License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking

Yale Law Journal

Volumn 106, Issue 8, 1997, Pages 2563-2597

  St John, Richard ^a  

^a NONE

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EID: 0042578619     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797227     Document Type: Article

References (184)

1. 156 U.S. 51 (1895).
2. See id. at 83 ("'[I]t is [the jury's] duty to be governed by the instructions of the court as to all legal questions . . . . They have the power to do otherwise, but the exercise of such power cannot be regarded as rightful . . . .'" (quoting Duffy v. People, 26 N.Y. 588, 593 (1863)) (emphasis added). Similarly, the trial judge had instructed the jury that "even in this case you have the physical power to [return a verdict for manslaughter] . . .; but . . . a jury is expected to be governed by law, and the law it should receive from the court." Id. at 62 n.1 (initial emphasis added).
3. See Phillip B. Scott, Jury Nullification: An Historical Perspective on a Modern Debate, 91 W. VA. L. REV. 389, 393 (1989) (stating that Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670), "once and for all, put to rest the practice of juror punishment for returning verdicts which judges felt were contrary to the evidence"). Prior to Bushell's Case, jurors were subjected to severe sanctions for rendering verdicts that judges found to be contrary to the evidence. See id. at 403.
4. See Phillip B. Scott, Jury Nullification: An Historical Perspective on a Modern Debate, 91 W. VA. L. REV. 389, 393 (1989) (stating that Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670), "once and for all, put to rest the practice of juror punishment for returning verdicts which judges felt were contrary to the evidence"). Prior to Bushell's Case, jurors were subjected to severe sanctions for rendering verdicts that judges found to be contrary to the evidence. See id. at 403.
5. See U.S. CONST. amend. V; see also Ashe v. Swenson, 397 U.S. 436, 445-46 (1970) ("[W]hatever else that [the double jeopardy prohibition] may embrace . . . it surely protects a man who has been acquitted from having to 'run the gauntlet' a second time.") (citations omitted).
6. See United States v. Powell, 469 U.S. 57, 67 (1984) ("Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.") (emphasis added) (citations omitted).
7. See Sparf, 156 U.S. at 102 ("[W]here the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court.").
8. See, e.g., United States v. Dougherty, 473 F.2d 1113, 1135-36 (D.C. Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969); Burke Marshall, Jurors Must Respect the Law, A.B.A. J., Mar. 1, 1986, at 36, 40; Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 512-25 (1976).
9. See, e.g., United States v. Dougherty, 473 F.2d 1113, 1135-36 (D.C. Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969); Burke Marshall, Jurors Must Respect the Law, A.B.A. J., Mar. 1, 1986, at 36, 40; Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 512-25 (1976).
10. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
11. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
12. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
13. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
14. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
15. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
16. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
17. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
18. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
19. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
20. See JEFFREY ABRAMSON, WE, THE JURY 1-3, 247-48 (1994) (advocating democratic theory of nullification); NORMAN J. FINKEL, COMMONSENSE JUSTICE 5, 336-37 (1995) (suggesting that nullification may be understood to "perfect and complete the law," as well as to reflect accurately community sentiment); JAMES P. LEVINE, JURIES AND POLITICS 188-89 (1992) (endorsing explicit authorization of jury nullification); David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 90 (1995) (arguing that jury nullification acts as part of system of "checks and balances"); David N. Dorfman & Chris K. Iijima. Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 900-01 (1995) (arguing that nullifying jury acts as "popular check on executive and judicial discretion"); Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW & CONTEMP. PROBS., Autumn 1980, at 51, 93 [hereinafter Scheflin & Van Dyke, Jury Nullification] (advocating nullification instruction as instrumental to "democratic self-rule"); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 182-83 (1991) [hereinafter Scheflin & Van Dyke, Merciful Juries] (criticizing judges who refuse to give nullification instructions as "creating the anarchy they seek to avoid"); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 842 (1990) (arguing that nullification should be "preserved and protected because it cannot be removed without stripping the defendant of . . . [her] sixth amendment right[s]"); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1191-95 (1991) (arguing that jurors should be understood to have authority to exercise "jury review," refusing to apply laws they deem unconstitutional); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995) (calling for black jurors to acquit black defendants accused of nonviolent crimes, even where jurors believe defendant legally guilty, in order to "dismantle the master's house with the master's tools"); M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REV. 1101, 1149-50 (1993) (withholding judgment on nullification's legitimacy, but suggesting revisions to proposed nullification legislation in order to "encourage jurors to promote justice").
21. See Reynolds Holding, Group Tries to Sway Jurors, S.F. CHROM., Dec. 11, 1995, at B1; Todd R. Wallack, Judges Hit "Vote Conscience" Jurors, DAYTON DAILY NEWS, Sept. 17, 1994, at 1A (describing attempts by FIJA to influence jury pools at courthouse).
22. See Reynolds Holding, Group Tries to Sway Jurors, S.F. CHROM., Dec. 11, 1995, at B1; Todd R. Wallack, Judges Hit "Vote Conscience" Jurors, DAYTON DAILY NEWS, Sept. 17, 1994, at 1A (describing attempts by FIJA to influence jury pools at courthouse).
23. See Joe Lambe, Bill Would Let Juries Decide Law in Cases, KAN. CITY STAR, Apr. 8, 1996, at A1.
24. See infra Section I.B.
25. See Sparf v. United States, 156 U.S. 51, 102 (1895).
26. Cf. Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 AM. CRIM. L. REV. 239, 253 (1993) ("[N]ullification built into the system and conceded to be reasonable and appropriate at times becomes a proper exercise of power within the law, not a nullification of the law.").
27. See Lambe, supra note 10. During the first two months of 1997, such legislation was proposed in at least three states. See H.R. 5067, 1997 Gen. Assembly, Reg. Sess. (Conn. 1997); H.R. 1494, 46th Leg., 1st Reg. Sess. (Okla. 1997); H.R. 519, 75th Leg., Reg. Sess. (Tex. 1997).
28. See Lambe, supra note 10.
29. See, e.g., Dorfman & Iijima, supra note 8, at 906-07, 907 n.243 and sources cited therein.
30. See, e.g., In re Petition for Writ of Prohibition, 539 A.2d 664, 682 n.21 (Md. 1988); Scott, supra note 3, at 390 n.6.
31. See, e.g., Creagan, supra note 8, at 1130 n.163.
32. GA. CONST. art. 1, § 1, ¶ 11. The language ratified in 1877 is nearly identical: "'[T]he jury in all criminal cases, shall be the judges of the law and the facts.'" Harris v. State, 9 S.E.2d 183, 186 (Ga. 1940) (quoting original constitutional language).
33. 64 Ga. 453 (1880).
34. See id. at 458.
35. Id. at 456, 459-60.
36. Id. at 462.
37. See id. at 470-71.
38. Id. at 471.
39. Id.
40. See id.
41. Id.
42. See, e.g., Brown v. State, 40 Ga. 689, 696-97 (1870).
43. 75 Ga. 382 (1885).
44. Id. at 385. Neither Ridenhour nor any other Georgia opinion seems to have accounted for this switch. The only clue is that the changed interpretation coincided with the end of the Civil War. Although one might hypothesize changes in court composition or state policy accompanying Reconstruction that might have led to changing attitudes towards nullification, the correlation may be nothing more than a coincidence. Courts elsewhere in the United States abandoned similar instructions during the nineteenth century. See Note, The Changing Role of the Jury in the Nineteenth Century, 74 YALE L.J. 170, 176-77, 183 (1964) (discussing abandonment in Massachusetts of similar jury instruction in mid-nineteenth century).
45. See Ridenhour, 75 Ga. at 385-86.
46. See, e.g., Harris v. State, 9 S.E.2d 183, 186-87 (Ga. 1940) (reaffirming Hill and noting that it had been consistently followed); Drummond v. State, 326 S.E.2d 787, 788-89 (Ga. Ct. App. 1985) (reaffirming rule from Harris).
47. MD. CONST. (Dec. OF RIGHTS) art. XXIII.
48. See Stevenson v. State, 423 A.2d 558, 561 (Md. 1980).
49. In re Petition for Writ of Prohibition, 539 A.2d 664, 682 (Md. 1988).
50. As Maryland's high court explained: The jury are made the judges of law as well as of fact . . . under the Constitution of this State; and any instruction given by the Court, as to the law of the crime, is but advisory, and in no manner binding upon the jury, except in regard to questions as to what shall be considered as evidence. Wheeler v. State, 42 Md. 563, 570 (1875) (emphasis omitted).
51. Beard v. State. 71 Md. 275, 280 (1889).
52. Id.
53. Id. Nor were judges required to give instructions at all; and, when given, they could be expressly advisory. See id. at 279.
54. See Franklin v. State, 12 Md. 236, 245-46 (1858).
55. See, e.g., Beard, 71 Md. at 280.
56. See, e.g., id. at 280-81.
57. See, e.g., Giles v. State, 183 A.2d 359, 364-67 (Md. 1962); Hopkins v. State, 69 A.2d 456, 459-60 (Md. 1950); Slansky v. State, 63 A.2d 599, 601-05 (Md. 1949). The provision was also challenged in federal courts. See, e.g., Wyley v. Warden, 372 F.2d 742 (4th Cir. 1967); Wilkins v. State, 402 F. Supp. 76, 82 (D. Md. 1975).
58. 373 U.S. 83 (1963).
59. Id. at 89.
60. See, e.g., Barnhard v. State, 602 A.2d 701, 706 (Md. 1992); In re Petition for Writ of Prohibition, 539 A.2d 664, 682 (Md. 1988); Stevenson v. State, 423 A.2d 558, 563 (Md. 1980).
61. See, e.g., Wyley, 372 F.2d at 745 (upholding Maryland provision on ground that it does not confer discretion that it might appear to do, citing phrase from Brady).
62. 423 A.2d 558.
63. See id. at 565-66.
64. 357 A.2d 360(Md. 1976).
65. See Wheeler v. State, 42 Md. 563 (1875); see also Schanker v. State, 116 A.2d 363 (Md. 1955).
66. See supra text accompanying note 36.
67. See MD. R. 4-325; see also Barnhard v. State, 602 A.2d 701, 707 (Md. 1992) (discussing Rule 4-325).
68. Barnhard, 602 A.2d at 707.
69. IND. CONST. an. I, § 19.
70. 9 Ind. 541 (1857).
71. Id. at 542 (emphasis added).
72. See, e.g., Cunacoff v. State, 138 N.E. 690, 691 (Ind. 1923); Schuster v State 99 N.E. 422, 424 (Ind. 1912).
73. McDonald v. State, 63 Ind. 544, 546 (1878).
74. See id. at 547.
75. Bridgewater v. State, 55 N.E. 737, 737 (Ind. 1899).
76. Id. at 739.
77. Id.
78. See Beavers v. State, 141 N.E.2d 118, 122 (Ind. 1957) ("In our opinion juries should be bound by their conscience . . . .") (emphasis added). The Indiana Supreme Court has also upheld an instruction telling jurors that "[a]s manly, upright men and woman . . . you will put aside all sympathy and sentiment and look steadfastly and alone to the law and the evidence in the case." Feggins v. State, 359 N.E.2d 517, 521 (Ind. 1977).
79. See, e.g., Beavers, 141 N.E.2d at 120, 122, 125 (upholding instruction that stated, inter alia, that "jurors may [not] . . . make and judge the law as they think it should be in any particular case"); Jennings v. State, 503 N.E.2d 906, 912 (Ind. Ct. App. 1987) (upholding instruction that jurors did not "have the right to make, repeal, disregard or ignore the law as it exists").
80. State v. Willis, 552 N.E.2d 512, 514 (Ind. Ct. App. 1990); see also McClanahan v. State, 118 N.E.2d 734, 734-35 (Ind. 1954) (refusing to overturn guilty verdict after jury foreman obtained statute book from bailiff and read from it to jury). But see Fuquay v. State, 583 N.E.2d 154, 156 (Ind. Ct. App. 1991) (upholding denial of proposed instruction telling jurors: "You have the right to independently determine the law to be different from the instruction from the Court.").
81. See, e.g., Beavers, 141 N.E.2d at 125 (stating that jury and judge have "coordinate right[s]").
82. See Martha A. Myers, Rule Departures and Making Law: Juries and Their Verdicts, 13 L. & SOC'Y REV. 781 (1979).
83. See id. at 788-90.
84. Id. at 795.
85. Id.
86. See Lambe, supra note 10.
87. H.R. 1682, 17th Leg., Reg. Sess. (La. 1991), reprinted in Creagan, supra note 8, at 1119 n.114. Similar, but by no means identical, bills before state legislatures in Arizona, Massachusetts, New York, and Tennessee during 1991 are also reprinted in Creagan, supra note 8, at 1116-20 nn.102, 105, 109 & 118.
88. See Creagan, supra note 8.
89. See id. at 1150.
90. What, New FIJA Bill Language? (visited Feb. 5, 1997) 〈http://nowscape.com/fija/_fija94.htm〉 [hereinafter New FIJA Bill Language]
91. See Creagan, supra note 8, at 1144-45. One significant part of Creagan's proposal that FIJA chose not to incorporate would have limited attorneys' nullification arguments by explicit reference to the ethical responsibility not to advance a claim that is unwarranted under existing law. See id.
92. New FIJA Bill Language, supra note 77.
93. See S. 2140, 1995-96 Leg., Reg. Sess. (Cal. 1996); H.R. 5067, 1997 Gen. Assembly, Reg. Sess. (Conn. 1997); H.R. 130, 76th Leg., Reg. Sess. (Iowa 1995); S. 287, 76th Leg., Reg. Sess. (Iowa 1995); H.R. 519, 75th Leg., Reg. Sess. (Tex. 1997); H.R. 182, 52d Leg., Reg. Sess. (Utah 1996).
94. S. 4157, 218th Leg., 1st Reg. Sess. (N.Y. 1995).
95. Proposed 1996 Fully Informed Jury Bill Language (visited Feb. 6, 1997) 〈http://www. primenet.com/∼slack/fija/bill-96.txt〉.
96. See H.R. 1494, 46th Leg., 1st Reg. Sess. (Okla. 1997) (tracking first-generation FIJA proposal); H.R. 5067, 1997 Gen. Assembly, Reg. Sess. (Conn. 1997) (tracking second-generation FIJA proposal); H.R. 519, 75th Leg., Reg. Sess. (Tex. 1997) (same).
97. See H.R. 1494, 46th Leg., 1st Reg. Sess. (Okla. 1997); see also H.R. 1031, 45th Leg., 1st Reg. Sess. (Okla. 1995) (proposing similar language).
98. It is not clear, however, that the "right" versus "power" distinction really makes a difference in terms of the effect on jury behavior. FIJA claims that it is a distinction without a difference, except that the use of the term "power" will assuage critics. See New FIJA Bill Language, supra note 77.
99. Kristen K. Sauer, Note, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COLUM. L. REV. 1232, 1249 (1995).
100. See Scheflin & Van Dyke, Jury Nullification, supra note 8, at 68.
101. See LEVINE, supra note 8, at 189.
102. ABRAMSON, supra note 8, at 2.
103. Authorized jury nullification exhibits at least three important deviations from normal legislative procedure. First, juries deliberate in secret. Second, the rules of conduct they fashion are not forward-looking. Neither of these stands to make their conduct functionally less "legislative"; both, however, may have other troubling consequences. The black box of jury deliberation is harder to police for illegal motivation than is open legislative discussion. The nullifying jury's backward-looking temporal orientation may give rise to ex post facto concerns just as for a legislature. A third difference - that a jury only fashions the legal rules in a given case (rather than making rules of general applicability) - may be important when evaluating unauthorized nullification. But when legislatures validate the nullification prerogative, they give to juries in the aggregate the power to fashion rules of conduct, which though variable from jury to jury, will be binding on defendants as a class.
104. Failure to represent the community poses a problem for the proponents of jury democracy, because they necessarily appeal to an ideal of direct democracy. Of course, parallel objections might be raised against legislative bodies, either because their membership does not reflect the makeup of the community or because certain groups in the citizenry disproportionately failed to cast votes. But it is hard to know what to make of this argument, for unlike direct democracy, representative democracy allows no simple evaluation of the correlation between characteristics of citizens and lawmakers.
105. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (interpreting Sixth Amendment to include "fair-cross-section" requirement, which is violated, inter alia, when "the jury pool is made up of only special segments of the populace").
106. See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that prosecutor's use of race-based peremptory challenges violates Equal Protection Clause of Fourteenth Amendment); see also Georgia v. McCollum, 505 U.S. 42 (1992) (extending Batson analysis to use of race-based peremptory challenges by criminal defendant); cf. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994) (invalidating gender-based peremptory challenges by civil litigant); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (invalidating race-based peremptory challenges by civil litigant).
107. See, e.g., Hiroshi Fukurai, Race, Social Class, and Jury Participation: New Dimensions for Evaluating Discrimination in Jury Service and Jury Selection, 24 J. CRIM. JUST. 71 (1996) (finding that in Orange County, California, both minorities and poor are underrepresented on juries).
108. See, e.g., The Jury Is Still Out on the Motivations for Using Trial Consultants, CORP. LEGAL TIMES, Jan. 1996, at 1 ("'We can no longer have all women or all men on our juries, or certain races or ethnic backgrounds. That's where a trial consultant can help. We base our selections on individual characteristics and not on a wide range of stereotypes.'") (quoting jury selection expert).
109. In some instances, jury demographics may be expected to inform a jury's decisionmaking, and this is doubtless the calculus used by litigants who would seek to strike certain jurors based on such identifiable demographic characteristics.
110. See, e.g., Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169, 1178-83 (1995).
111. See Douglas Gary Lichtman, The Deliberative Lottery: A Thought Experiment in Jury Reform, 34 AM. CRIM. L. REV. 133, 136 (1997). Under Lichtman's intricate proposal, cases would be heard and deliberated by 24 jurors, of whom only 12, selected at random, would actually cast votes. See id.
112. Although the Supreme Court has held that the traditional requirement of jury unanimity is not constitutionally mandated, see Johnson v. Louisiana, 406 U.S. 356 (1972), all but two states, Oregon and Louisiana, require criminal jury verdicts (for offenses more serious than simple misdemeanors) to be unanimous, see Lichtman, supra note 98, at 138 n.24. In jurisdictions requiring unanimity, failure by the jury to reach unanimity results in a "hung jury"; such cases may then be retried without violating the double jeopardy prohibition. See Richardson v. United States, 468 U.S. 317 (1984).
113. For purposes of this illustration, I presume Flat-Earthers and Round-Earthers to be members of opinion groups, rather than demographic groups. In the real world, of course, people do not come neatly prepackaged in such opinion groups. Otherwise, a law could be passed requiring each jury to be made of exactly the right proportion of each opinion group in the community. It may be profitable, then, to think of these groups as made up of people who share an opinion as to the particular issue relevant to the case at hand. In other words, while Round-Earthers may disagree among themselves as to a variety of issues, they happen to all agree about the roundness of the Earth - an issue that for purposes of this hypothetical is presumed to bear on the case before this jury.
114. See, e.g., Robert T. Roper, Jury Size and Verdict Consistency, 14 L. & Soc'Y REV. 977, 988-89 (1980) (concluding that critical mass of two or more jurors is generally necessary before initially dissenting jurors can withstand pressure to conform).
115. Cf. Jeffrey Rosen, One Angry Woman: Why Are Hung Juries on the Rise?, NEW YORKER, Feb. 24/Mar. 3, 1997, at 54 (presenting juror interviews documenting holdout behavior in District of Columbia).
116. Even under majority voting, a small faction might be able to overstate its influence. Thus, in legislative assemblies a "center" group may hold out and force compromise by one of two larger groups with more polarized views. The jury's unanimity rule has a more dramatic effect because even a single dissenting juror may hold out against eleven fellow jurors. In bodies operating by majority rule, by contrast. a small minority only gains inordinate power when other members are fractured into sub-majority blocs. Undoubtedly, rule according to universal consensus would have a stronger claim to democratic legitimacy than would rule by a bare majority. See Richard A. Primus, When Democracy Is Not Self-Government: Toward a Defense of the Unanimity Rule for Criminal Juries, 18 CARDOZO L. REV. 401 (1997). The unanimity rule might be lauded for giving jurors an incentive to deliberate and an opportunity to forge consensus. Although the rule may have a legitimate role in shaping such consensus, it cannot act as a democratically legitimate decision rule. Unanimity is preferable to majority rule, but majority rule is preferable to minority rule.
117. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4. (1938).
118. See JOHN HART ELY, DEMOCRACY AND DISTRUST 135-79 (1980).
119. Carolene Products, 304 U.S. at 153 n.4.
120. See Dorfman & Iijima, supra note 8, at 901 ("As a popular check on executive and judicial discretion, the nullification instruction would inject more democracy into the justice system.").
121. Brody, supra note 8, at 90-91.
122. See, e.g., Butler, supra note 8, at 700 ("Jury nullification occurs when a jury acquits a defendant who it believes is guilty of the crime with which he is charged."); Creagan, supra note 8, at 1114.
123. See supra text accompanying notes 73-83.
124. My argument here is not that there is perfect symmetry between the jury's ability to render nullification convictions and nullification acquittals. After all, as we saw in the previous Section, deadlocked juries result in at least a temporary victory for the defendant. This result derives not from the construction of the jury, but from the criminal law's baseline of "innocent until proven guilty." My argument in this Section is merely that nullification convictions are indeed realistically possible and in fact have been observed in experiments where jurors are informed of a nullification right See infra notes 112-16.
125. See Irwin A. Horowitz, Jury Nullification: The Impact of Judicial Instructions, Arguments, and Challenges on Jury Decision Making, 12 LAW & HUM. BEHAV. 439, 444 (1988).
126. See id. at 439.
127. For a discussion of Myers's research, see supra text accompanying notes 69-72.
128. For a discussion of Indiana's jury instructions, see supra notes 62-68 and accompanying text.
129. See Myers, supra note 69, at 795.
130. 64 Ga. 453 (1880). For a discussion of this case, see supra notes 20-28 and accompanying text.
131. See Slansky v. State, 63 A.2d 599 (Md. 1949).
132. Brody, supra note 8, at 117 (citation omitted).
133. FED. R. CRIM. P. 29.
134. See Brody, supra note 8, at 117 n.200.
135. United States v. Klein, 910 F.2d 1533, 1538 (7th Cir. 1990). The Supreme Court has articulated a similar standard for sufficiency-of-the-evidence review: whether an assessment at trial "could support any rational determination of guilt beyond a reasonable doubt." United States v. Powell, 469 U.S. 57, 67 (1984) (emphasis added) (citations omitted); see also Athanasios Basdekis, Book Note, Perfection by Nullification, 105 YALE L.J. 2285, 2290 (1996) (reviewing FINKEL, supra note 8) (noting that narrow focus of appellate review renders this safeguard "grossly insufficient" to protect against nullification convictions).
136. See Brody, supra note 8, at 121 (recommending instruction that would authorize nullification only where "finding the defendant guilty is repugnant to your sense of justice"); Scheflin & Van Dyke, Merciful Juries, supra note 8, at 178 (criticizing proposed legislation on grounds that it would appear to authorize not only nullification acquittals, but nullification convictions as well).
137. See, e.g., 18 U.S.C. § 242 (1994).
138. See Marshall, supra note 7, at 38; see also SEYMOUR WISHMAN, ANATOMY OF A JURY 206 (1986) (describing discriminatory jury behavior in South after Civil War).
139. Marshall, supra note 7, at 38.
140. The minoritarian nature of jury decisionmaking, discussed earlier, casts some doubt on the proposition that jury mercy would tend to be used in ways that society as a whole would consider desirable. See supra notes 102-03 and accompanying text.
141. See, e.g., Dorfman & Iijima, supra note 8, at 900-02.
142. See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543, 552-54 (1960).
143. See, e.g., United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) ("The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters . . . wholly apart from any question of probable cause.").
144. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (ordering convicts released from custody after concluding that they had been prosecuted under racially selective enforcement scheme); see also Wayte v. United States, 470 U.S. 598, 608 (1985) ("[T]he decision to prosecute may not be 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,' including the exercise of protected statutory and constitutional rights.") (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)) (citation omitted).
145. See Goldstein, supra note 129, at 580-81, 588-89 (proposing "Policy Appraisal and Review Board" which would, inter alia, review cases of alleged police harassment and generally publicize information and policy recommendations).
146. See Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851 (1995).
147. See supra text accompanying notes 112-13.
148. See Horowitz, supra note 112, at 452.
149. See id. at 446.
150. For more on the legal similarities and differences between jury and agency delegations, see infra Subsection III.A.1.
151. Legislatures may be just as structurally flawed as the nullificationists argue. However, it seems unlikely that the best reform measure imaginable would combine nonrepresentativeness, minoritarian decisionmaking, and wildly unpredictable legal responses to commonly recurring phenomena.
152. See supra Section I.B.
153. See 1 KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 2.6, at 71 (3d ed. 1994) (citing Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)).
154. For more on the nondelegation doctrine in the states, see infra notes 162-63 and accompanying text. Because the states tend to track the federal standard, and because of the impracticality of attempting to track the nuances of the standard as applied in each of the 50 states, the remainder of the discussion will focus on the application of federal, rather than state, nondelegation principles.
155. See Crowell v. Benson, 285 U.S. 22, 54-65 (1932) (setting forth doctrine that Article III judges should have power to review de novo facts found by administrative agencies, where those facts are necessary to decide jurisdictional or constitutional issues); see also Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 82 & n.34 (1982) (quoting Crowell with approval and noting that while Crowell's precise holding had been eroded, "general principle of Crowell . . . remains valid").
156. See 5 U.S.C. §§ 701-06 (1994) (providing for judicial review of certain agency actions).
157. See supra text accompanying notes 53-55.
158. 462 U.S. 919 (1983).
159. See id. at 942 n.13.
160. It may be that the jury "veto" would pass constitutional muster under Chadha. At least one dissenter believed that the majority's holding only limited vetoes exercised by one or both Houses of Congress - but not those granted by Congress to executive or legislative agencies. See id. at 989 (White, J., dissenting). However, as the majority recognized, even where such authorized vetoes do not impermissibly effect legislative vetoes, they must still be evaluated under the nondelegation doctrine. See id. at 953 n.16.
161. See Touby v. United States, 500 U.S. 160 (1991) (upholding delegation of authority to Attorney General to add new drugs to schedule of banned drugs); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-66 (1984) (upholding delegation to EPA of power to define regulations, on ground that executive agencies are politically accountable through President).
162. See Mistretta v. United States, 488 U.S. 361 (1989).
163. See id. at 368. Additionally, no more than four Commissioners could be drawn from the same political party. See id.
164. See id. (noting that Commission members could be removed by President "'only for neglect of duty or malfeasance in office or for other good cause shown'") (quoting 28 U.S.C. § 991 (a) (1989)).
165. Id. at 379. The "intelligible principle" test is drawn from J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
166. See Chevron, 467 U.S. at 865-66.
167. 124 Eng. Rep. 1006 (C.P. 1670).
168. For more on this principle, see supra note 3 and accompanying text; and infra Part IV.
169. Mistrena, 488 U.S. at 373 n.7.
170. U.S. CONST. art. I, § 1.
171. Id. an. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government . . . .").
172. See. e.g., Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937); Pacific States Tel. Co. v. Oregon, 223 U.S. 118, 133, 142-51 (1912); Luther v. Borden, 48 U.S. (7 How.) 1, 42-45 (1849).
173. See Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable, 65 U. COLO. L. REV. 849 (1994).
174. See New York v. United States, 505 U.S. 144, 185 (1992) (noting that controversy existed over justiciability of Guarantee Clause, but declining to address merits of this issue).
175. See, e.g., Hans A. Linde, Who Is Responsible for Republican Government?, 65 U. COLO. L. REV. 709 (1994) (discussing state court justiciability of Guarantee Clause in context of initiatives); see also In re Initiative Petition No. 348, 820 P.2d 772, 779-81 (Okla. 1992) (noting state court justiciability of Guarantee Clause, and proceeding to analyze merits of Guarantee Clause claim at issue).
176. See, e.g., Gary J. Greco, Standards or Safeguards: A Survey of Delegation Doctrine in the States, 8 ADMIN L.J. AM. U. 567, 567 (1994) ("In many respects, . . . the delegation doctrine in the states reflects the history of the delegation doctrine in the federal government.").
177. See, e.g., Willis v. Aiken, 8 F.3d 556 (7th Cir. 1993); Wyley v. Warden, 372 F.2d 742 (4th Cir. 1967).
178. U.S. CONST. amend. XIV, § 1.
179. Id. art. 1, § 10, cl. 1.
180. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (striking down vague city ordinance, both because it failed to provide adequate notice and because it encouraged arbitrary and discriminatory arrests and convictions).
181. Cf. United States v. Dougherty, 473 F.2d 1113, 1136 (D.C. Cir. 1972) (stating that to tell juror of nullification right is to inform juror that "it is he who fashions the rule that condemns").
182. 124 Eng. Rep. 1006 (C.P. 1670); see supra note 3 and accompanying text (discussing role this principle plays in facilitating jury nullification).
183. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 285 (Vintage ed. 1945) (1835). Tocqueville goes on to write: "I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them." Id.
184. The word "verdict" derives from a combination of the Latin roots for "truth" and "speak." See 19 OXFORD ENGLISH DICTIONARY 532 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989).