Jury nullification occurs when a jury votes “not guilty” even when there is clear evidence that the defendant violated the law. But why would a jury do this?
To Fight Unjust Laws
During a criminal trial, jurors are told that they must follow the law and convict the defendant if the evidence clearly shows guilt. But what should they do if the evidence proves that the defendant is guilty beyond a reasonable doubt but the law is unjust?
This is a dilemma jurors frequently face in the War on Drugs. Even though 58% of people support marijuana legalization and 84% support no jail time for marijuana, federal agents have continued to prosecute medical marijuana merchants in states where it’s legal under state law. Because most jurors don’t know about their right to nullify the law, they often end up convicting defendants in these drug cases only to regret it later.
But if the law is unjust, the jury must acquit. If the jury decides to convict because they believe they have no other option than to follow the judge’s instructions, the defendant will probably face a very harsh prison sentence.
Some laws are just wrong and even though we’re taught that we should respect the law, not all laws are worthy of respect. Legislators, police, prosecutors, and judges are hardly infallible. Jurors must use jury nullification because the jury is often the only institution whose goal is justice.
To Fight Overincarceration
Oftentimes in criminal trials, the jury will ask the judge what the likely penalty will be if they vote guilty. Instead of telling the truth, the judge will likely instruct the jury that it’s not their responsibility to consider the penalty as part of their judgment. (Again, they’re only supposed to consider the facts).
But jurors absolutely must know beforehand that a conviction in a criminal trial will almost always mean prison time — even for nonviolent offenses.
Due to mandatory minimum sentencing laws, even first-time nonviolent drug offenders may receive multi-year prison sentences. Prosecutors routinely use these harsh sentences to extract guilty pleas without a trial. They do this by offering a plea bargain whereby the defendant receives a shorter prison sentence in return for a guilty plea. (97% of federal convictions and 94% of state convictions are the result of plea bargains.)
Moreover, trial judges have little or no power to deviate from the mandatory minimum sentence that would be the consequence of a jury’s guilty verdict.
Jurors deciding the fate of a criminal defendant must appreciate that the defendant likely passed the opportunity to take a plea bargain. Perhaps they are brave. Perhaps they are crazy. Or maybe they are simply not guilty. Regardless, the defendant has bet their life on the jury, and the penalty for a guilty verdict will be incredibly severe. Their fate is truly in your hands.
To Fight Institutional Racism
The War on Drugs has had a devastating impact on communities of color. Although rates of drug use and selling are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than whites. As a consequence of this selective enforcement, the incarceration rate of young black males in the U.S. exceeds that of South Africa under Apartheid. (Writer Michelle Alexander calls this “The New Jim Crow.”)
These aggressive racial disparities have influenced Professor Paul Butler to embrace jury nullification as a practical political tool. As a former federal prosecutor in Washington DC, he experienced jury nullification in action. In order to avoid sending yet another poor, young black man to prison, juries were sometimes unwilling to convict such defendants accused of nonviolent drug crimes. You too can play a role by using this power.
To Continue a Proud Tradition
Since its inception, the jury has emerged as the protector of the accused against harsh criminal laws. As America moved toward revolution, the denial of trial by jury became one of the colonists major complaints against British rule. The Declaration of Independence charged that King George deprived the colonists “in many of the benefits of trial by jury.”
When the Framers drafted the 6th Amendment, they understood that the right to trial by jury and the jury’s right to nullify the law were one and the same. John Adams didn’t mince words about the jury’s purpose in 1771 when he said “it is not only [a juror’s] right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Despite official attempts to discourage it, American jurors have used their nullification right to counter bad laws and policies. Juries refused to convict defendants who violated the Fugitive Slave Act. During Prohibition, juries refused to convict bootleggers. And during the Vietnam War, juries refused to convict anti-war activists. You too can be on the right side of history by voting your conscience on the jury.