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Is Jury Nullification Libertarian?

A while back, at our local libertarian discussion group, we spent an evening discussing centralization vs. decentralization of government, and whether one or the other better protects individual liberties. 

Many libertarians argue for decentralization.  The anarchists in the room will argue for the ultimate decentralization, all the way to the individual level, essentially voiding the concept of government altogether.  Others who are more amenable to some government argue for decentralization because it tends to allow for competition, with citizens voting with their feet and wallets for more favorable tax and regulatory regimes.

On the other hand, the US provides historical examples of the benefits of federalism in protecting individual rights.  Certainly the abolition of slavery and later of Jim Crow laws were a positive outcome from the feds, as are the enforcement of Bill of Rights protections on the states.  I would personally love to see a federal system like our own with all legislative power held as locally as possible, but with a federal government whose main purpose domestically was not taxation/regulation/legislation but instead enforcement of a more robust Bill of Rights and nullification of state and local law that violated protected individual freedoms.

Anyway, one topic related to decentralized authority was jury nullification.  Jury nullification is the ability for juries to rule on the law, rather than guilt or innocence.  An example might be "the jury thinks Joe is guilty of smoking pot, but we don't think smoking pot should be illegal, so we are going to let Joe go."  Most state law technically does not allow juries to rule on the law itself, but as a practical matter there is no way juries can be prevented from doing so  (Prosecutors really go non-linear over jury nullification -- I remember Patterico had a long series inveighing against it.)

Anyway, as you might imagine, the libertarians in the room mostly love jury nullification.  Despite being a good anarcho-capitalist, I disagreed. I understood that most of the examples people brought up did indeed demonstrate that jury nullification could be a tool for protecting individual rights.  However, I believe that nullification could equally be a tool of oppression.  For example, in criminal law, take the Enron-Skilling trial.  I am not saying this happened, but one could certainly imagine a properly inflamed jury saying "well, we don't think he is technically guilty beyond a reasonable doubt on the charges based on the evidence here in court, but he's rich and Enron failed and people lost money and we're pissed off, so we will find him guilty.  They would be saying "what he did was not a violation of the law, but it should be, so we are sending him to jail." This is just as much jury nullification as my previous example.

I don't think this kind of anti-individual-rights jury nullificatin happens often in criminal court, but I do think it is happening a lot in civil court.  In fact, I think one way you could summarize what is wrong with torts and litigation in this country is that we are seeing rampant jury nullification in favor of wealth redistribution.  Juries are ignoring the law, the facts of the case, and all reason for one and only one consideration:  "One guy in the room is rich, one guy is not, and I have a chance to take money from the rich guy and give it to the poor guy."  For while it may be hard in America to get 51% of the voters to support substantial increases in wealth distribution, smart lawyers like Peter Angelos and Jon Edwards have figured out that it is not that hard through voi dire to get at least seven or eight such votes in a room of twelve people.

Particularly if you are good at venue-shopping:

In Race, Poverty and American Tort Awards (and here), Eric Helland and I show that tort awards increase strongly with county poverty rates especially with minority poverty.  A 1% increase in black poverty rates, for example, can increase tort awards by 3-10 percent with a similar increase in Hispanic poverty rates.   Careful forum shopping can easily raise awards by 50-100%.

Anthony Buzbee, a famed plaintiff's attorney, inadvertently let the cat out of the bag recently when talking about Starr county in Texas.

"That venue probably adds about seventy-five percent to the value of the case," he said. "You've got an injured Hispanic client, you've got a completely Hispanic jury, and you've got an Hispanic judge. All right. That's how it is."

In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing "here's what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that's the hurdle: Just prove that he wasn't hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases."

The problem with letting juries write law in the jury room is that there are no Constitutional protections at all.  If they want to make the law, at least for that day, read that homeowners are liable for injuries suffered by burglars trying to break into their house, then that is what the law becomes, fair or not.  If they want to make the law read that drug companies shouldn't sell painkillers that have any risk at all, then that is what the law is, and the rest of us 300 million minus twelve people have to live with fewer choices for managing our migraines. 

Posted on March 1, 2007 at 11:00 AM | Permalink


The phrase "jury nullification" tends to distort the issue. In criminal cases, juries are expected to serve as a check on the authority of the prosecutor and the judge. Nullification is a part (and necessary risk) of the system. In civil cases, juries are, as you explain, the law without any checks. The real question is whether it's time to abolish civil juries or at least limit their jurisdiction. Much of the "civil justice" system can be effectively privatized with arbitrators and private judges.

Posted by: Skip Oliva | Mar 1, 2007 11:11:42 AM

Is there any way to separate this question and answer it with reagrd to criminal law and civil law differently?

Posted by: Trent McBride | Mar 1, 2007 11:30:37 AM

Good point Trent.

I tend to see the jury as a check on the legislative and judicial process espcially in criminal cases, but in civil there should be a different standard.

Posted by: Thomas | Mar 1, 2007 12:41:23 PM

"I don't think this kind of anti-individual-rights jury nullificatin happens often in criminal court, but I do think it is happening a lot in civil court."

I think that OJ Simpson and Robert Blake would have to agree with you.

Posted by: Jim Collins | Mar 1, 2007 12:57:06 PM

The Founding Fathers recognized that all institutions can wander off
the straight and narrow and gave us jury trials as a way to keep all
the rest of the "justice" system on a track of relevance. When the
system goes too far out of alignment with the common man's notion of
justice it the obligation of the jury to nullify.

BTW, thanks for CoyoteBlog.

Posted by: Allan Ames | Mar 1, 2007 1:41:24 PM

This is another illustration of the policy/procedure distinction. Jury nullification isn't inherently liberal or illiberal, because it's a procedural issue, not a policy issue. Whether or not it results in more liberal policy outcomes is an empirical question. And I have no idea what the answer is.

One factor that mitigates the abuse of jury nullification is appeal. Don't these absurd awards that we hear about usually come way down on appeal? And in criminal trials, I suspect that if someone were convicted with blatant disgregard for the law, the conviction would probably be overturned on appeal. On the other hand, the proscription against double jeopardy means that an acquittal can never be overturned.

There is one way in which jury nullification can cause an irrevocable miscarriage of justice. In a criminal trial, a jury can refuse to convict the perpetrator of a crime against an unpopular target. I'd expect this to happen in union violence cases, for example.

Posted by: Brandon Berg | Mar 2, 2007 1:42:22 AM

The worst of jury nullification: "the jury thinks Joe is guilty of lynching blacks, but we don't think lynching blacks should be illegal, so we are going to let Joe go."

It's happened many times, although thankfully a long time in the past. However, I don't see any way that it could have been prevented at that time and place. It's like gun control: if the jury is willing to ignore the laws against murder, they're not going to obey a law against nullification...

Posted by: markm | Mar 2, 2007 6:32:52 AM

The last few comments remind me to mention Clay Conrad's excellect "Jury Nullification". It was a good attempt to answer the empirical questions, and the answer was that, historically, jury nullification has served justice rather than inhibited it.

Posted by: Trent McBride | Mar 2, 2007 10:50:20 AM

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