Jury Nullification

This morning I want to talk about juries and the role they play in our constitutional system in the United States, the Rule of Law™, and ethics.

Dovetailing off of the Civics 101 post I wrote last night, it’s important to note that I left out a few important elements of the Federal Republic of the United States, juries being the most important of these. I did this for one reason: I was encouraging participation in elections. But I want to stress how important whole participation is to the proper functioning of the constitutional system we have in the United States right now… Without smooth and efficient functioning at all levels of Government, Government does not work for the People, which is how the regressive Right wants it.

So let me create that addendum right now:

JURIES Juries are the second, fundamental participatory element of the People in Government. Juries are important because the Rule of Law, while set by Representatives of the People and enforced by an indirect Representative of the People (the President), must be administered by the People from whom its authority is derived. Judges, appointed by the President and confirmed by the Peoples’ Representatives, are not accountable to the People. Juries are the People.

So, there you have it, folks. Juries are equally as important as voting in the processes of a for-the-people/by-the-people government. Which, coincidentally, brings me to what I actually want to talk about this morning: Jury Nullification!

Jury Nullification

If you have ever been called to service on a jury, you know that the Judge issues explicit instructions to jurors throughout the trial process at several instances. And that is their right and prerogative to do, the Judge is the ultimate authority within the Court Room. But it’s important to note and keep in mind that the Judge is, often times, leaving out critical details to the functioning of the Court and the role of the jury in the trial. It is also important to note that jury deliberation does not take place in the Court Room.

Jury nullification describes a not guilty verdict of a criminal trial’s jury despite a defendant having clearly broken the law. Reasons may include beliefs that: the law itself is unjust, the prosecutor has misapplied the law in the defendant’s case, the punishment for breaking the law is too harsh, or general frustrations with the criminal justice system.

Wikipedia, Jury Nullification

See, the ultimate authority in the Court Room is the Judge, but the ultimate authority in the case is the jury and, again, jury deliberations take place in jury rooms, not Court Rooms. So, regardless of what the Judge instructs the jury to do, the jury can find whatever verdict they want. And if they feel the punishment is unfair, the law or statute is unjust, or the circumstances of the crime are extraordinary, the jury can find the defendant not guilty—which is an acquittal.

While not an enumerated part of the United States Criminal Procedural Code, nullification is provided for by the interplay of two rules which do govern the system of the Court: (1) Jurors cannot, under any circumstances, be punished for their findings, either right or “wrong,” in a case by the State or the Court. And (2) a defendant who is acquitted may not be retried for the same crime, otherwise known as “double jeopardy.” Because of these two rules, and given that the jury has an absolute and unqualified—meaning the right is total and not restrained by any conditions either enumerated or implied—right to reach any verdict it so chooses, juries can nullify an individual crime. And, if done enough by multiple juries over time, through lack of enforcement, ultimately de facto nullify a law.

These aforementioned details are what the Judge typically refrains from mentioning to jurors! And if you even hint at suggesting thinking about mentioning nullification during voir dire, you will be removed from the juror pool by the Judge. (Which I only mention as a reminder to NEVER EVER MENTION NULLIFICATION when called to serve, not as a way to avoid service!) Jury service is an essential and integral part of the system, please do not employ tricks and games to avoid serving!

Why Are We Talking About This?

Listen, I understand that we all want immediate action to combat the regressive tides sweeping the nation since 2016. This is one of the available and legitimate immediate actions we have! Nullify abortion crimes, nullify weed possession crimes, nullify food shoplifting crimes, nullify loitering crimes (which are often used to criminalise and prosecute unhoused and homeless populations)!

But What About the Rule of Law™?

Laws are only ethical when they apply equally to everyone, when they have the support and consent of the governed, and when they can be and are enforced without prejudice. When we see, as we do, criminal drug laws which disproportionately affect people of colour, bodily autonomy laws that strip women and people AFAB of their ability to decide what to do with their own bodies, and the myriad other laws Republicans have written and passed against the popular will of the people across the country, the Rule of Law is not without prejudice and therefore is not ethical. And in those instances, the system must be corrected by the direct intervention of the People.

Is Jury Nullification Ethical?

It can be, yes. While the 1895 Sparf decision says that juries can be kept ignorant of their powers to render any verdict they so choose in a case, that does not mean that the act of jury nullification is unethical or immoral. Where there is a clear imperative to correct an unjust law—such as is the case with the Dobbs decision handed down yesterday morning—juries should feel empowered to nullify the criminal statute.

† Please note that while I am using this paper to show you how to use Jury Nullification ethically, I take strong issue with the example given in the paper of what constitutes ethical use of nullification in the case of a “crime against an abortion provider.” Fuck that noise.