Civil Liberties

Taking Jury Nullification a Step Further

Changing prosecutors' incentives


The New Hampshire House of Representatives recently approved a bill requiring judges to tell juries they have a right not to convict a defendant if they feel that would be unjust, even if they think he's guilty. Writing in the Washington Post today, Glenn Reynolds calls for taking the idea a step further:

Stop: Hammer time!
E.P. Dutton

The New Hampshire legislation is good, but in my opinion it doesn't go far enough. Juries should be empowered to punish the prosecution when they feel the prosecution is abusive or malicious….

I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust—and, if that happens, let the defendants' attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding—in which case the defendants' costs should come out of the prosecutor's budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I'm not sure we need to go that far.)

Read the rest here. For more from Reynolds on reining in abusive prosecutions, go here.