Jury Nullification and the Constituent Power of the People

I. Nullification and the Changing Nature of Criminal Statutes

The legitimacy of jury nullification is surely an interesting jurisprudential question, but that issue today pales in importance to the problems surrounding the disappearance of the jury trial, and indeed the trial in any form, as a locus of political judgment. ¹ For what is distinctive and important about trial judgment can only rarely be characterized as nullification. As Kalven and Zeisel put it the jury’s “war with the law is both modest and subtle.” ² More usually the importance of the trial stems from the ways in which the consciously structured hybrid of languages and practices at trial actualize the contextual moral and political judgment of lay jurors who allow themselves actually to be affected by those languages and practices. ³ The disappearance of the trial is important because it presages the absence or vastly diminished place of that kind of judgment among our modes of social ordering. In this article, I want first to place the jury’s practical judgment in a broader context of institutional change that amounts to increasing bureaucratization of the criminal process and, relying on the thought of Hannah Arendt, offer a more theoretical reconstruction of the continued place of ordinary jury decision-making and then of nullification in the more specific sense.

The notion of “jury nullification” would have no meaning if, as was the case in eighteenth and early nineteenth century America, juries were “judges of the law” as well as of the facts. ⁴ In such a regime, “true law” would be established by the practical judgment of a jury, for which they would be fully responsible, as to the rightness or wrongness of the human action under consideration. The semantic content of any stated rule found in jury instructions might serve as a more or less vague distillation of past institutional attempts at generalization, but no more than that. It certainly could not claim to be “the law.” We have now, however, institutionalized a distinction between the “law of rules,” as Justice Scalia liked to put it, and the jury’s moral judgment. This distinction finds expression in the instruction, endorsed by the Supreme Court in Sparf and Hansen v. United States, 156 U.S. 51 (1895), “You must follow the law, whether or not you agree with it.” In my view, this distinction emerged for institutional reasons – because our basic structure ⁵ itself contained legal aspects that were inconsistent with the moral intuitions of many juries.

We have good accounts of the decline of the jury’s lawmaking power ⁶ and I will not attempt to summarize them here. In my view, two historical realities served to drive a wedge between the political and moral intuitions of the average northern ⁷ jury. The first was the reality of slavery, which was embedded in both Constitutional and statutory law until the end of the Civil War. The second can broadly be called private law doctrines, for example the law of contributory negligence, that accommodated the business interests that controlled courts and legislatures in the Gilded Age. In both cases, the “law of rules” diverged sharply from the moral and political intuitions of juries, giving the Sparf and Hansen instruction real bite, and, of course, creating the sometimes taken opportunity for jury nullification in the narrow sense.

Another set of social and institutional changes have recently altered the range of judgments made by juries and thereby increased the number of situations where nullification in the narrow sense may occur. The unremarkable exercise of traditional jury prerogatives was transformed into nullification by changes in substantive law driven in the main not by traditional normative jurisprudential judgments, but again by institutional imperatives designed to further the operation of economic and social systems. An analogy may be helpful here in explaining how a change in institutional background may change the nature of the “same” action within it. A former student of Mexican-American descent whose ancestors have lived since the early nineteenth century in what is now southern Colorado was fond of saying, “We did not cross the border; the border crossed us” after the Mexican-American war. So too the substantive criminal law has moved in ways that has made the once unremarkable judgments of juries now controversial. The border of nullification has crossed ordinary jury deliberation.

The late William Stuntz has described the evolution of the “low-crime, low-punishment, low-discrimination” criminal justice system that prevailed in northern cities during the first decades of the twentieth century ⁸ into the conveyer belt for mass incarceration that now exists. Two important features of the earlier regime were (1) that “trial procedures were simple” and (2) “the legal definitions of crime were open to a wide range of defense arguments.” Because trials were inexpensive, they were common and “defense victories were common as well[,]” and so prosecutors could afford to lose because “prosecutors paid a small political price for acquittals and were less eager to avoid them than today.” In the early twentieth century criminal law statutes were not yet designed to “foreclose defense arguments” and when they were foreclosed courts were willing to create defenses about which the text of the statute was silent. “Proof of criminal intent meant proof of moral fault, not just the intent to carry out one’s physical actions – the standard that usually governs today.” ⁹ Jurors could decide “whether defendants acted with an ‘evil-meaning mind’ or a ‘vicious will,’ as the law of criminal intent required a century ago but rarely do today[,]” and so made the ultimate determination of “whether individual defendants deserved criminal punishment.” ¹⁰ Trials were “morality plays” where “defendants could raise nearly any colorable argument in their defense” and “defense arguments were not much limited by the rules of criminal law, because criminal law was so un-rule-like.” Probably, then, the most important change occurred “in what lawyers call the law of mens rea, the law of criminal intent[,]” where the law had once “required proof that the defendant acted with a state of mind that was worthy of moral blame.” ¹¹

This change was not the result of a refinement of our understanding of the norms of criminal law: It was almost certainly driven by a broader institutional imperative to increase the number of guilty pleas and reduce the number of jury trials. ¹²

Guilty pleas are easily induced when the law that defines crime is both broad and specific, leaving little room for defense arguments that might lead to jury acquittals. Historically, American criminal law was at once narrow and vague. Both features changed gradually over the course of the twentieth century – but the change was especially stark in the decades that saw America’s inmate population explode. ¹³

An important corollary of these developments was that the important decisions in criminal cases were no longer made close to and after an intense engagement with the facts of the individual cases in trial courts and to some extent in appellate courts. The important decisions were now made at a great distance from those facts and from the defendant, and instead by legislators, and then applied mainly by elected prosecutors, both driven by the imperatives of mass politics. This action at a distance was exaggerated by the rise of textualism in statutory interpretation, which looked askance at judges adding “exceptions and extensions that legislatures did not themselves enact.” ¹⁴ Judicial interpretation ceased to be a “dialogue” between legislatures and courts, but rather, “a monologue in which legislators speak and judges follow orders[,]” rendering law more rule-like, less vague and flexible, because “judges are not permitted to read exceptions and defenses into statutes.” ¹⁵

The criminal law is not the only context in which substantive doctrine has changed to make adjudication more rule-bound and bureaucratic, less amenable to the kind of contextual determinations once associated with juries, and thus expanding the range of possible nullification in the unlikely event that trials do occur. In these cases, a jury’s exercise of that kind of contextual determination may become nullification by virtue of changes in the substantive law. For example, in those circuits that have embraced the Hand formula at the appellate level as the proper statement of the negligence standard, juries are thought likely to make judgments that disregard or nullify it, just as they once made judgments that rejected the draconian doctrine of contributory negligence at the turn of the century. This hasn’t happened because the Hand formula seemed not to have found its way into jury instructions even when established by appellate courts, specifically because defense lawyers expect nullification so don’t propose those instructions. “In other words, seasoned trial lawyers intuit that jurors would find a cost-benefit mode reasoning morally unattractive.” ¹⁶ It is provocative that Professor Hetcher, in providing his account of the norms implicit in tort law, suggests that we ought to reverse the usual way of thinking about these things, where doctrine and theory drive procedure. He suggests that “a new theory of negligence may be needed, one that provides a more accurate account of the jury’s important role in the practice of tort law in America.” In that vision, respecting the place of the jury would drive doctrine and theory and not the opposite, especially since doctrine itself has proven malleable to systems forces beyond the law’s internal norms.

II. The End of Sovereignty and Jury Nullification

We have seen that increasing formalism in legal doctrine has served to render problematic what were traditional prerogatives of the jury. These developments were broadly supported by Congress and state legislatures which, in the ways Stuntz describes, handed police and prosecutors the means by which they could dispose of ninety-five percent of criminal cases through the bureaucratic devices of interrogation followed by plea bargaining, leading to mass incarceration. Scholars have provided accounts of this development as an expression of the fear and then rage of a sovereign people resorting to instrumental means to achieve the goal of crime prevention. In the legislatures, “to be for the people, legislators must be for victims and law enforcement, and thus they must never be for (or capable of being portrayed as being for) criminals or prisoners as individuals or as a class.” ¹⁷ More broadly, “our practice of controlling crime and doing justice have had to adapt to an increasingly insecure economy that marginalizes substantial sections of the population … to a ‘sovereign’ state that is increasingly incapable of regulating a society of individuated citizens and differentiated social groups; and to chronically high crime rates …” ¹⁸ “[W]henever state authorities wage ‘war on crime,’ flourishing penal powers to send law-breakers to their death, or to impose life-cancelling terms of imprisonment, they are deliberately employing the same archaic tactics as did the kings who sent offenders to the scaffold.” ¹⁹ This sovereignty is expressed most dramatically in the imposition of the death penalty: “The punishment is carried out in such a way as to give a spectacle not of measure, but of imbalance and excess; in this liturgy of punishment, there must be an emphatic affirmation of power and of its intrinsic superiority. The excessive sovereign power can thus assume a secular transcendence, coming from beyond, in its power over death.” ²⁰ One can hear echoes here of Weber’s general understanding of modern law: “By inserting violence at the very center of his understanding of the political and reducing the latter to a centralized bureaucratic machine of state domination, a coercive and disciplinary apparatus capable of issuing binding sanction-bearing injunctions, Weber proposed an extremely formal, functionalist, realist, statist version of an instrumentalist-purposive theory of politics.” ²¹

It is broadly consistent with such a vision of popular sovereignty for a juror in one of the relatively few cases that gets to trial to understand his or her role as rigorously applying the law of rules to the cases before him. After all, the law of rules represents the expression of the sovereign will of the people as it is expressed initially through the constitution and derivatively through the determinations made by the popularly elected legislature. If the legislature has responded to a punitive public mood to create the exceptionless rules of the criminal law, then that is a decision that is theirs to make. The jury’s task is to obey the legitimate sovereign will of the people channeled through the constitution and then the legislature. In a moment of extraordinary politics, “we the people” made the constituent ²² decision to create a constitution with just those provisions, including provisions for legislatures with the authority to frame rules of law of general applicability and future intent. Those rules are the media through which the law-making power of the people find their expression in periods of ordinary politics, reducible to legality, once the sovereign people has limited itself through those constitutional rules.

From this perspective, jury nullification constitutes a paradoxical preservation of sovereign power exercised directly, not in the constituent moment of founding, but during the subsequent period of ordinary politics, generally characterized by strict legality. This seems to be the way in which Yale Law Professor Paul Kahn does understand nullification: “The closest thing we have today to the sacral-monarch’s power to create the exception to law may not be the executive pardon but jury nullification, which is best seen as a localized expression of the popular sovereign willing the exception.” ²³ In the context of American criminal law, Akhil Amar sees in the rules that prohibit a trial judge from directing a criminal verdict of conviction, no matter how strong the evidence, and prohibiting a prosecution appeal of a verdict of acquittal echoes of popular sovereignty surviving into the regime of ordinary politics and legality that followed the period of constituent power. ²⁴ This view envisions a sharp distinction between the ordinary doings of juries within the legal system and the occasional exercise of a sovereign will extant in the nullification power in the teeth of the law.

I want to offer two sorts of considerations that question this vision. The first is descriptive. As Kalven and Zeisel noted decades ago, the unusual, though still significant, departure of the jury’s determination from that of the judge stems not so much from an exercise of sovereign will but rather from somewhat different ways of interpreting the evidence that it engages at trial. The usual way of regarding nullification often tacitly assumes that, despite Holmes’ warning, general propositions of law really do decide particular cases and that disagreements between judges and juries are likely to stem from the former “following the law” and the latter declining to do so. If, as I believe, any trial decision is likely to involve a “political” judgment of the relative importance of competing considerations, we are likely to see a continuum of decisions where what might be called the “fairness of fit” of the case within legal rules is more or less central. These decisions cannot be assimilated to Weberian bureaucracy.

The second consideration is theoretical. The notion of the sovereign will as the source of legitimacy of constitutional government is closely associated with the work of Carl Schmitt. He struggled to understand whether there may be any continuing exercise of sovereign will in normal times, after the founding of a constitutional regime, where legality has succeeded the legitimacy of the exercise of the sovereign founding. “On the one hand, he differentiated between the first, extraordinary founding moment, where legitimacy overpowers legality, and the second moment, that of normal politics, where legality subordinates legitimacy.” ²⁵ It is the “sovereign constituent subject” who “creates the normal situation … And implements this normality by binding itself to the constitutional norms and procedural institutions that it has created during extraordinary politics.” After the period ordinary legality is instituted, it is the sovereign who, in Schmitt’s famous phrase, “decides on the exception.” Such an excise of sovereignty after the founding should be made very difficult. Obstacles would include the onerous amendment provisions we find in the Constitution and the rules that allow judges to prohibit nullification in civil cases and that greatly discourage it in criminal cases.

I want to suggest that there is a family resemblance between an understanding of sovereignty as a final deciding will, a general will if you want, and the first mass political and then bureaucratic processes that have given us the criminal law as we have it. When a jury is told to “follow the law whether or not you agree with it,” it is told that the important normative decisions have already been made. Because they are only twelve unelected individuals, they do not exercise any legitimate sovereignty once the “legislative will” is determined. Public moods in part created by mass media and reflected in legislatures and elected prosecutors’ offices seem to have those qualities of irresistible power and of inattention to the detail of specific cases that we naturally identify with sovereignty. If that is our understanding of popular government, then jury nullification would have to be another exercise of will against will.

Hannah Arendt has provided an account of the American constitution that eliminates the notion of a founding rooted in sovereign will. Sovereignty for her, even “popular sovereignty,” “endangers the nature of the political by replacing freedom with hierarchical control and rulership, substituting the plurality of the public sphere with homogeneity and sameness, and supplanting horizontal cooperation among equals with the vertically structured command-obedience model.” ²⁶ In our case, jurors are thus to obey the law expressed in the criminal statutes. She might have seen the criminal justice we have as one result of the “rise of an omnipotent sovereign [which] occurred alongside the rise of the modern nation-state and the formation of a central bureaucratic and administrative apparatus.” ²⁷ The kind of punitive populism that has created our criminal justice and which places the jury in a wholly ministerial role does tend to understand “the people” as a “solid, seamless, homogeneous collective entity, becoming a surrogate for the personal properties of the fallen monarch[,]” conferring on the people “a uniform, omnipotent will reminiscent of the individual properties of the king. Here begins the perilous fiction of the People as One.” ²⁸

Arendt found the constituent power that created the constitution not in a homogeneous Will, something that for her “has a totalitarian kernel,” but rooted in the practices of the “public bodies of self-government that preceded the revolution. By maintaining these public spaces, they were able to discuss, debate, disagree, persuade each other, deliberate, and agree on common issues without resort to violence.” ²⁹ This vision serves to “decenter the constituent power by relocating it with a multitude of participatory public spaces” and so “uncoupled the constituent power from sovereignty.” ³⁰ Unlike Schmitt’s vision of a sharp dichotomy between an extraordinary popular sovereignty founded on will and a legalistically understood ordinary politics, Arendt’s vision allows for considerably more continuity between founding and ordinary politics. The latter involve “a kind of necessary augmentation by virtue of which all innovations and changes remain tied by the foundation which at the same time they augment and increase. Although the revolution has ended and a constitutional government has been established, extraordinary politics continues with the normal means of ordinary lawmaking.” ³¹

Arendt came to see this augmentation in her own jury service:

We have the last remnant of active citizen participation in the republic in the juries. I was a juror – with great delight and with real enthusiasm. Here again, all these questions are somehow really debatable. The jury was extremely responsible, but also aware that there are different viewpoints, from the two sides of the court-trial, from which you could look at the issue. These seem to me quite clearly a matter of common public interest. ³²

It was in the jury trial that Arendt found issues that “really belong in a public realm” and provides an example of one “of the very few places where a non-spurious public still exists.” The political deliberation of juries is directly continuous with the background political practices and institutions from which the Constitution itself emerged. Those jury practices, recognized in the Fifth, Sixth, and Seventh Amendments to the Constitution, express in ordinary times some of the constituent power, residing not in a General Will, but in the background practices with which the founding generation was familiar. ³³ The “higher law” to which they may subordinate legislative enactments is not some brooding omnipresence in the sky, but simply rigorous deliberation about the evidence of the particular case, a practice that is continuous with the constituent power that created the constitution itself.

Arendt’s late reflections on civil disobedience, as she observed it in the 1960s in the United States, cast some light on how she might have regarded jury nullification even narrowly conceived. Arendt understood civil disobedience, as opposed to conscientious refusal, to be an expression of political commitments shared by groups of citizens. It was an expression of “consent, not in the very old sense of acquiescence … but in the sense of active support and continuing participation in all matters of public interest” which is the very “spirit of American law.” ³⁴ That was a spirit apparent in the consent to the constitution, but decidedly different from “consent to statutes that have emerged from bureaucratic parties[,]” ³⁵ such as our criminal statutes. One can, I think, analogize juries to those “voluntary associations” (given the nonenforcement of citizens’ legal jury obligations) from which civil disobedience emerges and which are “ad hoc organizations that pursue short-term goals and then disappear when the goals has been reached.” ³⁶ Those associations are “quite in tune with the oldest traditions of the country[:]” “Ever since the Mayflower compact was drafted and signed under a different kind of emergency, voluntary associations have been the specifically American remedy for the failure of institutions, the unreliability of men, and the uncertain nature of the future.” ³⁷ She argues that civil disobedience should be considered “in connection with liberal representative democracies and their limitations[,] … a necessary supplement to parliamentarianism, interest group politics, and mass democracy that could alleviate their flaws.” ³⁸ Civil disobedients could claim loyalty to the spirit of American law from which the constitution emerged, while flouting the letter of the law produced by legislatures. They would claim to be protecting a higher law against “any unwarranted change initiated by ordinary lawmaking.” ³⁹

The same could, of course be said for jury nullification, especially in criminal cases. But there is a closer and more interesting tie between the two. Arendt was torn as to whether a legal safe haven could be constitutionally created for civil disobedience. It did express the kind of constituent power at the basis of constitutionalism, but the notion of “legalizing” civil disobedience seemed contradictory: “Illegality can hardly be legalized while remain illegal.” ⁴⁰ Yet, “she acknowledged some important benefits of such an inclusion of civil disobedience within the established institutions of normal politics[,]” such as providing an “aura of legality.” But then this kind of legal recognition seemed to rob it of the “rebellious spirit of the constituent power.” ⁴¹

Many of the most important cases in both English and American history establishing the right of juries to engage in nullification involved the trial of persons who had engaged in acts of civil disobedience. Jury nullification, however, remains not fully domesticated within the American legal system. It still involves some rebelliousness. On the other hand, the legal system, especially in criminal cases, shows respect for nullification or at least creates some space for it. Arendt made an incomplete attempt to “find a meeting ground for normal and extra-institutional political activities” through constitutional doctrine. It seems that the American jury’s ordinary practices of interpretation and occasional nullification get this resolution of the tension just about right, if not in doctrine then in practice.