Jury Nullification in Capital Punishment

Through jury nullification, the jury chooses to ignore the law as provided by the judge, and instead returns a verdict based on its sense of justice. This practice is infrequent, and although courts refuse to endorse nullification, they nonetheless recognize the jury’s power to do so. Reasons for nullification, which has roots in early England and America, are moral and religious considerations, preventing an unjust exercise of official power, and perceived unfairness of the law. Opponents argue that it is lawless and anarchic conduct, a violation of juror oaths to follow the law, allows the jury to apply their own notions of the law (quasilegislative function), and are based on out-of-court considerations like sympathy and prejudice.

In a capital case, the jury, after first assessing guilt in the trial phase, next moves to the penalty phase of the trial; where they weigh both ‘‘aggravating’’ and ‘‘mitigating’’ factors in determining whether the death penalty or life imprisonment is appropriate. Aggravating factors may include heinousness of the crime and prior record, whereas mitigating factors might address childhood exposure to physical abuse or parental alcoholism and drug addiction.

A capital jury, notwithstanding a preponderance of aggravating factors, may decide that life imprisonment is appropriate. Media depictions of the wrongfully convicted/incarcerated may persuade the jury to err on the side of caution. Recognition that other Western societies prohibit Capital Punishment may play a role. Defense counsel’s successfully ‘‘humanizing’’ the defendant may be an explanation. These and other considerations, known only to the jury, may account for why an abundance of ‘‘aggravating’’ factors, consistent with imposition of the death penalty, will nonetheless be ignored (nullified) by the jury.

RICK M. STEINMANN

References and Further Reading

• Clark, Sherman J., The Courage of Our Convictions, Michigan Law Review 8 (1999): 97: 2381–2447.
• Conrad, Clay. Jury Nullification the Evolution of a Doctrine. Durham: Carolina Academic Press, 1999.
• Haynie, Erick J., Populism, Free Speech, and the Rule of Law: The Fully Informed Jury Movement and its Implications, Journal of Criminal Law and Criminology 11 (1997): 1: 343–379.
• Nadler, Janice, Flouting the Law, Texas Law Review 83 (2005): 5: 1399–1441.
• Pepper, David A., Nullifying History: Modern-Day Misuse of the Right to Decide the Law, Case Western Reserve Law Review 50 (2000): 3 :599–644

See also Capital Punishment; Gregg v. Georgia, 428 U.S. 153 (1976); Jury Trials and Race