As a nearly immediate follow-up to my earlier post today on jury nullification, let me post a link to a discussion about the topic at Patterico's Pontifications, where many smart people I otherwise agree with on many issues are decrying jury nullification as "jury misconduct". Frankly, I'm amazed that many of the same people who support the right of citizens to carry weapons feel threatened by the power of juries to judge laws as well as facts. Reading the comments, jury nullification opponents pose arguments against the power of nullification that are nearly identical to the arguments of those who want to ban guns. They don't trust the public to act as a check on the government.

Like carrying guns, jury nullification is a power that can be used for evil as well as good. That should go without saying, and yet many anti-nullification arguments seem to focus on the instances in which nullification was used to, for instance, acquit whites who lynched blacks. That's obviously a wrong use of the power. But just as guns are important to freedom despite ocassional misuse, jury nullification is also important despite the cost of occasional misuses.

The main difference between gun use and jury nullification is that someone who misuses a gun can be prosecuted and punished if guilty, whereas a juror who nullifies unjustly cannot be touched by the judicial system. Perhaps social punishment is enough to deter unjust jurors, but if that's not the case then maybe we should just pass a law that allows jurors to be prosecuted for nullification. Then, when those jurors are tried, a new jury will be empowered to judge their actions and render a verdict. The trial in which nullification was initially used would be untouchable, but jurors could be punished individually if their peers later believed that their nullification was unjust. Such a system would impose a cost on jurors for nullification and give them an incentive to use the power rarely and only when they believe that their peers will back them up.

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