Liberty Lifestyle: The People’s Power of Jury Nullification

Serving on a jury is our civic duty, and with that duty comes great responsibility. The decisions we make will affect a person’s life, as well as the lives of their families. The choices we make are supposed to be based on evidence and the law. But what happens when the panel feels the law is unjust? Do they have any recourse? Jury nullification is something people have been using for centuries to get around laws they feel shouldn’t require punishment. But is it legal?

Colonial America

In 1735, more than 40 years before the Declaration of Independence, the case of Crown v. John Peter Zenger took center stage and is one of the earliest documented cases of jury nullification. Zenger was a printer and published the New-York Weekly Journal, a newspaper that criticized the colony’s royal governor, William Cosby. The colonial authorities charged him with seditious libel. “Seditious libel was defined as the intentional publication, without lawful excuse or justification, of written blame of any public man or of the law, or any institution established by the law,” the Historical Society of the New York Courts explained.

The problem for the printer was that under the English common law at the time, truth wasn’t considered a defense against the charge of seditious libel. The judge instructed jurors to decide whether Zenger had published the material, not whether the law was fair. Zenger’s attorney, Andrew Hamilton, appealed to the jury:

“The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.”

Even though the publication was acknowledged, the jury returned a not guilty verdict.

Jury Nullification

Jury nullification is one of the more unusual powers jurors have in America’s justice system. It means that a jury can find someone not guilty even when they believe the person broke the law, because they disagree with the law itself or believe a conviction would be unjust. It’s a little confusing, though.

While juries have the practical power to do this, they generally don’t have the legal right to disregard a judge’s instructions. In 1895, Sparf v. United States made a legal distinction between a jury’s power and its rights. The Supreme Court ruled that federal criminal juries must take the law that the judge provides and apply it to the evidence, not decide for themselves what the law should be.

However, jurors don’t have to justify or disclose the reasons behind their verdict, and under the Fifth Amendment’s Double Jeopardy Clause, a not guilty verdict can’t be overturned by a judge or appealed by the prosecution.

Examples Through History

The Fugitive Slave Act of 1850 strengthened federal enforcement and penalized people who helped slaves escape. Some Northern juries refused to convict in these cases, even when the evidence showed the defendant had done as the law forbade. This was a way for abolitionists to resist the laws they considered immoral.

The Eighteenth Amendment brought about Prohibition in 1920, under which Americans were not allowed to manufacture, sell, or transport alcoholic beverages for ordinary consumption. Not everyone was happy about this, and in some communities, juries were reluctant to convict people who violated Prohibition laws.

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Jury nullification wasn’t just used to defend morals and what some considered unjust laws. During the Jim Crow era, all-white juries sometimes refused to convict white defendants accused of murdering or attacking blacks and civil rights workers. For example, Emmett Louis Till, a 14-year-old African American boy, was abducted and lynched in Mississippi. On September 23, 1955, an all-white, all-male jury in Sumner, Mississippi, acquitted Roy Bryant and J.W. Milam of the murder after deliberating for only 67 minutes.

Liberty isn't just about the laws our government makes. It's also about the people who are expected to follow and uphold them. Jury nullification gives everyday Americans a way to push back against laws they believe are unfair, but history shows that power hasn't always been used for the right reasons. The tricky part is deciding when refusing to enforce a law is standing up for liberty and when it's denying someone else the justice they deserve.

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