At some point in all criminal trials in the United States, the presiding judge delivers instructions to the jury about what they can and cannot do. Most of it is fairly common knowledge. The jury can only make its decision based on the evidence presented. The jury is the sole trier of fact. The jury must agree that the state has proven guilt beyond a reasonable doubt to convict. However, the court’s instructions typically contain another detail, one that is far more constitutionally dubious and ought to be removed: that the jury is required to adhere to the law’s interpretation (as given) in making their decision, regardless of what they believe the law is or ought to be. This instruction is meant to discourage the jury from acquitting a defendant in spite of overwhelming evidence of culpability. Such an acquittal, normally taken because jurors find the law broken to be immoral or not worth enforcing, is referred to as “jury nullification,” and rather than being dissuaded by the court, it should be explained to the jury as a fundamental right.
Jury nullification is not new; in fact, it has been around since before the United States. In 1734, a man named Peter Zenger published unflattering articles and opinions about the Colonial Governor of New York, William Cosby. This violated the libel laws of the day, which prohibited criticism of the government, whether it was valid or not. Zenger’s attorney admitted in court that he had published the articles, thereby breaking the law, and the judge instructed the jury to convict if they believed he had published them, a fact neither side contested. However, with less than 10 minutes of deliberation, the jury acquitted Zenger in spite of the facts. Later, the Founding Fathers came to see jury nullification as a protective mechanism against government overreach. In 1794, the first Chief Justice of the Supreme Court, John Jay, instructed the jury that they were “to determine the law as well as the fact in controversy.” Alexander Hamilton in 1804 called the trial by jury a protection “against the oppression of government,” and added that it is not only the jury’s job “to judge of the intent with which the act was done … they are also authorized to judge the law as connected with the fact.” Even as the United States has aged, jury nullification has persisted as a bedrock of a democratic republic. Northern juries were known to nullify the Fugitive Slave Act many times, protecting escaped slaves and those who helped them. During prohibition, juries acquitted those who violated alcohol control laws. And during the Vietnam War, protesters who burned draft cards were let free as well. All of this shows that jury nullification is actually a crucial check by citizens on the government.
Today, however, mentioning jury nullification in a courtroom can incur significant penalties. The most relevant Supreme Court decision on jury nullification is over a century old, from 1895. It acknowledges the right of the jury to nullify but says that neither the judge nor the prosecution are obliged to inform the jury of said right. However, despite the 5-4 majority opinion being relatively narrow, legally speaking, it has been stretched and twisted nearly beyond recognition by judges and lawyers in the time since. Judges have now routinely held that informing the jury of their right to nullify can be construed as jury tampering, and it is considered “unethical” for a lawyer to inform the jury of it. These results are completely flawed and are not what the Founders would want. Just because the court is not required to inform the jury of its rights does not make it illegal for defense counsel to do so. If that were the Supreme Court’s intent in 1895, it would have said so. It is clear that courts’ tendency to essentially gag discussion of jury nullification is a slap in the face to the American system of checks and balances and a repudiation of the Constitution’s intent that ought to be corrected.
Having informed juries is even more important in the present-day as judicial power becomes more and more concentrated in the hands of prosecutors. As mandatory minimums have weakened the discretion of judges, “prosecutors have ended up with almost unfettered, unreviewable power to determine who gets sent to prison and for how long.” As the ACLU puts it, they “wield enormous and, all too often, unaccountable power. They have the authority to reinforce mass incarceration and racial disparities in the criminal legal system or combat these injustices.” Prosecutors utilize “prosecutorial discretion” to determine when to bring charges against people; for example, if a woman killed a serial murderer despite not being in imminent danger, most prosecutors would choose to not file charges. However, on average, prosecutors choose to press charges much more often against people of color for similar crimes. Prosecutors generally oppose informing jurors about jury nullification on the grounds that they are supposed to base their decision solely on whether or not the defendant committed the crime. However, it’s ridiculous to weigh a single prosecutor’s discretion as more important than the beliefs of an entire jury! Courts cannot rationally square their support for prosecutorial discretion with their opposition to jury nullification; especially when prosecutors are more inclined to charge minorities, the opinions of prosecutors should not be held in higher regard than those of civilian juries.
Jury nullification can be a bulwark against overzealous prosecutors trying to increase their conviction rate. As power pools in the hands of a few bureaucrats, jury nullification can help mitigate the damage of having just a few government lawyers running our justice system. Though I believe understanding jury nullification is an inherent part of being an educated juror, I also recognize that there have been times in which it has been gravely misused. Case in point, the Emmett Till case, in which the jury of all white men deliberated for just over an hour before acquitting the murderers. This was a horrid misuse of jury nullification and one that should never be repeated. However, I posit that it is unlikely that jury nullification will be used like this in the future; while America’s socio-economic situation is still heavily divided along racial lines, and juries are sadly much whiter and wealthier than the overall community of their peers, courts are finally attempting to increase the diversity of their juries. Studies show that the more representative a jury is of its community, the better a decision it will make. As time passes and courts continue improving the quality of juries, the chance of an Emmett Till-esque verdict should decrease drastically. While jury nullification doesn’t work perfectly, it does more good than bad and as the quality of the jury increases, so will the proper use of jury nullification.
Jury nullification should not have to be used often. It serves as an important second filter for prosecutorial discretion, to ensure that we aren’t filling our jails with men and women who may have transgressed the letter of the law, but a law that is immoral and that ought not be enforced. When used correctly, nullification can fulfill the founders’ wishes of citizens fighting against the overreach of the government. The courts and lawyers of the United States are perpetuating a fraud of a justice system by attempting to prohibit jurors from making fully informed decisions. Nothing in the Constitution, nothing in Supreme Court precedent, and nothing in compliance with the ideals of liberty can justify the gag order placed on advising a jury of their duty to judge both fact and law. The Supreme Court says courts legally need not inform the jury, but any trial without a fully informed and aware jury is not a trial that comports with the basic principles of a democratic society. It is a farce.
Sam Husemann is a junior in high school and writes political opinion pieces for the Next Generation Politics blog. He enjoys studying politics and U.S. government from Congress to his local city hall. When he’s not writing, he’s usually reading, thinking, or cooking. On Instagram as @ husemannsam