocalyptic” results with regard to jury nullification would seem to necessarily be an incitement of democracy in general. This in and of itself is not a useless line of argument, but when you must seemingly throw out the court system in doing so, it seems silly to argue the merits of how such a system operates.