Jury nullification – the ability to acquit someone who violates immoral, unjust or unconstitutional laws – is a vital tool in the defense of liberty. In fact, one might say it is the last line of defense at our disposal within our political and legal system.

However, Orin Kerr at the Washington Post believes jurors aren’t suitably equipped to handle such power, and without proper checks and balances, jury nullification will lead to abuse.

In response to a post by Ilya Somin, Kerr makes some unsettling and perplexing conclusions about the principle, chief among them that prosecutors knows best.

As I see it, there at least two big problems with jury nullification that make jury discretion much more problematic than prosecutorial discretion.

First, prosecutors know the facts needed to make decisions in the name of justice while juries generally don’t. Prosecutors are supposed to make a decision to prosecute after learning things like the suspect’s criminal record, the full scope of his conduct (including the inadmissible parts), how much a prosecution might deter future crimes, and what the punishment might be if the suspect is convicted. Prosecutors can get the facts and make a call.

We might disagree with a prosecutor’s decision, of course. But the prosecutor at least has access to the information needed to make the decision. [Emphasis added.]

Kerr is referring to the prosecutor’s ability to decline to prosecute someone for breaking a law. Somin argues that while prosecutors have this choice, the political nature of their position makes this much more difficult for them to act on it than jurors, whose careers are not affected by their decision.

To say that prosecutors have the knowledge to decide whether someone should be charged with a crime, but jurors don’t have access to the information needed to make their own decision misses the point entirely. Jury nullification isn’t about the guilt or innocence of the individual. It is about the justness or constitutionality of the law itself.

Saying that prosecutors have access to additional information about the defendant that is inaccessible to the jurors is only relevant if the jurors are considering nullification in that one specific instance for that one specific person. It is irrelevant within the context of nullifying unjust laws, because the defendant’s background or past history has no bearing on the morality, justness or constitutionality of the law under consideration.

Kerr goes on to say that the political nature of the prosecutor’s position is actually appropriate because it forces them to remain accountable to the people, whereas jurors face no consequences for poor decision-making. He also seems to lament the power one juror can have in a trial.

It’s a different picture with juries. You might think of juries as a representative of “the People” and therefore assume they are democratically accountable. But note that in criminal cases, the law normally requires juries to be unanimous in order to render a guilty verdict. It takes only a single juror to block a conviction. The evidence can be overwhelming, and eleven of the jurors can believe fervently that a particular case is the most compelling prosecution ever brought. But a single juror, accountable to no one, can put the kibosh on the case based on his own vision of justice that may have no connection to anyone else’s. We don’t normally think of placing all the power in one unelected person who answers to no one as a democratically accountable approach. [Emphasis added.]

While Kerr has legitimate reasons to be concerned about the power of a single person, that is also the beauty of jury nullification. When considering immoral, unjust or unconstitutional laws, it only takes one juror to stand up and say no.

Saying that prosecutors are “democratically accountable” is not necessarily a good thing. Democracy is great, as long as the majority hold moral and just points of view. But what happens when the majority comes to hold an immoral or unjust opinion? Nazi Germany provides a perfect example. The majority thought persecuting Jews was fine.

So, what happens when most people believe an innocent man should be prosecuted for violating an unjust law? What happens when prosecutors feel pressured to press charges against someone, even when they believe the law to be immoral?

Jury nullification allows for the protection of individual liberty, even if there is only one person willing to stand up for it.

Prior to the Civil War, northern juries acquitted many people accused of violating the Fugitive Slave Act, For instance, juries refused to convict many who aided the escape of an accused runaway slave from a Syracuse, N.Y. jail in 1851. After what is known as the Jerry Rescue, 26 people were prosecuted for their involvement in the escape, but only one was convicted. As TAC Director/Founder Michael Boldin explains in this video, the juries kept nullifying the law and acquitting the accused.

Should the jury have convicted them all, instead? They did break the law, after all.

To Kerr’s credit, he recognizes the appeal of jury nullification, even though he ultimately feels that what works in theory does not work when practically applied.

But consider that people with your wisdom and judgment can’t be on every jury. When you consider all the juries, the effect of encouraging nullification is likely to make the system more arbitrary and less accountable rather than more wise.

Finally, some of the arguments for jury nullification sound like arguments for executive clemency in slight disguise. Executive clemency should be a critical part of any criminal justice system. Decisions to grant executive clemency are made by a democratically accountable office, however, after a review of all the facts. That’s not true with jury nullification. [Emphasis added.]

The fact is there is nothing currently stopping a jury from acquitting someone in spite of incontrovertible evidence. Kerr is right, we can’t have people with wisdom and judgment on every jury. We often don’t. I don’t see him calling for the end of juries.

That’s why educating Americans about the purpose of jury nullification is so critical. Those who are willing to acquit a guilty man for breaking a morally sound law or convict an innocent man who didn’t actually break it, will do so anyway. Advocating for or condemning jury nullification won’t have affect on such people.

But the same cannot be said for those who remain unaware of jury nullification, yet would use it if they were aware that they had the option.The purpose for advocating jury nullification is so that jurors who would ordinarily convict someone for violating an unconstitutional, immoral, or unjust law are aware of the fact they can acquit the defendant no matter what evidence is presented.

The purpose of jury nullification is to prevent innocent people from suffering the wrath of immoral, unjust and unconstitutional laws. It is a final check against state and government authority. It provides one last opportunity for people – even just one – to exercise their power as the true sovereign authorities.

An example of this occurred in New Hampshire when Doug Darrell was arrested and charged with felonies for cultivating marijuana for religious and medical purposes. If convicted, he would have likely faced many years in prison. He was guilty by the letter of the law, but the jury decided to acquit him anyway.

The first Chief Justice, John Jay, stated the following to the first jury in Georgia v. Brailsford.

It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision. [Emphasis Added]

Thomas Jefferson also defended jury nullification, writing that “if the question relates to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system” [Emphasis added.]

The federal government can overwhelmingly pass a law in flagrant disregard for the Constitution. Every justice on the Supreme Court can “interpret it” to be within Congress’ power. The states can adopt it and take it upon themselves to enforce this law at a local level. They can spend millions, even billions, trying to do so.

But if one person on a jury is willing to defy it, there is nothing they can do.

As the federal government continues to trample the Constitution underfoot, jury nullification is a tool that simply cannot be allowed to sit idle in the struggle to defend our liberties.


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