Jury nullification against a racist system

    The New York Review of Books has been much concerned with prison issues lately, thank goodness, and their most recent piece is David Cole’s “Can Our Shameful Prisons Be Reformed?” I commend to you the whole of it, but for the purpose of this short post, I’d just like to point out one section. Cole is thinking through the proposals for reform made by Paul Butler in Let’s Get Free: A Hip-Hop Theory of Justice (published by the good folks at The New Press). Most of them he finds sensible: decriminalizing possession of small amounts of drugs, stay-in-school incentives, lead paint removal, and sentence reduction for nonviolent offenders. But there is one proposal that Cole finds troublesome:

    Butler calls on juries, for example, to engage in “nullification” of the criminal law to protest mass imprisonment. Because juries need not give reasons for their decisions, they have the discretion to acquit even where the state has proved criminal behavior beyond a reasonable doubt. Butler proposes that jurors consciously adopt the tactic, as a kind of civil disobedience, to resist mass incarceration—but only in cases involving victimless crimes.

    This proposal has many problems. First, jurors act episodically and in secret. Thus, unlike civil disobedience, acts of nullification are unlikely to have a galvanizing effect. Second, to engage in a conscious strategy of nullification will often require dissembling, itself criminal behavior. If a potential juror admits that she will not vote to convict no matter how strong the evidence is, a judge will not let her sit on the jury. Thus, to engage in this practice may require citizens to lie. It is not wise to build a movement for social change on deceit. Third, it is often difficult to know whether a crime is in fact “victimless.” Prosecutors often pursue relatively low-level offenders in the hope that they can “encourage” them to identify wrongdoers further up the chain of command. Even if the foot soldier is not engaged in activity that harms victims, an organized crime ring may have many victims. How is a juror to assess whether a given prosecution is a legitimate part of such a broader investigation?

    Here we venture into the endless gray area that troubles acts of nonviolent resistance. Is one really not doing violence? Is disruption of an unjust system always a good thing? And how can one be sure one is right about a given offender?

    I wonder if any of you out there have faced a situation like this, and if you have any insight about the wisdom of Butler’s proposal.

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