By William Hornbeck, ACLR Featured Blogger

          From October of last year until a couple of weeks ago, Metro riders who left the Judiciary Square metro station through the south entrance faced a red-and-white billboard advocating jury nullification for victimless crimes.[1] The billboard’s message and its potential impact on trials held in the state and federal courthouses in Judiciary Square bring to mind the broader academic debate over jury nullification. In a city like DC where a large number of jurors and defendants are African-Americans, the billboard also brings to mind Professor Paul Butler’s argument in favor of race-based jury nullification for victimless crimes. The billboard illustrates the likelihood that any attempts like Professor Butler’s to limit jury nullification to the African-American community will ultimately be unsuccessful.

            Professor Butler’s thesis is that African-American jurors should use a tripartite nullification framework in cases where an African-American is on trial: they should never nullify for violent malum in se crimes (e.g. rape, murder), they should have a presumption in favor of nullification for non-violent, victimless malum prohibitum crimes (e.g. drug possession), and should decide cases involving non-violent malum in se crimes (e.g. theft, perjury) with nullification as an option, but without a presumption either way.[2] Professor Butler suggests that his proposal be broadcast at “African-American cultural events,” and be the subject of “rap songs” and “ministers’ sermons.”[3] Professor Butler also suggests that advocates of his proposal could take a “more direct approach,” namely “stand[ing] outside a courthouse and distribut[ing] flyers explaining the proposal to prospective jurors.”[4]

            Unfortunately for Professor Butler, the Judiciary Square billboard did not advocate his particular proposal. The billboard made no mention of race; it simply instructed jurors to hold out if they can’t agree with the other jurors, to vote their conscience, and to ignore the judge’s instructions if they disagree with the law.[5]There is a reason the billboard does not mention race: the billboard was the work of the Fully Informed Jury Association, a non-profit formed by two white libertarians from Montana, and was paid for by a white graphics designer from Philadelphia.[6] These people have a different perspective than Professor Butler: their mission is not to fulfill the promise of Batson and Strauder but to protect society at large from the criminal laws that Professor Butler finds particularly oppressive to the black community.

            Professor Butler has two responses to the possibility that his message of racial nullification could spread beyond African-Americans, but both of his responses are insufficient. First, Professor Butler argues that other races (or at least whites) are already racially nullifying, citing a white jury’s acquittal of the officers who beat Rodney King.[7] But as Professor Randall Kennedy has noted, to react to one race’s nullification with further racial nullification could lead to a society further stratified by race, where each race sees its primary goal as promoting its race over all other races.[8] In a racial arms race, where each race acquits its own, minority jurors will be able to acquit or hang less often than majority jurors, as minorities will be less frequently represented on juries. What’s more, if jurors of all races used an explicitly racial calculus for whether to convict criminals, the law might react by regulating (to the extent permitted by the Fourteenth Amendment) the use of peremptory strikes not by the race of the juror but by the willingness of the juror to apply the judge’s instructions rather than a racial calculus like Professor Butler’s. This would represent a step backwards from the promise of Batson.

          Second, Professor Butler argues that the fact that jury nullification has been used by unsavory characters like abortion clinic bombers and militia movements does not make jury nullification a less useful or less morally just tool for African-Americans, just as whites voting for racist purposes would not make voting itself a less useful or morally just tool.[9] But to simply state as Professor Butler does that “I distinguish racially based nullification by African-Americans from recent right-wing proposals for jury nullification on the ground that the former is sometimes morally right and the latter is not” will not help his proposal spread beyond the pages of a law review.[10] In his article, Professor Butler actually does distinguish African-American nullification from white nullification by tracing the respective histories and underpinnings of each theory. There is no way to keep jury nullification a secret limited only to African-Americans: all jurors will find out about nullification, either through a billboard or through other means. In a courtroom, a juror informed of the possibility of nullification by a billboard would not be aware of the racial distinctions that Professor Butler draws, and could not construct an argument as eloquent as Professor Butler’s for limiting racial nullification to African-Americans. All a juror would know is that their duty is to nullify. A white defendant charged with murdering an abortion provider could look the same to a white anti-abortion juror as a black defendant charged with drug possession would look to a black juror: Professor Butler’s view of the relative morality of each action would not alter the reality of each action.

          Professor Butler acknowledges that his proposal could be difficult to implement: he sees his role as starting a public dialogue, not formulating a foolproof plan.[11] But it is a good thing that jury nullification has remained largely below the surface, with an occasional billboard cropping up every so often. Nullification is a powerful tool in the hands of a juror: promoting nullification (especially racial nullification) might lead to a world of even more racial competition, rather than the world of black self-empowerment that Professor Butler seeks to achieve.