Most people I know do their best to get out of jury duty, but it’s something I actually look forward to, and hope to be selected for at some point. This is because sitting on a jury is the only “civic duty” I find to be at least halfway morally acceptable and worth my time. Unlike during elections, when on a jury, your vote actually counts for something and individual members can make a difference in the trial’s outcome, and even on the very laws in question.
There was a time in our history when it was commonly understood that juries weren’t merely selected to decide whether a particular defendant was innocent or guilty, but were also charged with deciding if the law itself was legitimate. A jury would consider whether the accused should even be in court, not just whether the prosecutor had sufficiently cherry-picked his evidence and met the legal requirement for obtaining a conviction. And if the law was unjust, if it violated the natural rights of the accused, then the jury would nullify it, thereby releasing the accused and effectively tossing out the law at the same time. This understanding of jury trials has been systematically undermined in the United States, to the point that simply handing out pamphlets on the subject is cause for arrest and prosecution.
In 2011 Julian Heicklen was detained and put on trial for “jury tampering.” Some New York prosecutors feared his modest act of pamphleteering would so undermine their ability to jail defendants for non-crimes that they attempted to silence him by locking him in a cage. Prosecutors referred to Heicklen’s advocacy as “a significant and important threat to our judicial system.” This is of course nonsense; it’s certainly a threat to those lawyers’ professional careers, but it’s a wonderful thing for all the rest of us, who may at any time become a victim of the gargantuan legal code now in place.
But jury nullification is making a renaissance of sorts. This past summer New Hampshire became the first state to legally recognize such nullification, and added as one of the rights to the accused that “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” Put simply, defense attorneys can tell the jury to acquit their clients without interference from the state’s judges.
Despite the law not being effective yet, this process has already played out in a New Hampshire courtroom at least once. Last month Doug Darrell was acquitted by a unanimous jury after being charged with growing marijuana. It’s important to note that his acquittal was preceded by Judge James O’Neill instructing the jury that “even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.”
This is indeed profound, and Darrell is fortunate to have had said such an open-minded judge hearing the case. Not all judges would be so keen on individual jurors exercising such independence. And that’s exactly why nullification from the courtroom is so important. It’s the essentially the last line of defense for an overbearing legal code. By the time someone is sitting in court it’s entirely likely they’ve spent some time in jail, had their entire home searched, lost their job, fallen behind with bills, and been forced to pay incredible sums for legal representation.
The only thing standing between them and the raw power of the state is a small group of conscripted jurors, most (if not all) of whom would rather be anywhere else. Having a judge admonish them to look only at the facts of the case, and ignore the merits of the law is daunting. But understanding and using the principle of nullification, well, nullifies all of that. It puts the power back in the hands of the individual and counters the government’s legal system, which is so often prone to injustice, despite its rather Orwellian name.
The other important aspect of jury nullification is that it may be used on virtually any level, be it federal, state, or local. Nullification is an important tool for the states to use against usurpation from the Feds, but there really is no such check for municipalities or county-level governments, other than perhaps a sheriff, but that’s not always a good option; jury nullification is. Just imagine that someone is dragged into a courtroom for a made-up crime, say selling milk, and a trial can’t even begin because none of the jurors will even agree to hear the case. In the selection they all make it clear that no one charged with a non-crime will be convicted. That should be the goal.
Something close to this happened in Minnesota recently. Though his case, like Darrell’s above, had to go to trial, Alvin Schlangen was nevertheless found not guilty by his jury, who exercised their veto and told the court to send him home. Like so many farmers he was targeted for the heinous crime of selling milk, but at least in his case reason prevailed, and rightfully so, as the Fully Informed Jury Association’s Iloilo Jones explains: “As laws become more and more invasive, punitive, and draconian, prison populations become more and more peopled by harmless, productive people, who have harmed no other person.” This has to stop.
As I alluded to earlier, there is one glaring problem with the current system, and that is the compulsory nature of jury duty. In a free society no one would be forced to sit in a courtroom and participate; only those consenting to be on the panel would be present. How this would all play out is the subject of another article entirely (indeed, whole books on this very topic have been written). Suffice it to say that compulsion is not compatible with individual liberty in a courtroom any more than prohibiting nature, e.g., cannabis and raw milk is congruent with personal freedom.