New Hampshire may be small, but it’s feisty.  And when it comes to jury nullification, it’s been a leader before, and it’s doing so again.

[T]here’s been a lot of cheering about a new bill in New Hampshire, recently passed by the New Hampshire House of Representatives, that would allow juries to learn that:

Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

This is New Hampshire’s second try at making jury nullification the law.

In the case at hand, The State of New Hampshire v. Richard Paul. Richard Paul was convicted of selling marijuana and LSD. During closing arguments, his attorney urged nullification. By the court’s description, the prosecutor acknowledged the jury’s nullification role, but argued that the jurors should convict based the law—an understandable back and forth between prosecution and defense.

Then, the judge issued “jury instructions that effectively contravened his ‘jury nullification defense.'” Paul appealed his subsequent conviction.

Honestly, the law had been watered down in the course of its passage through the New Hampshire legislature, from a version that, the court concedes, instructed the jury to “judge the law” and “nullify any and all actions [the jurors] find to be unjust.” The enacted version reads, instead, “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

The first try was a half-hearted effort, and the court sucked the other half out of it. So, back to the drawing board they went.  Courts really hate the idea, despite Justice Sonia Sotomayor’s suggestion to the contrary:

There is a place, I think, for jury nullification — finding the balance in that and the role judges should play.

While she doesn’t offer much of a clue what that balance might be, her mere positive mention of jury nullification was huge.  And as lawprof Paul Butler forcefully wrote, black defendants are “sick and tired” of suffering convictions that might not have happened if there was jury nullification:

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.”

In a WaPo op-ed, Instapundit Glenn Reynolds agrees, arguing that jury nullification is the counterbalance to prosecutors having too much power.

Despite the evidence, those responsible for convicting you may choose to let you go, if they think that sending you to jail would result in an injustice.

That can happen through what’s called “prosecutorial discretion,” where a prosecutor decides not to bring or pursue charges against you because doing so would be unfair, even though the evidence is strong. Or it can happen through “jury nullification,” where a jury thinks that the evidence supports conviction but then decides to issue a “not guilty” verdict because it feels that a conviction would be unjust.

It would seem as if the competing incentives are judges, who are unwilling to share their power with a jury such that it will detract from their majesty, or prosecutors who want to maintain their discretion (“we’re professionals, don’t try this at home”) but reject the idea that a jury might disagree with their decision that the guy deserves to be convicted.

Kinda makes the whole issue seem obvious, right? Jury nullification is that populist relief valve for when the government, the courts, the prosecution overreaches, and the people say “enough!” What’s not to like?

So I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust — and, if that happens, let the defendants’ attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding — in which case the defendants’ costs should come out of the prosecutor’s budget. 

Yay?  Sure, if it works out that way. But as with so many things law-ish, offering the ideal vision of how law would work without the ugly side doesn’t adequately inform.

Most people who show up for jury duty would prefer to convict twice rather than nullify.

But so what? Even if it doesn’t work every time, at least it should be available to the jury for that case where it does work, right?  Of course, that means this argument is legit as well:

Ladies and gentlemen of the jury, don’t convict this fine, upstanding American of murder, because the dead guy was [black, gay, transgender, muslim, rapist] and no one cares if they live or die anyway.

That’s how jury nullification worked in the deep south, post-lynching. Or maybe this will be the discussion in the jury room:

So, they didn’t prove he was guilty beyond a reasonable doubt, but we really hate this guy, we really, really hate the crime, and since applying the law is optional anyway, let’s just convict him because, well, he deserves it.

This is not to say that New Hampshire shouldn’t give this experiment a go, and perhaps it will serve to give prosecutors, not to mention tough-on-crime legislators, some skin in the game.  But better the experiment happen there, in that small and feisty state, than where I live.  Remember, just because things are bad doesn’t mean they can’t get worse. Jury nullification may well prove to be an improvement, but that doesn’t mean it won’t prove to be a fiasco as well.