In Let's Get Free, in a chapter called Jury Duty: Power to the People, Butler puts forth a proposal for strategic jury nullification. Professor Butler argues that the criminal justice system is broken, not just in regards to African-American defendants, but indeed to all of society. After all, though America consists of only five percent of the world's population, it holds twenty-five percent of the world's prison population. Professor Butler criticizes America's "lock 'em up" culture, and he argues that, before voting to convict, jurors should always consider the fairness of the law under which the defendant is prosecuted and the societal costs of incarceration.
In this excerpt from Let's Get Free, Professor Butler outlines his new proposal, encouraging more jurors to consider jury nullification and become "Martin Luther King Jurors."
Martin Luther King Jurors
At this point, every American citizen should ask whether he or she is satisfied to live in a country that has the highest rate of incarceration in the world. If not, there is something that you can do to help make the United States more safe and free.
A careful campaign of strategic nullification can help responsibly free those people for whom prison will do no good, and it can send a powerful message for change.
During the civil rights era, Martin Luther King Jr. was forced to resort to extreme tactics, which he called creative disobedience, to break down the walls of discrimination. With our criminal justice system hell-bent on locking up so many people for nonviolent conduct, now is the time for Martin Luther King jurors.
A Proposal for Strategic Nullification
When a defendant is accused of possessing drugs for his or her own use, or selling a small quantity of drugs to another consenting adult, Martin Luther King jurors should vote "not guilty.
When a defendant is accused of murder, rape, robbery, theft, public corruption, corporate fraud, any other crime of violence, or any crime that has a victim, Martin Luther King jurors should convict if they are persuaded that the evidence proves the defendant guilty beyond a reasonable doubt.
When a defendant is accused of selling drugs to minors, or providing drugs to anyone without their consent, Martin Luther King jurors should convict if they are persuaded that the evidence proves the defendant guilty beyond a reasonable doubt.
This strategic nullification is perfectly legal, and has two great benefits. First, it helps the community by safely reducing the number of incarcerated people. Second, it sends the message that "We the People" want fundamental change in our criminal justice system. This message is intended for both lawmakes and prosecutors.
Professor Butler recently outlined his theory of strategic jury nullification in a recent talk as a part of the Little Idea Series, presented by New York City's Gallery Bar.
In a recent article, Professor Butler provided this summary of the premise, theory, and history of jury nullification:
The Fifth Amendment prohibits defendants from being tried for the same crime twice. This means that when a jury finds someone not guilty, there can never be a re-trial -- even if the judge disagrees with the jury's verdict, or if there is compelling new evidence of guilt. The Supreme Court has ruled that this doctrine gives juries the power to nullify the law. If jurors believe the law is unjust, they don't have to apply it. There is nothing that anyone can do to prevent jurors from nullifying -- under the Constitution, when it comes to acquittals, jurors have the last word.
Nullification works only in one direction -- in favor of acquittals. If a jury finds someone guilty, and there is compelling evidence that the person is innocent, judges have the power to overturn the jury's conviction (that doesn't happen a lot in the real world). Giving jurors more power to acquit is based on the constitutional principle that it's better to let guilty people go free than to allow the innocent to be punished.
The idea that jurors should judge the law, as well as the facts, is a proud part of American history... The concept that jurors decide justice became an important part of American jurisprudence...
Perhaps the most shining example of nullification occurred during the shameful time in US history when slavery was legal. People who helped slaves escape committed a federal crime -- violation of the Fugitive Slave Act. But when Northern jurors sat in judgment of these "criminals," they would often acquit, even when the defendants admitted their guilt. Legal historians credit these cases with advancing the cause of abolition of slavery.
Tell Your Juror for Justice Story!
Have you been a juror recently? Have you nullified? Professor Butler wants to hear your story. Tell us your entire experience.
How was the voir dire process by which you were selected as a juror? What kind of questions did the prosecutor, judge, and defense attorney ask?
What kind of case was it? Without giving away the identities of the victims or defendants, what were the facts of the case? Did you believe that nullification was appropriate? What did other jurors think?
