The power of jury nullification

You usually hear of this in the context of drug cases but in these days of draconian sentencing and the prosecution of political dissenters, it's a subject worth discussing outside of that frame. Radley Balko posts a brilliant column on jury nullification. This is the check on the balance of power available to ordinary citizens. I urge you to read the whole thing, it's not long, but here's the money quotes.

The doctrine of jury nullification rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning.

The first point is not necessarily true. I'm aware of at least one case in Massachusetts where a lone juror was arrested on other charges after having evoked nullification. While she wasn't directly punished for exercising that right, the arrest was clearly linked to her decision. I'm also reminded of arrests made outside of courthouses of pamphleteers who attempted to distribute information to incoming jurors on the subject. The court clearly doesn't relish having it's authority undermined. Nonetheless, although it takes courage to employ this tactic, it is our right as citizens to do so.

Here in America, the Founding Fathers understood the importance of allowing juries to determine not just the guilt or innocence of the man on trial, but the justice and fairness of the law he's charged with breaking. John Adams said of jury nullification, "It is not only [the 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." John Jay, the first chief justice of the Supreme Court, said "The jury has the right to judge both the law as well as the fact in controversy."

...In recent times, the doctrine has become almost obsolete. Judges routinely instruct jurors that they are not to determine the justness of the law in question, only whether the defendant is guilty of breaking it. This is simply not true.

...In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that "juries are not bound by what seems inescapable logic to judges." And in 1972, that "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

...Serve when you're called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he's guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with "not guilty," no matter what the judge, the prosecutor, or the evidence says.

We have the power, it's up to us to use it.