African-Americans live in a world where the police can murder us and get away with it. Walter Scott proved that, for anybody who still had a lingering doubt. There is no justice for black people. And yet violently revolting against the system will get us nowhere.

Maybe it’s time for black people to use the same tool white people have been using to defy a system they do not consent to: jury nullification. White juries regularly refuse to convict or indict cops for murder. White juries refuse to convict vigilantes who murder black children. White juries refuse to convict other white people for property crimes. White juries act like the law is just a guideline and their personal morality (or lack thereof) should be controlling.

Maybe it’s time minorities got in the game?

Black people lucky enough to get on a jury could use that power to acquit any person charged with a crime against white men and white male institutions. It’s not about the race of the defendant, but if the alleged victim is a white guy, or his bank, or his position, or his authority: we could acquit. Assault? Acquit. Burglary? Acquit. Insider trading? Acquit.

Murder? … what the hell do you think is happening to black people out here? What the hell do you think we’re complaining about when your cops shoot us or choke us? Acquit. Don’t throw “murder” at me like it’s some kind of moral fault line where the risk of letting one go is too great. Black people ARE BEING MURDERED, and the system isn’t doing a damn thing to hold their killers accountable. Sorry I’m not sorry if this protest idea would put the shoe on the other foot for a change.

The most well-known recent proponent of black jury nullification is probably Georgetown University Law Professor Paul Butler. He’s written about jury nullification for defendants in drug cases. From an op-ed he wrote in the Washington Post:

Like a lot of African Americans, I am sick and tired of being sick and tired. I encourage any juror who thinks the police or prosecutors have crossed the line in a particular case to refuse to convict… Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that black lives matter. If they think that the police are treating African Americans unfairly — by engaging in racial profiling or using excessive force — they don’t have to convict, even if think the defendant is guilty.

You’ll note that Butler’s focus is with the defendant. If you think the defendant is being charged under an unfair law, or a law that is being applied unfairly, you should nullify that law by acquitting the defendant.

My issue is with the purported “victim.” Minorities are victims of police brutality in this country, and there aren’t enough white citizens willing to do a damn thing. I no longer see why minorities should be expected to help white victims achieve the justice they so regularly deny people of color.

There’s precedent for my view. Butler also notes that there is a richer and higher moral use of jury nullification. Here’s an interview he did with NPR:

It has a proud tradition, you know, slavery used to be legal. Jurors in the north, when slaves would be prosecuted for escaping or people who helped slaves escape were prosecuted — Northern jurors would say not guilty, even though technically those folks were guilty.

This is something that intellectual black people with legal training talk about. Honestly, what the hell do you expect us to do? How do white people think we’re supposed to react when we watch cops murder us and get away with it, over and over and over again? We’re just supposed to take it? Wait for America to produce nicer white people? The options for black America in the face of this state-sponsored injustice seem pretty limited.

Jury nullification at least has the benefit of being non-violent. Understand, when cops — when the armed forces of the state — can shoot me for no reason and get away with it, I am no longer living in a civil society. I’m living in the state of nature, and I have a natural right to defend myself by any means necessary. But I’m not here advocating a violent response to systematic injustice (because we’d lose). Violence has a tendency to be indiscriminate, anyway. Instead, jury nullification is more of a surgical strike on an illegitimate justice system that has failed us. And it can be accomplished without the protection of the Second Amendment (which is denied to black people anyway).

And white allies can join in too, if they feel so compelled. As we’ve learned, it only takes one person out of 12 to neuter the justice system. One person out of 12 who recognizes that the system itself is on trial, every trial, and it is guilty. White people have rendered this country INCAPABLE of holding police officers accountable. There might be some white allies who are ready to do more than post frowny emojis on Facebook.

There are a lot of protest ideas floating around. But jury nullification would get white people’s attention. Remember how pissed-off white people were about O.J.? And that was just one dude. White people would notice if black jurors simply refused to play along.

We can bitch and we can march and we can refuse to stay in Trump hotels. But until the system stops giving white people something they want — the orderly procession of justice — then they will not be motivated to change the system. I WANT CHAOS IN THE PROSECUTOR’S OFFICE. And you can’t accomplish that with a bomb or a gun.

But you can with an acquittal. Lots of acquittals. All the acquittals. There are counties in this country where the justice system would grind to a halt if prosecutors couldn’t find black and brown people willing to convict or indict. NOBODY CARES if they can’t get an indictment against a police officer whose only crime was the murder of an African-American. But let’s see how Preet Bharara likes it when he can’t get an indictment for political corruption (defendant accused of taking advantage of the system? Acquit.). Let’s see what happens in Brooklyn when they can’t evict anybody ever again (refusing to pay rent to a white man? Acquit.). Let’s see what happens in Hollywood when you can’t bring a case against pirates (stealing the white man’s movies? Acquit.).

Yes, this is roughly Al Pacino’s plan in The Devil’s Advocate:

Kevin Lomax: Why the law? Cut the shit, Dad! Why lawyers? Why the law? John Milton: Because the law, my boy, puts us into everything. It’s the ultimate backstage pass; it’s the new priesthood, baby. Did you know there are more students in law school than there are lawyers walking the Earth? We’re coming out, guns blazing! The two of you, all of us, acquittal after acquittal after acquittal… until the stench of it reaches so high and far into heaven, it chokes the whole fucking lot of them.

The stench of it will choke the system until it is willing to change.

This is a protest that could make a difference. This would hit the justice system where it hurts. Even putting aside how race-based jury nullification would affect the federal system, let’s just look at how this would affect one state, one city, where there are more than enough minorities where they couldn’t exclude us from juries, even if they wanted to.

There were a million cases calendared in the five boroughs of New York City, according to the 2015 Annual Criminal Court Report. Some 315,000 of them went to a final disposition with 146,201 resulting in a guilty plea. There were about 500 “trials,” resulting in 233 acquittals and 243 convictions.

Not every trial featured a jury, and not every conviction featured a white male victim or a crime against “the man.” This is important. I see limited protest value, for instance, in letting rapists go free — it’s hard enough for women to get these assholes in court in the first place.

But can you imagine a world where a prosecutor could get a conviction on, say, a hate crime, but couldn’t get a conviction against a guy accused of stealing a white man’s Mercedes? White people aren’t willing to indict a cop for choking a black man to death in broad daylight. Imagine if black people weren’t willing to indict a citizen for punching a white guy in the mouth?

White people would lose their s**t, that’s what would happen. Suddenly, the New York Times would pull reporters off the “understanding Trump voters” beat and you’d start seeing stories like “Hmm… It Appears Negros Have Some Grievances Too.”

And that’s just the start of it. You start flipping some of those 243 convictions, and the walls start crumbling around the 146,201 cases where defendants plead out. THAT’S how you gum up this system. So many of those plea deals are from people who just can’t risk a trial where they know that the jury will be stacked against them. But what if they knew there was a chance, a good chance, that a minority on the jury would just refuse to convict?

That’s how cops roll. You have to think about it, why didn’t a cop like Michael Slager take a plea deal? They had him ON VIDEO shooting a man in the back five times. He didn’t plea because he knew he just needed one racist white guy on his jury. You give some of those 146,201 defense attorneys the same “hope,” and the courts grind to a halt.

You change the math, you change the game.

For the price of, what, 50 – 100 extra “guilty” people walking free (in all of NEW YORK CITY), you could change the calculus around the dispensation of justice in New York City. Without a new law. Without an act of Congress. Without approval from The President In The High Castle.

White juries are using jury nullification to protect cops. But the door swings both ways. It’s time for us to push back. Civil disobedience, when used in a targeted fashion, is a powerful force.

Jurors need to take the law into their own hands [Washington Post]

Jury Nullification: Acquitting Based On Principle [NPR]

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.