WASHINGTON -- Until the O.J. Simpson verdict shocked the nation, "jury nullification" was just another obscure little doctrine that hardly anyone but lawyers cared about.
No more. Barber shops and beauty parlors are abuzz with talk of "jury nullification," whether or not they call it by that name. By any name, it raises tough questions about when and where it is appropriate to let a guilty person go free and when, if ever, it is proper to take race into account.
Jury nullification occurs when a jury acquits a defendant it
believes to be guilty. The idea of a jury putting aside evidence to set a guilty man free would seem to fly in the face of justice. But a closer look at history reveals it to be an idea that has long been considered essential to American justice.
The jury system has provided a cherished check on abusive state power ever since it was imported here from England during the colonial period. American juries at the time protested against the British crown by refusing to convict rebels like colonial New York publisher John Peter Zenger. By releasing Zenger, who had been accused of violating a law that made it illegal to criticize government officials even if the accusations were true, the jury helped establish a fundamental American freedom: Freedom of the press.
Similarly, northern juries who freed escaped slaves prosecuted under the Fugitive Slave Law helped further the abolitionist cause.
Jury nullification got a terrible name when all-white Southern juries refused to convict the known white killers of blacks. When the Simpson jury was accused of ignoring facts to acquit Simpson, it echoed the worst of that earlier shameful period.
But there's another side. Without getting into the particulars of the O.J. Simpson case, Paul Butler, associate professor at the George Washington University law school, writes in the December issue of the Yale Law Journal (excerpted in the December issue of Harper's) that it often is entirely appropriate for black jurors to take race into account.
"I now believe that, for pragmatic and political reasons, the black community is better off when some non-violent lawbreakers remain in the community rather than go to prison," says Mr. Butler, who is African American and former federal prosecutor in the District of Columbia.
He asks us to imagine a country in which a third of the young male citizens are under the supervision of the criminal-justice system (either awaiting trial, in prison, on probation or on parole), a country in which two-thirds of the men can anticipate being arrested before they reach age 30, a country in which there are more young men in prison than in college.
"The country imagined above is a police state," Mr. Butler argues. "When we think of a police state, we think of a society whose fundamental problem lies not with the citizens of the state but rather with the form of government, and with the powerful elites in whose interest the state exists."
Do many black folks buy this? Would they? Could they?
It is important to note that black leniency toward black defendants has been vastly overstated. If black jurors were lenient, we would not have seen black incarceration rates grow as swiftly as they have in the past three decades to where blacks make up half the nation's jail inmates, even though we are only about 12 percent of the population. Blacks are acutely aware of the dangers posed by black criminals, since blacks are, by far, their most frequent victims.
The black double blind
If black jurors have earned a reputation for being more lenient than whites, it is largely because black Americans are more likely to feel caught in something of a double bind between black criminals, abusive police and a political establishment that offers no answers for black misery except the construction of more prisons.
There are not a lot of things frustrated urban citizens who don't have much political clout can do in response. Their voices might not be heard as loudly as the voices of wealthy campaign contributors are.
But, when called to serve on a jury in a case in which the evidence looks even a little fishy -- or one in which the defendant appears to pose no clear or present danger to the community -- they can do something to make a difference. They can say "not guilty."
In this way, one might say that jury nullification becomes a civil uprising by other means. Like all uprisings, it carries with it high risks and grave dangers. Some might call it a recipe for anarchy. But anarchy already is a growing reality in streets beset by drive-by shootings, crumbling families and vanishing black men. Nullification is a sign that the criminal justice system is not trusted. We should find out why.
"Send a message," said Mr. Simpson's defense attorney, Johnnie Cochran.
Juries always do. The rest of us should listen, even when it is not the message we want to hear.
8, Clarence Page is a syndicated columnist.