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In 1734, New York Weekly Journal publisher John Peter Zenger was arrested for seditious libel because the publication was critical of the state’s authoritarian governor. The law held that even if the criticism was accurate, it was still libel if it made those in power look bad. At trial, Zenger’s lawyer told the jury that even though his client was factually guilty under the law, they should vote to acquit because the law was wrong. Zenger was acquitted in less than 10 minutes, and the trial paved the way for the creation of the First Amendment.
That verdict was an early example of jury nullification—a jury voting their conscience to acquit someone who is guilty of breaking an unjust law. If a lone juror votes to acquit in this way, it would likely mean a mistrial and leave the defendant to face a new jury later. But if the 12 jurors reach a verdict, a defendant found not guilty cannot be tried again. Jurors cannot be punished for voting their conscience. If those 12 people agree to acquit, for whatever reason, then that’s that. It doesn’t matter what the law says.
No one is going to tell you during jury selection that you don’t have to vote according to the law, and can in fact vote however you see fit. Prosecutors and judges certainly won’t mention jury nullification, and may even attempt to suppress such discussion by calling it jury tampering. But that really only applies to anyone trying to influence the outcome of a specific case by talking to the jurors in that trial; general education around the subject is protected by the First Amendment.
Defense attorneys can be held in contempt for advising jurors to override the law.
But defense attorneys can be held in contempt of court for advising jurors to override the law. In some states they might have more leeway than others, if jury nullification is supported in the state constitution. Rhode Island, for example, introduced a proposal in January to amend the state constitution by codifying jury nullification as a “proper” defense strategy at trial.
“A criminal defendant shall, as a matter of right,” the legislation states, “have the right to argue that the jury, during its deliberations, should take into consideration, not just the law, but the facts, the nature of the charge and whether the law, which the defendant has been charged with violating, is morally repugnant, outdated or unfair to the citizenry and those accused of violating the law, or that the subject criminal law charged is unconstitutional.”
In late April, on the other hand, Rep. Julia Letlow (R-LA) introduced the No Rogue Jurors Act, which would ban federal funding for any entity “encouraging individuals to seek jury service in any Federal or District of Columbia court proceeding with the intent to vote contrary to the evidence or applicable law, including promoting the deliberate act of voting to acquit a defendant regardless of whether the elements of the charged offense have been established (commonly referred to as ‘jury nullification’).”
Neither bill has moved out of committee, however.
Once prosecutors had no reason to bother, Prohibition was overturned.
During Prohibition, when the public was frustrated with alcohol control laws, it became commonplace for juries to acquit people charged with liquor possession, manufacturing or sale—even when the evidence of guilt was undeniable. In some jurisdictions the majority of such cases ended this way. Eventually prosecutors had no reason to bother, and Prohibition was overturned.
In 2012, New Hampshire enacted a law authorizing juries to overrule judges they believed to be in error, and authorizing defense attorneys to talk about jury nullification even over a judge’s objection. Within a few months, a jury voted to acquit 59-year-old Doug Darrell of felony marijuana charges; Darrell was facing up to seven years in prison after some plants he was growing in his backyard were spotted from a National Guard helicopter.
In 2018, a Georgia jury similarly acquitted a medical cannabis patient who’d openly admitted cultivating marijuana plants, which the state punishes as a felony even at personal-use quantities.
More and more lawmakers are deciding to fight the drug war with higher mandatory minimums, mandatory life sentences and even the option of the death penalty. Jury nullification should be discussed wherever we see people being unjustly prosecuted for drug possession, drug trafficking, human trafficking and so-called “death-by-distribution.”
Juries have power. They should wield it not against defendants, but against overreaching governments.
Image (cropped) via Clinton County, Pennsylvania