License to nullify: the democratic and constitutional deficiencies of authorized jury lawmaking.

• Author: St. John, Richard

Since the Supreme Court's 1895 decision in Sparf v. United States,(1) it has been a commonplace understanding that criminal juries have the power but not the right to nullify the law before them,(2) either choosing to acquit or convict when they believe the law as presented by the judge to require otherwise. This power stems from a combination of a long-recognized protection of jurors to discharge their function with personal impunity,(3) the double jeopardy prohibition on retrial of acquitted defendants,(4) and the practical difficulties of overturning erroneous guilty verdicts for insufficiency of evidence.(5) But, as the Sparf Court noted, that power does not translate into a right, at least absent some explicit authorization.(6)

Since Sparf, judges and commentators who have weighed in on the issue of jury nullification have typically asked whether nullification either makes for good public policy or, even further, is mandated by one or more provisions of the U.S. Constitution. Many have concluded that jury nullification undermines the rule of law and thus ought to be discouraged.(7) A growing literature, however, argues that nullification actually serves ends that are important to a variety of ideals to which we are socially or even constitutionally committed--trial by jury, due process, even self-government.(8)

Parallel to this emerging scholarly defense of jury nullification, a burgeoning grass-roots political movement seeks to inform jurors of their power to nullify. The most prominent organization in this movement, the Fully Informed Jury Association (FIJA), engages in tactics ranging from leafleting jurors as they arrive at the courthouse to lobbying state legislatures to enact legislation that would explicitly elevate the jury's formerly unspoken power to nullify to an openly acknowledged right.(9) Although none of the twenty-five bills introduced by the group into state legislatures has become law,(10) measures currently or recently under consideration in half a dozen states have received considerable support.(11) Even before the founding of FIJA, three state constitutions--Georgia, Indiana, and Maryland--bore language that appeared to recognize a jury's right to "judge" or "determine" the law.

At first glance, the enactment of the nullification power would appear to circumvent much of the current attack on the legitimacy of nullification. The Sparf court, after all, explicitly limited its holding to those instances where juries were not explicitly authorized to ignore the law, apparently suggesting that jurors could be so authorized.(12) The academic commentary has assumed this point as well. Debate has centered on the public policy concerns that militate for and against the jury's exercise of the nullification power, and relatedly, for and against advising them of this power. No one to date has questioned whether the jury might legitimately be given such a role by the legislature or by the people in a state constitution. This oversight is easy to understand, since there is little question that the enactment of the nullification prerogative would confer on nullification many of the trappings of legitimacy. That legislative mandate would also seem to mollify critics who had seen nullification as disrupting the system of representative democracy. Nullification as such would cease to exist(13) because, under the language of virtually every proposal, jurors would be given the power to "judge" the law.

I argue in this Note, however, that the legitimacy problems inherent in jury nullification run too deep to be cured by legislative enactment. As a matter of democratic legitimacy, as well as constitutional law, the jury's power to nullify becomes more, not less, problematic when it is elevated to the status of putative right. Proponents of jury nullification have convincingly argued that nullifying juries make law. Although they would conclude from this that the jury might be understood as a lawmaking body parallel--or even superior--to the legislature, I will argue that this insight demonstrates the crucial and fatal flaw in the case for enactment of the jury nullification power. When legislatures delegate to juries the right to make law, the law becomes not more but less democratically legitimate. Furthermore, such delegations offend a number of constitutional provisions.

In Part I, I discuss the current laws and proposed legislation enacting jury nullification. While there are important differences among them, particularly between the state constitution provisions now on the books and the current plans, all the proposals grant significant lawmaking responsibilities to juries. In Part II, I argue that such delegations of lawmaking responsibility cannot be justified in terms of democratic theory. Democratic theory cannot countenance lawmaking by juries--either as they are currently composed, or as they might conceivably be composed. In Part III, I show that the problems for democratic theory also translate into constitutional infirmities in all the proposals under discussion. Moreover, these plans offend other constitutional provisions that do not necessarily rest on democratic norms. Given my claim that the nullification power cannot legitimately be delegated to juries, I conclude in Part IV by asking whether juries should continue to be insulated from personal sanction for unauthorized exercise of that power.

1. AUTHORIZED JURY NULLIFICATION: HISTORY AND RECENT PROPOSALS

   The last half decade has seen a flurry of state legislative activity aimed at recognizing, as a matter of positive law, the jury's power to nullify. Such legislation has been defeated in most of the twenty-five states where it has been introduced, but legislation is still pending in a number of other states.(14) This legislation was approved by Oklahoma's house, Arizona's senate, and legislative committees in at least three other states before ultimately failing.(15) Legislators and the grass-roots supporters of these measures vow to reintroduce the legislation each year until it passes. With each legislative session, growing support seems to make passage more likely. Meanwhile, longstanding state constitutional provisions in Georgia, Indiana, and Maryland contain language appearing to give criminal juries the power to "determine" or "judge" the law as well as the facts. In these states, however, judicial interpretation has constrained much of the jury discretion seemingly intended by the provisions.

   In this Part, I analyze the extent to which these state constitutional provisions, as well as various proposals offered in recent years, can be understood to grant lawmaking authority to juries. I argue that while the language of the Georgia, Indiana, and Maryland constitutions lent itself to judicial evisceration, the legislation more recently proposed has been styled so as to be insulated from such judicial limitation. This insight is significant for Parts II and III, which argue that authorizations of lawmaking authority conflict with democratic norms and the U.S. Constitution. Thus, while judicial limiting constructions in those three states have largely cured the democratic and constitutional infirmities of their provisions, no such cures are available for the nullification plans proposed more recently.

   1. State Constitutions and the Power to Nullify

      Discussions of jury nullification often include at least passing reference to provisions in the constitutions of Indiana and Maryland that are cast as authorizing jury nullification. These states are then treated as "laboratories"(16) for studying how nullification works in practice. A similar provision in Georgia is also sometimes cited for these purposes,(17) but some commentators have recognized that interpretation by Georgia courts has rendered this provision a nullity.(18) What often goes unrecognized is that courts in Indiana and Maryland have similarly cut back on the jury's nullification power within their jurisdictions. Furthermore, while the language in these provisions might plausibly be read to delegate a lawmaking power to the jury, it might alternatively be read to say much less. This Section explores how the provisions in these three states have functioned historically and how their language has been constructed over time by the courts.

      1. Georgia

         Under a provision originally ratified in 1877, the Georgia Constitution states that, "[i]n criminal cases, . . . the jury shall be the judges of the law and the facts."(19) Although the language authorizing jurors to act as "judges of the law" might appear to give jurors broad discretion to reject either the law as written by the legislature or as presented to them by the judge, any such interpretation was foreclosed by judicial decisions following closely on the heels of ratification.

         Just three years after this constitutional provision was ratified, Hill v. State(20) presented the Georgia Supreme Court with an opportunity to construe and apply it. Hill was convicted of murdering one Simmons, whom Hill accused of having seduced his wife. Although the trial court allowed the jury to hear evidence of the alleged seduction, it instructed them that under state law the killing could be excused only if it had been necessary to protect Mrs. Hill from an immediate act of assault or seduction.(21) The court instructed:

         The court delivers to you the law with care and upon great

         consideration, and you may safely rely upon its correctness as the

         court delivers it. It is your exclusive province to find the facts in the

         evidence. You judge the law and the facts, and they lead you to the

         truth.

         Take no heed of anything read or spoken to you to the contrary

         hereof. Courts and juries cannot--nay, dare not--swerve from the

         truth in the law any more than in the facts.

         . . . The law is not wrong. But if it was wrong, neither you nor

         the court could change it.(22)

         Although the trial court's charge did tell the jury that "[y]ou judge the...