PERSPECTIVE ON JUSTICE : Why Some Juries Judge the System : So long as color makes a difference in arrest and sentencing, black jurors often will take refuge in ‘reasonable doubt.’
In every criminal jury trial, jurors are given a routine instruction before they begin deliberations: “In your deliberations do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict.”
This is becoming an increasingly difficult instruction for many jurors to follow. How can a juror ignore the fact that conviction of a rather pedestrian gun possession charge may send the defendant to prison for life because it’s a “third strike”? How can a juror forget that a young African American charged with possessing five grams of crack will be automatically sentenced to five years in prison because Congress overreacted to media hype 10 years ago and lacks the political courage to admit a mistake?
The traditional reason for instructing jurors to ignore punishment is that sentencing is a judicial function, calling for the exercise of judicial discretion. In a system where judicial discretion has been obliterated and draconian punishments are mandated regardless of extenuating circumstances, it becomes harder for jurors to ignore those circumstances. A juror might feel that if no one else in the system is going to exercise sensible discretion, why shouldn’t he or she assume that responsibility.
The label some put on this phenomenon is “jury nullification.” A juror’s decision to acquit because the punishment is too harsh is an act of defiance of the law. Paul Butler, an African American law professor at George Washington University writing in the Yale Law Journal, openly advocates “nullification” by black jurors in drug cases. He sees it as morally justifiable “emancipation.” With one out of three African American young men in prison or on parole, his description of America as a “police state” for African Americans is not far off the mark. Jury nullification, he argues, is the only remedy left for African Americans to free themselves from the tyranny of the majority.
While Butler’s argument will resonate strongly with many, it is not likely to lead to open defiance of the law by jurors. Those who are repulsed by the sledgehammer they are asked to wield will more likely take refuge in the haven of “reasonable doubt.” The startling differences in acquittal rates in urban areas where minorities form a majority on most juries suggests that the standard of “reasonable doubt” is applied more flexibly. The national acquittal rate is 17%. In the Bronx, the acquittal rate is 47.6% for black defendants. In Washington, the overall acquittal rate is 28.7%; in Detroit, it is 30%.
This is not to suggest that minority jurors are consciously deciding to release obviously guilty defendants because they regard the punishment as too harsh. They may be far more willing than white jurors, however, to give the benefit of doubts about the weight and credibility of the evidence to the defendant, knowing what truly is at stake when it comes time for sentencing.
This phenomenon is being widely portrayed as a problem with the institution of the jury trial itself. The easiest way to “fix” the problem is to disenfranchise minority jurors by abolishing the requirement of unanimity. That way, at least, it would take at least three such jurors before the achievement of “justice” could be frustrated.
That’s really not addressing the problem. The jury is the most democratic institution we have left in America, where real power is placed directly in the hands of ordinary people. When growing numbers of jurors deeply distrust the system that they are given the power to control, their exercise of power will reflect that distrust. Our real problem is that racial minorities and whites have very different perceptions of the criminal justice system. A recent Gallup poll found 66% of blacks believe that the system is racist, compared with 37% of whites. Disenfranchising minority jurors would only increase the perception that the system is racist.
If statistics are the most accurate measure, blacks are resoundingly right about the criminal justice system. Study after study verifies that color makes a difference at every stage of a criminal case. Whites do better at getting charges dropped or reduced to lesser offenses. They draw more lenient sentences for the same crimes and go to prison less often.
Yet, when statistics such as these are responsibly presented to the appropriate forums and corrective measures are sought, those in power prefer to walk away. The Supreme Court walked away in 1987, turning a blind eye to overwhelming evidence of racial bias in the administration of the death penalty. Congress walked away in 1995, ignoring its own Sentencing Commission’s recommendation that disparity in sentencing of black defendants for “crack” and white defendants for powdered cocaine be abolished.
It is certainly a profound disappointment to most Americans that we have come so far and still have such a long way to go in addressing the problems of racism. But walking away from it simply lets the problem seep into and corrupt the last real bastion of democracy, the jury. Whether it manifests itself as outright jury nullification or a more lenient standard of reasonable doubt, the message is the same. Jurors who are concerned with inequities of criminal punishment in laws such as “three strikes” or the federal “crack” prohibition won’t just walk away, regardless of how the judge instructs them.