C. J.

Ray

P. 657
A Proposal for Racially Based Jury Nullification

Nullification- occurs when a jury in a criminal case acquits a defendant despite the
weight of evidence against him or her.

1. Jurors should consider strictly based on evidence.

a. 2 examples to contrast
i. A jury might acquit when a poor woman steals from tiffany’s
ii. Might convict if the same woman steals from her next-door
neighbor.

2. In cases where the violation is victimless such as narcotics, there should be a

presumption in favor of nullification.
a. (question to ask, how is a narcotics violation victimless?)

3. If this proposal for nullification is implemented, less black people will go to

prison.
a. The proposal would still punish violent offenses and certain others, which
preserves any protection against harmful conduct that the law may offer.
b. Some violent offenders already receive the benefit of jury nullification.
c. Under this proposal violent lawbreakers would go to prison.

4. The proposal adopts a utilitarian justification for punishment: deterrence and

isolation.
a. The proposal assumes regardless of reasons for their antisocial conduct,
people who are violent should be separated from the community for the
sake of the nonviolent.
b. May discourage future offenses and offenders.
c. Would not lead black jurors to release violent criminals simply because of
race.

5. The proposal distances itself from the “just deserts” theory in 2 ways.
a. The proposal will not excuse all antisocial conduct, it will not punish such
conduct on the premise that the intent to engage in it is “evil.”
i. Antisocial conduct is no more evil than the conditions that cause it.
ii. We must reject the idea of punishment for retribution sake.

b. as long as a person will not hurt a community, the community needs him
there to help.
i. It will encourage education, and provide health care.
ii. Self help outside of the court room.

6. What is Whites start Nullifying too?

 a. White people already do this
i. Example the Rodeny King case and the police officers.

7. Anarchy
a. Black jurors already are nullifying on the basis of race.
b. Murder should never be excused.
c. By making people aware of the framework jurors would be analyzing in
terms of what is appropriate.
i. This could be distributed through a variety of different channels.
ii. At that point jurors could have the formula for what justice means,
rather than having to decide it on an ad hoc basis. (then what is
law, where does it come from, what a jury’s formula is, is that the
law?)

Racial Realism
1. Black Americans by no means are equal to whites. Racial
equality is, in fact not a realistic goal.
2. Black people need reform of our civil rights strategies as
badly as those in the law needed a new way to consider American jurisprudence
prior to the advent of legal realists (legal realism: all law is made by human
beings and, thus, is subject to human foibles, frailties and imperfections.)
3. Black must focus in a more narrower area, to challenge the
principle of racial equality.
a. This is called Racial Realism

4. All of the many black people we sought to lift through law

for equal opportunity, had become more deeply mired in poverty, and despair that
they were during the “separate but equal” era.
a. Contemporary color barriers are less visible but
neither less real or less oppressive

5. Today blacks are experiencing rejection for a job, home, a

promotion etc.
6. Today our traditional civil rights are founded on a
constitution that is said to guarantee equal rights.
a. Bakke case (injunction for affirmative action in
college acceptance)
i. This shows that equal rights can keep blacks
out.

7. The formalist says that the existing power is legitimate and

must go unchallenged.
a. The legal rights of black will never be vindicated.
b. The constitution was formed by people who wanted
to protect property, this includes enslaved Africans.
 c. We must concede that commitment to racial
equality merely perpetuates black disempowerment. We must come up
with a mechanism to make life bearable in a society where blacks are a
permanent subordinate class.

8. Racial Realism (the doctrine that universals have a real objective existence.)
a. The ideal is that law, through racial equality can lift them (blacks) out of
this trap.
b. We should abandon this ideal and move on to a fresh realistic approach
c. Casting off the burden of equality will life the sights, providing a bird’s
eye view of situations that are distorted by race.
d. This will lead to policy considerations and campaigns that are less likely
to remind those in power that there are imaginative, unabashed risktakers
who refuse to be trampled on.
e. The racial realism that we must seek is simply a hard-eyed view of racism
as it is and our subordinate role in it.
f. The struggle for freedom is, at bottom, a manifestation of our humanity
that survives and grows stronger through resistance to oppression, even if
that oppression is never overcome.