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"Nullification is almost never appropriate for a marijuana case. Even though I think marijuana should be legal, and I know all about nullification, I would never use it there at this time, simply because the system has NOT broken down in this area. Want to stop people from getting convicted of marijuana crimes? Then elect legislators who will decriminalize marijuana."

I'd point to this portion of the article: "Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. "

In this context it's part of the awareness and reform process. Again, from the article: "In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors 'can ignore the law' if the law 'is producing a terrible result.' "

This is a peaceful and legal way of stating "This law is bunk, we won't help you enforce it."

Nullification is balanced around the hung jury process. http://en.wikipedia.org/wiki/Hung_jury If a jury can't decide in some time frame the judge can decide to end the trial without a verdict and enable a new trial to occur. Your constitutional protection vs multiple tryals only occurs after a jury has said not guilty it does not apply when a jury can't decide on a verdict.

PS: In the US In the United States, the result is a mistrial, and the case may be retried. Some jurisdictions permit the court to give the jury a so-called Allen charge, inviting the dissenting jurors to re-examine their opinions, as a last ditch effort to prevent the jury from hanging. The Federal Rules of Criminal Procedure state, "The verdict must be unanimous...If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed...If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed...If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree."[7]

I strongly disagree. Every juror should understand that they have a responsibility to consider the law, not just the facts. In most trials, that consideration will amount to "Yup, the law seems fine", with no further thought required. However, I believe that consideration ought to happen in every single trial, with every single juror. No reasonable doubt should exist that the law remains just and appropriate.

If that means we get a few more "not guilty" verdicts than we should, so be it. We make the same tradeoff with "innocent until proven guilty" and "beyond a reasonable doubt": better to let guilty people free than convict innocent people. The difference: we need "beyond a reasonable doubt" applied to laws, not just to people.

Where does it stop?

Say someone is on trial for tax evasion, because they paid only 20% rather than the 30% they owe under the law. Is it OK for a juror to say "gee, taxes should only be 20% anyway, so I'm going to let him off the hook"?

Yes, if jurors feel that way about tax laws - then yes - acquit the defendant and possibly start changing tax law.

But then you're bringing opinion into the law. If the jurors on one trial think that 30% isn't fair, but jurors on another trial think that it is fair, you haven't got a fair system anymore. Isn't the law based on justice and fairness?

And this doesn't only apply to tax laws. There could be a difference of opinion on other cases too.

While the law nullification idea is a good idea in theory, it starts to break down in practice.

The whole idea of having jurors is to bring opinion of peers into making judgement about the case.

Of course it's better to make a system that would be consistently fair (e.g. keep taxes at the level vast majority of society supports it). But if two available options are "not fair" and "not always fair" - I'd pick "not always fair".

The supreme court has in past found that punishments which are capriciously applied are inherently cruel and unusual (Furman v. Georgia).

On a one-off basis, this doesn't represent any significant change to the system. People won't start evading taxes on the theory that they can argue for jury nullification, because they won't consistently get away with it.

On the other hand, with a tax rate of 90% (to use an extreme example), juries might start consistently acquitting people for not paying their taxes, and that sends a message.

In any case, I don't want to see any measures taken to stop the scenario you describe. It'll work out just fine on its own.

We already have a system to make sure laws remain appropriate: it is called an elected legislature.

They system you are suggesting would in effect turn every trial into a little election on what the law should be, but with only a small fraction of the electorate voting, and the results only applying to that one case.

Indeed, selective application of the law is a tyranny in itself, and the public gets awfully bent out of shape when police officers try it.

Checks and balances considered useful. I always want the option to exist, even though people won't need it in most cases.

And also, every case adds to the case history; it doesn't take many cases to create a pattern. So no, the results don't only apply to that one case. And even if they do, a single instance of well-applied nullification might not mean much to the general public, but it means the world to the defendant.

>> We already have a system to make sure laws remain appropriate: it is called an elected legislature.

The legislature does no such thing. Theoretically, representatives do their job by pandering to constituent majorities.

http://en.wikipedia.org/wiki/Tyranny_of_the_majority

You make excellent points.

But the counterargument is that the point of having a jury is to protect people from the power of the government. If we want to say that a jury is there solely to evaluate the evidence, then I suspect that a judge sitting without a jury will likely do a better job.

But if the point is protect from the power of the government and avoid the risk of a corrupt judge, then nullficiation must be an available tool, and like any other tool it is only useful when it is known to exist.

Perhaps the answer to your concern about balancing is more education rather than less. Perhaps juries (at least in cases where one side requests it) should be informed both that nullfication is an option, and also that, as you said, it should only be applied when "not only would there be an injustice in applying the law to the case at hand, but that there has been a breakdown of the system".

Jury nullification has to do with returning a "Not Guilty" verdict in the face of evidence that would suggest otherwise.

What you are talking about it a "hung jury" where the 5% person is able to prevent a unanimous "Guilty" verdict. Depending on the state, the requirement for conviction may be unanimity or something less (11 to 1, 10 to 2, I don't remember if it goes any less). In this cases, the prosecutors may choose to retry the defendant - if you think about it, if the prosecutors decided to try him once, why not twice? The odds are the same the second time around (i.e. the odds of not getting the 5% person on the jury).

Regarding "bogus convictions", the jury only gets to make its decision when a high enough evidentiary threshold is met. Otherwise, the judge must throw the case out for not meeting minimum requirements.

Think of it like this (note that this is my own approximate guesses taken from my law school class on Criminal Law) - "Reasonable doubt" may be a 95% confidence threshold for the jury to convict. For the decision to get to the jury, the judge has to decide that the evidence is at least 75% confidence level in his opinion. Its only 75% for the judge because he is not the finder of fact and the jury can reasonably decide that what the judge views as 75% certainty of guilt is actually 95% in their view.

So to sum up, the situation is not as dire as you would suggest. I agree that jury nullification can be a big problem in the wrong situations (racist communities, etc) and that is why the law tries to minimize its impact (e.g. defense attorneys cannot mention jury nullification to a jury during the trial) while preserving defendants' rights to a jury of peers.

Like seemingly every aspect of law, there isn't a clear cut answer either way.

"In this cases, the prosecutors may choose to retry the defendant - if you think about it, if the prosecutors decided to try him once, why not twice?"

Prosecuting a defendant is an expensive process. It's not free. And even though one hung jury won't save the defendant, if juries start hanging two or three times every time a crime is prosecuted, the state is going to have to start rethinking its stance on prosecuting that crime from a budget perspective alone.

The same tactic has been offered for contesting every speeding ticket to prevent governments from using it as a revenue stream. If everybody contested every ticket, it would cost more to in trial costs than the state would make in fines.

A completely obvious check on jury nullification that you've somehow overlooked is jury selection. Juries aren't chosen randomly.

Also, it seems like your argument can be logically extended to be an argument against trial by jury in general, or even against the whole idea of laws that carry punishment. People, especially civilian jurors, aren't predictable or controllable, so there's never any guarantee that some "objective morality" will be carried out by them. And you can't have laws without some person or group of people deciding what those laws are, which almost always will mean that there will be disagreement.

I agree with your analysis and the injustice of outcomes depending so strongly on the specific twelve jurors for cases involving a strongly held small-minority opinion.

On the other hand, I'm not really optimistic about the strategy of electing legislators to effect changes in these specific kinds of laws for all the usual reasons.

In the specific case of marijuana, the benefits of decriminalization are diffuse and primarily among socially marginalized groups whereas the countervailing forces are socially respected and also highly concentrated (politicians who want to "do something", and law enforcement agencies who get a ton of discretionary power and funding out of the "War on Drugs"). This is a recipe for coordination failures on the "repeal" side and for systematic political advantages on the "criminalize" side.

One particular beauty of the jury system is that it is a legitimate buck-stops-here kind of way for local populations to control their local law enforcement in the face of overreaching non-local laws; if a particular city becomes so full of people who just don't believe that marijuana should be criminalized they can make that happen locally. Electing legislators is slow, and in the case of federal laws like drug enforcement, must be made to work in the entire nation at once rather than one-community-at-a-time.

>Then elect legislators who will decriminalize marijuana.

The problem is that politicians are elected on a package-deal of positions. Just imagine the kind of bad haircuts and/or crappy food we'd have if we all voted on which one barber/grocery combination store would service everyone.

That's cute; you think the system isn't broken. I'd rather not needlessly put people in jail and ruin their lives for victimless crimes than be pragmatic.

First, criminal juries aren't randomly chosen.

Second, nullification is itself a check, for the power of the state prosecutor. If you think juries are powerful, remember that the prosecutor is more powerful even than the judge: without a decision by this one state employee, the defendant wouldn't even be a defendant.

From what I've read, something like 98% of criminal cases are pled out before a jury is selected. (Trials are expensive and risky for everyone involved.) So the dominant factor in one's fate, by more than an order-of-magnitude, is what charges the prosecutor decides to file.

Nullification, after all, is just one specific instance of a jury verdict: a way for the citizens to point out that the prosecution is without merit. Our justice system is based on the principle of "innocent until proven guilty", so it's quite deliberate that we err on the side of not convicting.

If there is a 5% chance that a juror would unconditionally acquit for a hate crime he agrees with, and even assuming the prosecutor is dumb enough to randomly select jurors, there's still not a 46% chance of acquittal. A single juror can merely hang a jury. The prosecutor could simply try the case again.

What would it take for me to be acquitted for a hate crime because of a bad jury? As a defendant, I'd have to be one of the 2% that would want to risk a jury trial, despite the evidence against me, over the advice of both my lawyer and the prosecutor, and even though most criminal jury trials result in conviction. Then the prosecutor would have to allow a jury to be selected that consisted of 12 people with the same 1-in-20 prejudice as my crime (or fewer than 12, with the remainder willing to be talked into acquittal). I'm sure it's happened, in certain times and places, but these days it looks like it'd be pretty rare.

Not every jury will return the same verdict for the same crime, but that's inherently not a failure of equal justice. (Jury selection would sure be a lot quicker and easier for everybody if we knew that every jury returned exactly the same verdict!) Sometimes juries will make bad decisions, but I haven't heard any proposed system that can yield justice regardless of the people involved. Better to have the possibility of 12 people who can decide to let me go free, than 1 person who can decide to imprison me.

Finally, IANAL, but I don't think that the legislature can legalize marijuana (short of repealing the Controlled Substances Act, which will never happen). It's a Schedule I drug, as declared by the DEA, an agency led by an appointee. It looks like the ACLU is suing the DEA over this matter. I think my state does want to legalize, and my reading of the Constitution indicates that we should have the right to, so in the mean time, nullification seems like a perfect fit here.

IANAL, but I think it can be permitted, if they just modify the CSA a little. Spirits, beer, malt, wine, and tobacco are already explicitly permitted; they just need to tweak the rest a bit.

You can bet that if marijuana was moved down to Schedule II (due to the low number of deaths caused by its use), they'd find a way to put it back on if they wanted.

Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on.

If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned crimes no matter what the evidence, because they will include at least one person who believes those acts should not be criminal.

<rant>

for whomever wondering how tzs comes up with the numbers, he probably models this problem as a binomial distribution, e.g., Bin(12, 0.05). while binomial distribution is a good approximation for this case, i think hypergeometric is better, since it's not 5% anymore as soon as you choose one juror.

</rant>

No distribution needed - 46% is 100% - (100% - 5%)^12, as if you were rolling a die 12 times. The population is large enough that the effect of removing 11 people from it should be negligible.

This is not "no distribution", this is a binomial distribution - where every one of n items has an equal probability p of being a certain result. You are correct that in this case removing the 11 people from the population is negligible, thus p remains the same.

"Our system is designed around checks and balances"...who make the check and balances ? humans...which exactly means your current system can never be fair...that's why all current legal systems are doom, they can never achieve their mission of providing fair justice...for any software code, given the same input, it always only has 1 interpretation and 1 output, but for the legal system, the same case with the same law will give different outcomes depending on time/people...software engineering practices should just be used in the legal system for it to have a chance of achieving its mission :)

I know this is picking nits, but that just simply isn't true. There isn't always the same output for every single input. That's why there's race condition errors. AI Systems will also alter outputs based on the same input (unless you assume that the knowledge base is constant).

Besides that, there is very good reason for justice to have the ability to change course. While humans are writing it, judging it, and punishing it -- they are also committing the crimes which means their actions might not be all that clear cut.

The jury is screened to make sure those 5% don't serve. All potential jurors are tested to see if they believe something like "it should not be illegal to kill an abortion doctor," or anything else that would cause an unfair trial before they are chosen. The college kids in Boston who get jury duty joke they'll claim to be racist so they can go home.

In addition, lawyers for both sides are allowed to pick a certain number of people to strike from the jury for any reason they choose. Assuming both sides have somewhat competent lawyers (although that's not always true), the chance of having an outlier on your jury is greatly diminished.

Well that's just like, your opinion, man.