Jury Rights: Nullification and Abolition of Victimless Crime Laws
Commentary From Your Libertarian Opinionizer
Jury Rights Day in America is September 5. On that day, and every day spent as jurors, juries can nullify government-imposed victimless crime “laws” and set people free.
The right to trial by jury in a criminal case is guaranteed by Article III, Section 2 of the US Constitution (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”) and in the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”).
In addition, the Seventh Amendment begins, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…”
Note that in all three cases, the United States Constitution guarantees trial by jury, not trial by judge.
So What’s This Nullification Stuff?
This is what the website FindLaw says about jury nullification:
“Jury nullification is legal according to the U.S. Supreme Court, but whether or not juries need to be instructed on this right is a different matter. The Supreme Court has ruled that while the power of jury nullification exists, state courts and prosecutors are not required to inform jurors of this power.”
The concept of jury rights, specifically the right of a jury to “nullify” any law they find objectionable, is very simple: A jury has the absolute right to judge the law itself as well as the person accused of breaking it.
If a jury decides that the law itself is wrong, or that it’s being wrongly applied in a particular case, they can refuse to convict even if it’s been proven beyond doubt that the defendant actually violated that particular law.
Don’t let anyone try to tell you that jury nullification is illegal or that it’s unconstitutional. Don’t believe it. No U.S. Supreme Court ruling has ever specifically validated or invalidated jury nullification. But a 1969 Fourth Circuit decision “affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.”
More on that last part later.
350 Years of Trashing Bad Laws
Juries have been nullifying bad laws since the right to do so was established in England in 1670, in the American English colonies since 1735 and tacitly in practice if not explicitly in law in the United States of America since its founding.
Since then, there have been many admirable examples of acquitting so-called lawbreakers using jury nullification.
Prior to the American Civil War juries frequently refused to convict abolitionists and their sympathizers who operated the underground railroad that assisted slaves escaping from their Southern masters in direct defiance of the Fugitive Slave Act because, simply put, they considered the law to be immoral. Who would argue against that today?
During the Prohibition Era of the 1920s and 30s juries often acquitted fellow citizens charged under the alcohol control laws. Some sources claim the nullification rate was as high as 60% which certainly contributed to repeal of the unpopular act in 1933.
The teetotalers had cleverly chosen 1919 to ram their anti-alcohol amendment through while the majority of young voting-aged men were still in Europe, celebrating the recent end of World War I by exuberantly passing the champagne bottles around.
Similar nullification responses have been occurring in courtrooms in modern times over laws against prohibiting the possession and use of marijuana and will hopefully continue, extending even further to the repeal of the vicious, estimated $1 trillion Drug War that has been a grotesque failure since 1971.
During the Vietnam Era many war protestors and draft resisters were acquitted by juries even though they had been proven guilty of breaking relevant laws on the books. Both likely helped end the war and end the draft. The Selective Service announced in January 1973 that there would be no further draft calls. Protesting war and conscription are just alternative ways of proving one’s loyalty and patriotism.
The Ongoing War Against Bad Laws
In a 1998 article Vanderbilt University Law Professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases." In other words, exercising their right of jury nullification in cases where they see the legal establishment running amok.
All of these issues are generating ever more concern from ever more people and making ever more headlines today, proving that libertarians in particular and decent people in general have moral grievances with our legal system that lawmakers, law enforcers and the political classes don’t seem to readily understand or care about.
In the 21st century there appears to be evidence that juries have more and more begun to consider the validity, the fairness and the corrective power of jury nullification. One source estimates that 3% to 4% of all jury trials involve nullification and that the instances of hung juries have risen from an average of 5% in the past to 20% in recent years.
Another factor in more hung juries and outright nullifications may be the frequently repeated fact that the “Home of the Free" United States has more people behind bars than any other first world country on the globe.
Hung juries result when at least one juror, and typically more than one, may be secretly applying jury nullification while refusing to convict for other stated reasons. They usually have to do that because of that earlier quote about the 1969 Fourth Circuit decision that “affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.”
Control Freaks Hate Losing Control
The result has been that virtually every arrogant, narcissistic, control freak judge in every jurisdiction in every part of the country vigorously refuses “to permit an instruction to the jury to this effect.”
So apparently, throughout the barely-enlightened US legal system, which is jealously organized, managed, manipulated and “owned” by the authoritarian permission-granting legal-judicial-bureaucratic industry for their own benefit while pretending to use it for our good, jurors have the power but not the right to engage in nullification.
This would be like instructing cops that the suspects they’re arresting have “the power” to remain silent but the arresting officer has no obligation to tell the suspect about their right to remain silent. Jurors, in other words, are not allowed the equivalent of Miranda Rights.
Self-educated Jurors know that any mention of nullification during voir dire will get them kicked right out of the courthouse and banned from speaking such heresy to any other potential juror under threat of arrest for “jury tampering,” a favorite gimmick by judges who want to silence any challenge to their own absolute powers.
Further, if you as a juror were to utter the blasphemous “nullification” word during deliberations another docile, obedient juror could rat you out to the judge who could then declare a mistrial or replace you with an alternate and sternly warn everyone to obey his exact instructions to the letter.
The people of New Hampshire, likely spearheaded by the influx of libertarians moving there as part of the Free State Project, passed a law that explicitly required judges to inform jurors of their right to nullify. No surprise that the state’s Supremes squeezed all the grit out of it so judges and prosecutors could continue their business as usual.
Judges and prosecutors continue to make every effort to weed out what they see as “rogue jurors,” meaning that the judge is implicitly if not explicitly on the side of the prosecution. After all, they both get their paychecks from the same IRS-filled tax bucket.
Jury Nullification vs. Jury Stacking
Unfortunately, many conventional law-abiding citizens still believe that jury nullification is “a brazen lawlessness and a prescription for arbitrariness” while libertarians contend that many laws are themselves examples of “a brazen lawlessness and a prescription for arbitrariness” imposed on society by the self-declared self-serving “experts.”
Jury nullification, after all, doesn’t erase the bad law from the books, it simply nullifies the application of the law in each specific case in which nullification is used. The brazenly arbitrariness of the law itself—Fugitive Slave Act, alcohol prohibition, drug prohibition, anti-war demonstrations, peacefully distributing Jury Rights pamphlets—continues to be enforced over and over until they’re finally stricken form the law books.
Some nullification dissenters try to vilify jury nullification by equating it with racism, claiming it was part of the Jim Crow laws used to keep segregation legalized throughout the South during the 19th and 20th centuries, and especially in the 1950s and '60s when all-white juries were expected to acquit white defendants accused of murdering blacks while convicting blacks for “disrespecting” or “forgetting their place” in the white-imposed social order.
But this is blatant bullplop. Jury nullification occurs when an impartial jury believes the law itself is unjust. Convicting black people for being black is a clear case of cynical jury selection, in this case excluding jury service on the basis of race. The practice of allowing only white good ol' rednecks to serve on juries—no non-whites, no enlightened whites, no women—is nothing less than transparently despicable race-based jury stacking, not jury nullification. These cases were not, in short, nullification by impartial juries but legalized muggings by a blatantly racist legal system.
Resurrecting a Jury’s Right to Nullify
The right of a jury to consider the law itself as well as the facts of a case had almost been forgotten in the 20th century. Then in 1979 former Chair of the Montana Libertarian Party Larry Dodge raised the issue during the party’s state convention where the Fully Informed Jury Association (FIJA) was first conceived.
But it wasn’t until 1989 that Dodge met Don Doig at the LP national convention in Philadelphia and the two co-founded the Fully Informed Jury Association. Others soon picked up the cause and independent, state-level groups soon began forming.
While FIJA’s early roots are in the Libertarian Party today it’s a nonpartisan, educational organization with supporters from across the political spectrum and across the country.
Jury Rights Day is typically celebrated by activists for FIJA and similar organizations by distributing Jury Rights pamphlets outside criminal courthouses around the country.
But don’t kid yourself. Be very aware that you can still be wrongly accused, arrested, charged and prosecuted for alleged “jury tampering” or for “trespassing on federal property” or even for passing out pieces of paper “without a permit” at the whim of any arrogant judge who thinks his godlike power in the courtroom is more important than any “search for justice” in which you may sincerely believe. The judge and the prosecutor are all too often partnered in a “search for convictions.”
In January of 2019, two activists in Colorado who were distributing jury nullification leaflets to pedestrians near a courthouse were arrested and charged with seven counts of criminal jury tampering even though they were not targeting any jurors on any specific case. It’s an old repression gimmick used all over the country.
In April, a jury rights activist in New York City is heading to trial after being arrested last year under a law “that makes it a crime to talk about judicial proceedings within 200 feet of a courthouse” even though no specific proceeding was ever mentioned. He was merely distributing information about the concept of jury nullification. Apparently, anyone can make up any law and then arrest you for breaking it.
And lest we forget, a whole book was written about jury rights legend Julian Heicklen and his small band of Tyranny Fighters who were heckled, harassed, hounded, arrested, abused, prosecuted and jailed, with Heicklen himself being injected more than once with powerful antipsychotic drugs, for having committed the “crime” of peacefully dispensing flyers about the general theory of jury nullification on public sidewalks to people passing by who voluntarily chose to accept them.
So be careful out there. To libertarians and everyone else who believe in freedom of speech little could be more ironic than getting arrested on Jury Rights Day or any other day for simply exercising our freedom of speech. Power will never willingly give up an ounce of its power.
Book Break: Your Libertarian Opinionizer’s Pick
There are many books on the market today about jury nullification. This one by Houston, Texas trial lawyer Clay S. Conrad has been the gold standard since its publication in 1998.
The current edition is published by the libertarian Cato Institute and is available in hardcover, paperback and Kindle. This classic work covers the theory of the concept, its history, and the legal, practical, social and political implications of its application in the real world.
Jury Nullification is one way to help quash irrational and immoral victimless crime laws. Trust a fully informed jury of your peers, not an ever more authoritarian government.
The Importance of Jury Nullification
For libertarians and all justice-seekers, the question remains: Why should a person be punished for breaking an obviously unjust law?
The law, remember, isn’t “their” law, it’s “our” law. Jury nullification is the last line of defense exercised by moral citizens against the professional law-imposers who think they possess some divinely superior wisdom that magically soars high above simple common sense. We desperately need jury nullification, now and forever, as a bulwark against our “betters” who egregiously impose victimless crime laws on us at the drop of a gavel.
Nullify, nullify, nullify until the law is changed or abolished! Jury nullification is an excellent means of educating America to the libertarian conviction: If there is no victim there is no crime. There is no moral obligation to obey an immoral law.
References and Links
- Fully Informed Jury Association Their Mission is nonpartisan: “FIJA empowers jurors to uphold individual rights and liberty by instilling in them a rich understanding of their protective role, including jurors’ right to refuse to enforce unjust law.”
- Definition of Jury Nullification Findlaw explains jury nullification in simple, direct English beginning with: “Jury nullification might sound like a convoluted concept in an already confusing legal system, but the idea is actually quite simple.”
- For or Against? This article’s author is against jury nullification while the vast majority of the Comments disagree with him. If you have concerns about jury nullification both the article and the responses are a “must read.” (Click 121 Responses)
- Democracy Defined Campaign We’re not alone! This in part is the UK’s version of FIJA. Trial by jury began in the UK with the Magna Carta in 1215 and the jury nullification of government abuses through bad laws became established as a logical consequence.