There’s a an op-ed in the Washington Post from Professor Glenn Reynolds this week which will surely have a few heads exploding in either the legal community or among law enforcement. (Perhaps both) The title of the piece is rather forcefully put… Prosecutors have too much power. Juries should rein them in. If you have any interest in the criminal justice system at all it’s definitely worth a look.

This comes at perhaps an opportune time, arriving only a day after we discussed the question of biased jurors poisoning the well and what, if anything, can or should be done about it. I argued then that juries are rarely perfect and can frequently enrage the public, the prosecutor or the defense, but that’s pretty much by design. We weren’t supposed to have our fate decided by a panel of experts, but rather by a jury of our peers, no matter how flawed, ignorant or biased they might be. If they survive voir dire, they become a keystone of our constitutional system… for better or worse.

But they do operate under a set of rules of the road, explained to them in detail before they begin their task. They are free to make whatever decision they feel is just, but just how free should they be beyond that? According to Instapundit, quite a bit. In fact, he’s arguing in favor of jury nullification and more, which he contrasts with the far more “respectable” process of prosecutorial discretion.

So-called jury nullification, on the other hand, gets far less respect. Though it is clearly within the power of juries to refuse to convict whenever they choose, judges and prosecutors tend to view this practice with hostility. They may not be able to stop juries from exercising their power, but they do their best to keep people from telling them that they have this option: Periodically, we see stories of people prosecuted for handing out jury nullification leaflets outside courthouses. Prosecutors in the District have even complained about billboards telling potential jurors about jury nullification. That may change, however, with New Hampshire’s new legislation requiring that juries be informed by the court that they may refuse to convict if they feel a conviction would yield an “unjust result.” 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’m obviously behind on my reading because I hadn’t even heard of this New Hampshire law, but allow me to start right off by saying that I find this prospect terrifying. There was a time when I felt differently, but with a bit more water under the bridge I find a law like this to be the beginning of a dark and dangerous path for the American justice system. I’m aware that jury nullification happens at times and there’s virtually nothing that can be done about it. (Or should be done, depending whose side you are on in the case.) But once you let the genie out of this particular bottle I can see it immediately going off the rails entirely.

I’m aware that we have cases of what are known as crimes of passion even today. This concept has occasionally been applied to cases as serious as murder, with the iconic example being the spouse who comes home to find their partner in bed with someone else and kills them in a fit of rage. But that’s also an example of what some might term justifiable temporary insanity. It’s still very sketchy law, however. It seems to me that there’s a very fine line between “He/She couldn’t help themselves” and “some people just need killing.”

To put it in less extreme and more human terms, imagine a situation where a woman discovers that her boyfriend has been cheating on her with her best friend and winds up going to his apartment and setting his car on fire. Arson is a pretty serious crime, even if nobody is killed or injured. But in this brave new world that Reynolds describes, one can easily imagine a jury going through the following thought process:

Well, the evidence is clear. She bought the gasoline container the same day at Walmart, filled it up and the Stop and Go a half hour later and we’ve got her on security camera footage dousing the Ford Ranger down and tossing in a match. All in favor of finding… wait a minute! He cheated on her? Hey, I’d torch the guy’s truck too. Not guilty!

To be fair, I can think of many examples where I would personally want to let someone off even though they clearly broke the law. I’m guessing we all could. And perhaps, again, it can and should happen from time to time. But I think I’d still want the jury to approach such a decision with trepidation in their hearts, knowing that they were doing something wrong and violating the system of justice they were impaneled to protect only as an absolute last resort because they found the alternative morally indefensible. Handing out information such as this to jurors just sounds to me like the average layman could easily translate it in their mind to a permission slip to substitute their own judgement for the laws established by the entire society. And once you hand somebody that set of keys you shouldn’t act surprised if they immediately take it out for a spin.