This past week I had the fortune to attend a discussion on nullification hosted by the Show-Me Institute with my friend Mitch Richards (a representative of the Fully Informed Jury Association, or FIJA). I should note that nullification issues have been in vogue for the last few years; if I recall correctly, there was a jury nullification topic selected for high school debaters nationwide a year or two ago, and with increasing federal presence in all arenas of economic and political life there is increasing grassroots interest in the topic.
It is not my intention here to discuss the history or legitimacy of nullification issues. Such issues are more fully discussed elsewhere by others. However, I wish to discuss why I find jury nullification strategies valuable but unsatisfying.
Why jury nullification is valuable: It can be used to protect individuals from prosecution under unjust laws, by unjust governments. Note that I say “can” here; despite the functional reality of the existence and the popularity of nullification strategies, it is not certain that they can even be used in many real-life contexts. Moreover, there is no reason to think that juries will only attempt nullification of unjust laws; juries can act in unjust ways. However, as an additional recourse for citizens being unjustly prosecuted by their government, the nullification option is valuable at an important margin.
But the popular focus on jury nullification strategies is very unsatisfying to me. It ignores the pragmatic reality of criminal justice system operation and legislative lawmaking. In particular the nullification discourse completely ignores the agency incentives that determine how laws are actually interpreted and applied by government agents. It is this incentive structure we must understand and seek to change; otherwise nullification efforts will always be stop-gap, low-level efforts against specific laws. Nullification strategies are like using your hands to swat mosquitoes; you might kill individual mosquitoes but that’s of little comfort when you’re in a swamp.
It would be of more practical use to try to pursue other strategies if we are really interested in constraining the justice system to minimize the number of unjust outcomes.
There are two ways in which I see this can be done. First, reformulate the incentive structures facing prosecutors. Second, make it harder for government officials to use official or qualified immunity as a shield from liability. I will be exploring these two policy prescriptions at length in further posts, so stay tuned.