In Defense of Nullification

We've talked some about William Stuntz' book The Collapse of American Criminal Justice. University of Pennsylvania law professor David Skeel was kind enough to do a couple short posts looking at two of Stuntz' more controversial proposals. The first is on jury nullification.

First of all, I want to thank you for inviting me to join your conversation about Bill Stuntz's new, posthumous book The Collapse of American Criminal Justice. As a friend of Bill's, I'm not completely objective. But I couldn't agree more that this is a hugely important book. One of the most remarkable attributes of The Collapse of American Criminal Justice is the counter intuitive solutions it offers to familiar problems.

My favorite example is jury nullification--the decision by a jury to acquit a criminal defendant even if the defendant appears to have committed the crime. Although jury nullification is highly unpopular in most circles, Stuntz argues it actually was once a great virtue of American criminal justice, and that it would be a natural part of a healthier criminal justice system--a system that didn't incarcerate blacks at highly disproportionate rates. Let me explain.

One of the key themes of The Collapse of American Criminal Justice is the decline of local democracy in American criminal justice. In the late nineteenth and early twentieth century, the police, prosecutors, juries, and criminal defendants usually came from the same neighborhoods, especially in America's cities. Criminal defendants were neighbors, and jurors balanced their sympathy for the defendants' plight with their concern that their neighborhoods be safe. Not only were trials (rather than plea bargains) much more common, so were acquittals.

In Chicago, Stuntz reports, defendants who killed someone in the midst of a bar fight or dispute over a card game nearly always argued that they had acted in self defense, and were rarely convicted. Although a variety of factors undermined this local democracy, one of the most important was white flight. In many cities, whites moved to the suburbs but, because they often remained in the same county as city residents, continued to vote for the city prosecutor and participate in jury pools. As a result, the citizens of the high crime urban neighborhoods from which many criminal defendants came had much less control over criminal justice than in the past.

When the legal scholar Paul Butler wrote an article defending jury nullification in the 1995, the article was condemned as race-based and extremist. Stuntz disagrees. He argues that it seemed extremist only because local democracy has disappeared from American criminal justice. Restoring local democracy, and inviting some jury nullification, wouldn't be race-based at all, yet Stuntz believed that it would help reduce the tremendous racial disparities in our prisons. I think he may be right.