Jury Nullification: True and Dangerous
He is correct that it is a dangerous doctrine. He may well be correct that we would be worse off if more people believed in it. But that does not tell us whether or note the doctrine is true. It is possible, after all, for something to be both true and dangerous. To take one obvious example, it is true that if you put together a certain mass of U235 in a certain way the result will be a very large explosion—but we might all be better off if nobody knew that it was true.
My rebuttal to his argument—which, as it happened, I did not have a chance to offer—is quite simple. Sodomy was a capital offense in England and parts of the U.S. into the second half of the 19th century. Suppose someone has been caught in the act and charged and you are offered a place on the jury. You believe that the other jurors will vote for conviction and that the defendant, if convicted, will be executed. You have three options:
1. Tell the judge that you are unwilling to decide the case according to the law, since you think the law unjust. You will be dismissed from the jury and replaced by another juror who will probably vote for conviction.
2. Agree to decide the case according to the law. Since the man is guilty, you vote for conviction and he is hanged.
3. Tell the judge (falsely) that you are willing to decide according to the law, remain on the jury, and vote for acquittal.
The first two alternatives result in the hanging of a man who has, in your view, done nothing wrong. The third is jury nullification. Which choice is morally correct?