I learned about jury nullification while serving as a prosecutor in the District in the 1990s. As a rookie, I was warned that in nonviolent drug cases, it would be tough to get a conviction, no matter how strong my evidence was. The experienced prosecutors explained that the African American jurors “didn’t want to send another black man to jail.”
As I tried cases, I gained enormous respect for the seriousness with which jurors approached their work. The jurors were often elderly African Americans who had moved to D.C. to escape the Jim Crow South, and they were honored to serve on a jury because they came from places where blacks didn’t have that privilege. These jurors had no problem convicting anyone of a violent offense, if the government proved its case.
For drug crimes, however, it was a different story. Then, as now, if you go to D.C. criminal court, you would think that white people do not commit crimes. There are virtually no white defendants. The jurors must have decided that they didn’t leave the old Jim Crow to help implement the new Jim Crow. So they frequently voted “not guilty” in nonviolent drug cases, no matter how compelling the evidence.
Once, I chased down the jurors after I lost a drug case in which the defendant practically admitted he did it. Only one woman would talk to me. “We all knew he was guilty,” she said. “But he was so young.”
When I started teaching law, I published an article in the Yale Law Journal situating these D.C. jurors in a long line of jurors who refused to go along with an oppressive criminal-justice system: jurors who refused to convict American patriots of sedition against the British crown; jurors who acquitted people guilty of violating the Fugitive Slave Act; and jurors who would not punish gay people for “sodomy” for having consensual sex.
In the Yale article, I endorsed the D.C. jurors’ protest against selective prosecution of blacks. Yes, the jurors had taken an oath to follow the law, but they were following the advice of Alexander Hamilton, who said jurors should acquit even against the instructions of the judge, “if [in] exercising their judgment with discretion and honesty, they have a clear conviction that the charge of the court is wrong.”
The late journalist Mike Wallace featured my article in a segment on “60 Minutes,” warning that my proposal — that black jurors should vote not guilty in nonviolent drug cases — would “scare” a lot of people.
But some 20 years later, the whole world knows what African Americans have been saying all along. There are two justice systems in the United States: one for privileged white people, and another, inferior one for everyone else. Last year, 90 percent of the people sentenced in D.C. criminal court were African American, even though blacks make up less than half the city’s population.
Nationally, most of the people locked up for drug crimes are African American, in spite of studies that demonstrate blacks don’t use or sell drugs more than any other group. We make up 13 percent of the country’s population but nearly 60 percent of the people doing time for drug offenses.
And an endless series of videos have shown how black people get policed: the mailman arrested in Brooklyn for yelling at the cops who almost ran him down; the teenage girl tackled by the cop at a pool party in McKinney, Tex.; Eric Garner, arrested for selling a cigarette in Staten Island and then put in a chokehold that killed him.
Like a lot of African Americans, I am sick and tired of being sick and tired. I encourage any juror who thinks the police or prosecutors have crossed the line in a particular case to refuse to convict.
Judges frequently make rulings that mean guilty people get off. For example, when the police have collected or analyzed in violation of the defendant’s rights under the Fourth Amendment, the evidence they found is suppressed even if that means that the defendant goes free. The point of the exclusionary rule, as this principle is called, is to deter police misconduct. It lets the cops know if they don’t follow the rules, they don’t have a case. Jurors should send police and prosecutors that same message about equal justice under the law.
Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that black lives matter. If they think that the police are treating African Americans unfairly — by engaging in racial profiling or using excessive force — they don’t have to convict, even if think the defendant is guilty.
Similarly, if prosecutors are selectively going after African Americans for offenses that white people do not get prosecuted for (drug crimes, for example), then jurors should not endorse that discrimination. By voting “not guilty,” jurors let prosecutors know that “just us” justice for black people is no longer acceptable.
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