Judge Jack Weinstein Again Sings the Praises of the Jury’s Nullification Power

From United States v. Polouizzi, decided two weeks ago (the latest phase in a case noted by Orin two years ago):

Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury nullification as “the great corrective of law in its actual administration.” And Learned Hand declared that nullification introduces the necessary “slack into the enforcement of law.” It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” See, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 426 (2007) (providing other supporting citations). See Polouizzi I, 549 F.Supp.2d at 450-54 (providing selected bibliography on powers of jurors when Sixth Amendment was adopted).

In Harry Kalven, Jr.’s and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” “It … will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts.” (citing, inter alia, Kalven and Zeisel, supra )).

The experience of trial judges is that the jury is among our most conservative institutions. When in doubt we should trust its judgment, as did those who adopted the Sixth Amendment….

The Supreme Court has recognized that the jury has a significant role in determining punishment. See United States v. Booker, 543 U.S. 220 (2005); Crawford v. Washington, 542 U.S. 360 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court of Appeals for the Second Circuit has conceded the appropriateness of instructing the jury about punishment in some cases. Courts recognize the limits of their new rulings to the special situation before them. As one commentator put it, in “predicting the administrative feasibility of a proposed remedy” on instructing the jury, the courts must move gingerly, limiting themselves to special situations — as this court now does in the present case..

In those decisions reducing the constitutional role of the jury and arrogating to courts themselves greater control of jurors than the Constitution permits, modern federal judges have assigned the ugly name “nullification” to the jury’s exercise of discretion-a word having negative connotations dating back to some juries’ post-Civil War harsh treatment of minorities. A more apt word for modern juries’ exercise of their constitutional power to soften the application of overly harsh laws in specific cases would be “rectification.” Exercise of this corrective power relies on the jury’s historic role, going back to Colonial times, of bringing the law as applied into better accord with current community human considerations.

The argument that the jury will abuse its rectification powers, as it has in some instances in the past to enforce racist local social prejudice, is no longer persuasive in our more tolerant America. Unjustified verdicts of conviction based upon racism can and should be set aside by the court. The fact that a few juries may refuse to convict for racist or other disreputable reasons does not justify denying the jury its historic constitutional role in exercising clemency in appropriate cases. This slippery slope argument is not, in any event, persuasive in the Eastern District of New York where our heterogeneous juries discharge their duties without prejudice.

Federal judges who deal with these cases and diverse defendants are increasingly disenchanted with strict and unnecessarily punitive minimum sentencing requirements in child pornography cases that treat with the same harshness those requiring control and medical help outside of prison and those requiring long incarcerations to incapacitate. This view reflects the same dynamics as the increased flexibility in Guideline Sentencing ultimately approved by the Supreme Court following strong judicial opposition to the harsh rigidity originally required. Compare too, the reduction of death sentences in response to increased opposition, through its elimination in the states, refusals of prosecutors to seek its imposition, opposition of judges, and denial by juries, based upon community sentiment. Judges as well as juries are not immune to the views and influence of an informed community.

Each Article III judge is granted the responsibility to interpret the Constitution as he or she understands it. History confirms — what the Supreme Court has now held of sentencing generally — that the jury’s power to ameliorate the harshness of the law is built into our system of justice. The Sixth Amendment’s right to a jury trial was designed to confirm the opportunity and power of the community (speaking through its cross-section of the petty jury) to forgive, condone or mediate punishment under special circumstances warranting that grace.

Because of this, the court concluded, “it would exercise its discretion on retrial to inform the jury of the five-year mandatory minimum sentence of incarceration required by a conviction for receipt of child pornography through the Internet” (one of the charges involved in this case). For the whole picture on this case, see the opinion, which was long enough that it was split into two documents on PACER: Part I and Part II.