IPFS Mike Renzulli

More About: Criminal Justice System

Jury Nullification: Liberty's Last Hope

During a meeting I attended recently, I got into a discussion with someone about the prospects for liberty ever being restored. I tended to take the optimistic view that freedom in America can and will make a comeback, while my friend took the opposite view. 
   She had grown up during the 1940s and 50s, times she considered to be when America was at her most productive and wealthiest. While I tended to disagree with her, I could understand where she was coming from. Since the war on terrorism has been declared, the federal government has assumed almost unlimited powers, including the legal ability to spy on, monitor and imprison anyone in the United States. Inflation is starting to rear its ugly head again, due to all the money printed thanks to our “national bank,” the Federal Reserve, while our total tax load takes up almost half of our income. Drugs and prostitution still remain illegal and now, thanks to the backlash against immigrants, the ability to migrate to and from the United States just got harder, due to a passport being required for travel internationally. (I won’t go into the domestic passport coming soon to a D.M.V. near you: the national ID card.)
     However, even though things may seem bad at face value, fortunately there is something that can be done to lay the ground work to reverse the erosion of our freedoms: jury nullification. 
     Since the 13th century, when juries were first utilized in England as a result of King John signing the Magna Carta, jurors have had the right to nullify (i.e. strike down) laws that they deemed oppressive, by acquitting a defendant arraigned for violating laws enacted by government officials.  
     Back then, and even to this day, a jury has the power to judge not only the facts of a case but the law itself. Essentially, juries have the power, if not the duty, to judge the law, and as a juror you are under no obligation to uphold it.  
     The best known examples of juries in the United States nullifying oppressive laws in this country was when juries in northern states refused to convict Underground Railroad activists indicted for smuggling slaves to northern states from the south. Even though courts were no longer responsible to inform juries of their right to nullify, due to the infamous Sparf vs. U.S. decision, juries often refused to convict defendants in cases involving the sale and smuggling of alcohol. Many years later, by regularly acquitting people accused of violating laws that made alcohol illegal, it gave momentum to the movement that lead to the 18th Amendment being repealed.
     With the wars on [some] drugs and terrorism looking to be even bigger problems down the line, now is a good time to educate people (especially you, your family members and friends) about this right jurors have had for hundreds of years. 
     The only way to adequately restore our natural, individual rights is to educate people, so that those who are accused of non-violent, consensual, adult-oriented activities (like drug or gun possession, prostitution, gambling, etc.) will either be acquitted or their juries “hung” – so that the laws that oppress them will be struck down, or the expense to prosecute people for violating consensual crime laws  or even provisions of the USA PATRIOT Act will not be worth a prosecutor’s time and effort to re-try a case.  
     While electing people to office is one way to end the damage done to our civil rights and liberties, as the International Society for Individual Liberty’s jury nullification history pamphlet points out, legislative bodies will almost always confirm the constitutionality of their own acts. Moreover, the oaths sworn to by judges and legislators are only as good as the power to enforce them and if recent events are any indication, the politicians have no intention of reversing much of the damage to our liberties.  
     Nor are elections adequate to prevent or halt tyrannous acts by the legislative or judicial branches since elections come only periodically and are no guarantee of repealing laws enacted that violate people's rights. The best way to secure our liberties is for juries to veto unjust laws passed by politicians and upheld by courts. Even just having hung juries for drug, prostitution and gun crimes could make a real difference, since the prosecution would see little value in trying to re-try cases where juries could or would not convict.
     While there is some concern that the way jurors are selected is so rigorous that the jury selection process is rigged to screen out jury nullification activists. However, the voir dire process can only weed out so much. For example, an August 1999 report published by the Washington Post points out that more and more people using the jury box as a form of civil protest. While the report is somewhat dated, and the study acknowledges that rebel jurors comprise a small number of the thousands of people who turn out daily for jury duty. Cases cited in the report revealed a consistent, significant pattern of juror defiance.  
     I think there is cause for hope because this little known power jurors have is still a component of the checks and balances which is an essential part of our republican form of government and it seems a small number of people are willing to take the risk not to convict people of consensual crimes, despite a defendant’s violation of the law.
     If you want to help start to get the word out about this, the best way to do so is not only to talk to your family members and friends about this but also by pamphleteering as well as a wide variety of different methods. The Fully Informed Jury Association ( http://www.fija.org ) is the best organization to tap for resources and ideas on how to spread the word about jury nullification.

     With the four other bodies of government occupied by people hostile to or unlikely to end freedom-destroying programs (e.g., the war on [some] drugs), educating people about this doctrine is needed now more than ever. Since it is only an educated populace that can restore our liberties.

Like Thomas Jefferson said: "It is left ... to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty.