The idea of taking the law out of the hands of just an appointed judge, and putting this responsibility onto the people themselves, is embodied in the jury system. Verdicts are thereby not unilaterally decided by a judge, but by a jury of one’s peers.
The power of the people exists to render unjust laws obsolete. And it is seen in their ability, and natural right to nullify. Jury nullification is a process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of the evidence against him or her. If you believe the person is being prosecuted under an unjust law, or the law is being wrongfully applied, you can choose to acquit the defendant, and set them free.
You have the right to take upon yourselves to judge [both the facts and law].” – Chief Justice John Jay
Jury nullification occurs when a jury returns a ‘not guilty’ verdict, despite any evidence or belief that the individual committed the crime. The jury essentially nullifies a law it believes to be unjust, wrongly applied, or immoral. One more popular case involving jury nullification was in 1735, involving John P. Zenger, charged with printing seditious libels about the Governor of the Colony of New York. The grand jury refused to indict him. Once a jury returns a verdict of ‘not guilty’, the double jeopardy clause prohibits a retrial on the same charge. The Zenger trial was a landmark case which established that truth is a defense against charges of libel.
If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law” — Lysander Spooner
A jury’s fundamental role is to represent the wider citizenry in the legal decision making process. It is one of the many tools used to ensure that citizens do not fall victim to a tyrannical government. Courts, unsurprisingly, are rather reluctant to encourage or educate about jury nullification. Some judges believe that informing jurors of their right to nullify, would lead to ‘jury anarchy‘.
Jury nullification activist Julian Heicklen was arrested for handing out fliers on the subject. Heicklen believed he was exercising his right to freedom of speech, and he was intending on informing individuals on the natural right of jurors to nullify. One government lawyer called Heicklen a “significant threat” to the integrity of the judicial system. Attorney Steven M. Statsinger said Heicklen was within his rights because the plaza outside the federal courthouse is a public forum, and he is not trying to influence any particular jurors in any ongoing cases.
“There’s no corrupt intent to undermine the outcome of a particular case,” the lawyer said.
“I was summoned for jury duty some years ago, and during voir dire, the attorney asked me whether I could obey the judge’s instructions. I answered, “It all depends upon what those instructions are.” Irritatingly, the judge asked me to explain myself. I explained that if I were on a jury back in the 1850s, and a person was on trial for violating the Fugitive Slave Act by assisting a runaway slave, I would vote for acquittal regardless of the judge’s instructions. The reason is that slavery is unjust and any law supporting it is unjust. Needless to say, I was dismissed from jury duty.” — Walter Williams, 11 July 2007
A recent success for jury nullification occurred in New Hampshire, where a man was cleared who had been accused of growing his own marijuana. Doug Darrell, a 59-year old man from Belknap County in New Hampshire was charged with marijuana cultivation when members of a drug task force had seen his pot plants from a National Guard helicopter. He was facing a possible 7 years in prison on the felony charge, for having 15 plants in his possession.
Jury nullification should be a natural and legal right. It is a dynamic counter-balance to the institutions of law, which normally take a relatively monolithic form. This makes them largely unable to change based on new information and context. By decentralizing decision-making to the people themselves, instead of a judge, the law becomes based on what is right, instead of what is law.