Jury Nullification: Our Secret Weapon

A couple weeks ago there was a small victory for proponents of jury nullification, as a judge dismissed an indictment against a man accused of jury tampering for passing out pamphlets about jury nullification in front of a courthouse. This was only the second time I’d even heard about the subject, and as I learned more about it I thought I should do my part to draw more attention to it. I’m not an expert, but I want to share what I’ve learned.

Jury nullification is an important tool that has been used by everyday American citizens against an unjust government for hundreds of years. It’s a tool we still have today, though efforts have been made to hide its existence, and we may need it now more than ever. The good news is it can’t be taken away; we just have to know how to use it when the opportunity arises.

So what is jury nullification, anyway? Jury nullification occurs when a defendant is clearly guilty of breaking a law, but the jurors render a verdict of “not guilty” because they believe the law is unjust and that the defendant does not deserve punishment. At first glance that may sound a little sketchy, but the tactic has a long and rich history.

In Britain in the 1600’s, William Penn (who later founded Pennyslvania) was “charged with preaching Quakerism to an unlawful assembly,” but local jurors voted to acquit. The judge retaliated by imprisoning and starving the jurors, but eventually a chief justice ruled that “jurors could not be punished for their verdicts.”

In colonial America in the 1700’s, John Peter Zenger was charged with libel against the New York governor when it was a crime to criticize public officials. “Despite the fact that Zenger clearly printed the alleged libels… the jury nonetheless returned a verdict of ‘Not Guilty’.”

Jury nullification survived America’s transition to a federal government. The Constitution’s Fifth Amendment protects the acquitted from being tried again (this is known as the “Double Jeopardy” clause). Jurors cannot be asked to explain their verdict and cannot be punished for it; thus, if a jury decides to acquit despite overwhelming evidence, there is nothing anyone can do about it.

That sounds a little dangerous, but let’s look at how jury nullification has been used throughout U.S. history. One of the famous early examples of overreach by the American government was John Adams’s Alien and Sedition Acts, which, among other things, gave the President authority to “apprehend and deport” citizens whose home countries were at war with the U.S. (this allowed Japanese internment during World War II), and blocked freedom of speech by making it “a crime to publish ‘false, scandalous, and malicious writing’ against the government or certain officials.” (This was conveniently used to prosecute political opponents of the Federalists who made the law, but not to prosecute their supporters. Political corruption is nothing new.) But “in the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act.”

Decades later, when the issue was slavery was flaring up, various fugitive laws were passed which required northerners to return escaped slaves to the south. Many in the north resisted, and many jurors acquitted defendants who assisted escaped slaves even though they had technically broken the law. (The Jerry Rescue is a fascinating little moment in U.S. history.)

Finally, “in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.” It is said that “jury nullification in liquor-law trials was a major contributing factor in ending alcohol prohibition.”

Understandably, the government isn’t too excited about citizens being able to nullify its laws, and efforts have been made to discourage and hide this useful tool. “As time went on fewer incidences of jury-veto actions occurred as the courts began concealing jurors’ rights from American citizens and falsely instructing them that they may consider only the facts as admitted by the court.” Yet “the Supreme Court has since repeatedly upheld the doctrine of nullification,” despite also making it easier to hide it. “A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.”

But judges aren’t the only ones who don’t like jury nullification. Many oppose it with good intentions, believing it’s dangerous to invite citizens to take the law into their own hands. They say citizens aren’t expected to be qualified to judge the merits of complicated law, just whether or not someone broke it, and that nullification encourages laws to be inconsistently applied. They usually point to the primary historical example of this tool being used for bad: After slavery ended, racist whites in the South frequently acquitted other whites of blatant crimes against blacks. This critic concludes that it’s better to challenge unjust law “at the ballot box, not in the jury room.”

I’m not convinced by these arguments. Like most tools, it can be used for good or bad, but I don’t think southern racists were actually practicing jury nullification; they were just being racist. They weren’t saying, “Hey, I don’t think murder and rape should be crimes, so I’m gonna vote ‘not guilty'”; they undoubtedly would have convicted blacks for the same crimes against whites. So I think it’s unreasonable to say we shouldn’t acquit against laws we think are unjust because racists will always acquit against laws they don’t think are unjust! “The problem with the all-white juries… was not in jury nullification, but in jury selection.” Reforms since then should prevent those problems today, giving better representation and guarding against selecting biased jurors.

It sounds better to challenge the law “at the ballot box,” but sometimes that it simply not a reasonable solution, and as it seems with Prohibition, sometimes jury nullification itself can play a strong role in getting the law changed at the ballot box. Besides, I don’t think I could in good conscience convict my neighbor of a terrible law and then start a petition to get the law changed.

I’m also not convinced by suggestions that nullification encourages a descent into anarchy. From a philosophical view, the average citizen doesn’t have any incentive to use this tactic to acquit local defendants guilty of uncontroversial things like murder or rape. More importantly, from a historical view, this tool was widely understood and encouraged for much of our history without leading to anarchy. Sure, it feels a little postmodern since we all have our own concepts of what counts as an “unjust” law, but it has generally only been used against the really big, bad ones: Alien and Sedition Acts. Fugitive slave laws. Prohibition. Jury nullification doesn’t encourage disrespect for the rule of law. Indeed, is unjust laws themselves that are the greater cause for disrespect of the law, as people who don’t think something should be illegal start wondering why they should follow all the other laws too.

The tool of jury nullification is not well-known these days, but we definitely still need it. It’s a power we have always had that cannot be taken away from us. Many proponents of jury nullification are thinking about the unwinnable drug war that’s draining our budgets and clogging our prisons with non-violent offenders, but there are many other real and potential applications of this tool (For instance, what if the government ever does criminalize youth farm work?).

Any of us citizens may called to serve jury duty. If you end up in a case with a law that you consider unjust, it is both legal and moral for you to render “not guilty” even if the person clearly broke the law, and even if the judge tells you to only look at the facts. You hold this power in your hands; you just have to know how to wield it. And now you do.