Prosecutors Get to Choose, Why Not Juries Too?

Ilya Somin, in his August 7, 2015 VC/Washington Post post, “Rethinking jury nullification,” quotes Glenn Reynolds August 6, 2015 USA Today column “Nullifying juries more interested in justice than some prosecutors“:

Of course, prosecutors have essentially the same power, since they’re under no obligation to bring charges against even an obviously guilty defendant. But while the power of juries to let guilty people go free in the name of justice is treated as suspect and called “jury nullification,” the power of prosecutors to do the exact same thing is called “prosecutorial discretion,” and is treated not as a bug, but as a feature in our justice system.

I recommend both Ilya Somin’s post and Glenn Reynold’s USA Today column to students researching the federal court reform topic. Judging by cases popular at summer debate camps, jury nullification cases will be run.

When I have discussed jury nullification at past Economic Thinking workshops, I’ve suggested that if states were to make homeschooling again illegal, juries would be an important line of defense for homeschool families prosecuted under such laws.

Link to book on Amazon.

Critics of jury nullification, and of judicial overreach, argue that unjust laws and
regulations should be dealt with through legislative action, that is, via the democratic process. They say, if you want better laws, or fewer bad laws, get out there and vote for better legislators.

Advocates of federal court or jury action to invalidate legislation and regulation counter that the U.S. Constitution provides power to judges and juries to exercise their volition in evaluating the Constitutionality and justice of existing laws and regulations. Hundreds of thousands of regulations from federal agencies open everyday people to criminal prosecutions. No one elected these regulators and no election process is likely to remove them.

So federal courts can and do act, in one recent example, to protect the economic freedom of raisin growers. This 2013 Los Angeles Times article gives the background on raisin regulations that long seized grower’s raisins:

The programs were created in the 1930s as a means to stabilize prices by limiting the supply of raisins on the market. The federal government can mandate that raisin growers not bring to market excess raisins in order to keep prices from fluctuating wildly. 

The Hornes, however, ignored the order and were fined. They argued that their 5th Amendment rights were violated when the government fined them for not surrendering their required portion of raisins under the marketing order. 

In a 2002 letter to the secretary of agriculture and the Raisin Administrative Committee, a group that  includes producers and handlers, the Hornes wrote: 

“The Marketing Order Regulating Raisins has become a tool for grower bankruptcy, poverty and involuntary servitude… We will not relinquish ownership of our crop. We put forth the money and effort to grow it, not the Raisin Administrative Committee. This is America, not a communist state.”

The Supreme Court ruled that the Hornes do not need to pay the fine before challenging the constitutionality of the fine.

The Supreme Court upheld raisin farmer freedom in a June 22, 2015 decison, and economist John B. Taylor provides some history (links at source):

It took ten years, but it is an important victory for the Hornes, and for my colleague Mike McConnell who represented the Hornes at the Supreme Court. And it is also a victory for economic freedom because it prevents the raisin program from intervening in the market in the way it has been for years (the program began with the Agricultural Marketing Agreement Act of 1937).  For these reasons the case has attracted a lot of attention (see Wall Street Journal opinion and news articles, and my blog pieces here with more references).  And it is kind of exciting that this is happening in this 800 anniversary year of Magna Carta which we celebrated at the Hoover Institution last week. Chief Justice John Roberts noted in the majority opinion that “The principle reflected in the [Takings] Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any ‘constable or other bailiff’ from taking ‘corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller’….The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property.”

So the Supreme Court can protect economic freedom even from long-standing federal regulatory schemes. Can juries do the same by voting not guilty in cases where they are convinced the law is unjust? Juries may be wrong in their decisions, but prosecutors, as noted above, can be wrong too.

However, for jury nullification to provide relief, cases need to have juries, which the great majority don’t. Earlier posts have discussed the importance of jury trials, even they they cost more and consume the time of citizen juries. (When I was on jury duty some years ago, most of my time was wasted by the the local court. Given the very low pay jurors receive, courts apparently have limited incentives to use their time wisely. And of course, courts have many other issues to deal with each day.)

Students researching jury nullification issues are encouraged to read books and articles by scholars. Debate judges may not appreciate jury nullification advocacy any more that courtroom judges. So citing the long history of juries resisting arbitrary state power, even when thrown in jail for their convictions, can influence community and parent judges. And it will help to cite the views of Thomas Jefferson, John Adams and other of America’s founders on the central role of juries.

Here is the Amazon.com description for the November, 2013 book Jury Nullification: The Evolution of a Doctrine, (“First copublished by the Cato Institute and Carolina Academic Press in 1998.”):

Juries have been delivering independent verdicts in the interest of justice for over 800 years, serving as the final check on government’s power to pass unjust, immoral, or oppressive laws that leave citizens at the mercy of sometimes jaded or corrupt courts and legislatures. This was what the Founding Fathers feared, and this is the reason why they guaranteed trial by jury three times in the Constitution – more than any other right. In Jury Nullification, author Clay Conrad examines the history, the law, and the practical and political implications of jury independence, examining in depth the role of nullification in capital punishment law, the dark side of jury nullification in Southern lynching and civil rights cases, and the purpose and legal effect of the juror’s oath. This book should be of interest to historians, trial lawyers, criminologists, political scientists, and anyone interested in knowing how our criminal justice system works – and how to make it better.

[Update: August 11, 2015, here is Washington Post, Volokh Conspiracy post “The problem with jury nullification,” critical of arguments above. ]