State legislators in New Hampshire are considering a law that would have judges in all criminal cases instruct juries on their right of "nullification"—that is, the jury's right to ignore the law. Is this really wise?

Jury nullification is one of those things, like filibusters and political action committees, that people tend to support only insofar as they benefit the side that we agree with. When they are used by the other side, they instantly become outrages against democracy and fairness. American law pretty much lets juries decide cases however they want; but it has long been verboten to actually tell juries explicitly that they can find someone innocent just because they don't agree with the law that that person has broken. (People have even been arrested for standing on courthouse steps handing out leaflets about nullification, though that seems a bit extreme.) From the Wall Street Journal:

Nullification is an "extremely dangerous notion," said Scott Burns, executive director of the National District Attorneys Association. "We're a nation of laws, and collectively we decide that criminal acts have certain consequences. To function as a society, to have order, requires that we follow the law."

The U.S. Supreme Court has held that the Constitution largely bars the government from appealing a jury's decision to acquit someone charged with crimes, regardless of the jury's rationale. That rule, which forms the basis for nullification, essentially leaves juries free to render a "not guilty" verdict for just about any reason, including if they disagree with the underlying law.

Jury nullification seems like a great idea when you imagine using it to free, say, low-level drug offenders who face long mandatory sentences that are fundamentally unjust. It seems like a terrible idea when you imagine racist southern white juries using it to railroad a black defendant just because they don't like his looks. The notion that twelve randomly selected citizens are the most effective backbone of a fair justice system is already a bizarre one; to give them explicit instructions to ignore the law if they so choose seems like a dangerous step towards a legal system in which slick rhetoric, outward appearance, and expensive lawyers are more important than the actual law. Uh... even more so than now.

If you're a consequentialist, it might be fair to support jury nullification under the assumption that striking a blow against the War on Drugs will do a great deal of good. But the long term consequences of this policy are impossible to know.

America has many laws that suck. But we also have a system in place to change them. Are you willing to give yourself the power to ignore the law, at the cost of giving your most repulsive idiot neighbors their own power to ignore the law?

I encourage any actual legal experts to weigh in on this issue in the discussion section below.

[Photo: AP]