Jury nullification is a tool that can be utilized by a panel of jurors, to acquit a defendant that is most certainly guilty, in a case where all the evidence needed to deliver a guilty verdict is present. Some call it anarchy, others call it the purest form of justice, but it provides we the people with opportunity to look tyranny directly in the face, and overcome adversity, in a Constitutionally legal, and non-violent manner. The Federalist papers provide some insight into this little known legal maneuver, and even though the Constitution does not mention it specifically, it allows for it. It has been used throughout history for different reasons, and to different ends, but it is part of our American heritage and our constant struggle against abuse of power at the hands of government.
The US Constitution attempts to limit the power of the government through the delegation of authority to respective branches, while giving individual branches the power to override one another so that control is not centralized. It was a radical idea, that is still frowned upon even today. Some cringe with the thought that individuals would be able to carve their own path in their community, and in history. Many believe that lay people cannot be trusted with making decisions for themselves. But against all odds, the founding fathers fought for and won their independence. This led to a government, and a capitalist system that has been responsible for the highest standard of living, ever known to man. The original intention of the experiment was to avoid a dictatorship or oligarchy, by allowing representatives elected by localities to make policy collectively and giving everyone a voice through the election of individuals that are given the duty, to do the peoples’ work. It is not a perfect system, but it is the best game in town, as our founders put much thought and wisdom into our Constitutional Republican form of government. The judicial branch of the US system has been proven a powerful force in modern times, when it comes to interpreting the Constitution and the extent to which the limitations on government apply, while keeping in mind one’s individual rights and liberty. America’s legal system was founded on natural law, or God’s law, as the founding fathers believed that our rights come from our creator. Most laws however, are not concocted using a theological basis for inspiration. Sometimes there are circumstances that make literal interpretation of law unreasonable, and sometimes seemingly unfair. This can put some verdicts at the mercy of the circumstances surrounding the events in question. Then you have the potential for abuse of power that is always a distinct possibility when dealing with any government entity. George Washington once said, “government is not reason, it is not eloquence - it is force. Like fire, it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action”. Jury nullification is said to be the last line of defense against the specter of judicial tyranny. Nullification makes sense, when you break it down and use a little logic. The judge cannot direct the jury to a verdict, even if the evidence to convict is overwhelming. This is the degree of autonomy that the jury has, and this independence from the powers that be is constitutionally sound, as Article III gives the court no power to coerce or force the jury to produce a verdict that is pleasing to the judge or the court. Judges already have much influence when it comes to the fate of the accused, especially when adjudicating habeas corpus actions that challenge convictions or sentences. Contemporary reviews of these actions, are evaluated by judges as they conduct judicial inquisitions, resolving disputes without utilization of a jury. The framers of the Constitution had an affinity for jury trials and the right of an individual to be provided such a trial. It would not be likely that the framers would approve of any court proceedings involving one’s rights and liberties, being decided by a lone judge, in the absence of a jury. Some make the case that a panel of jurors, with many minds functioning synergistically, are much more difficult to bribe, payoff, or blackmail, whereas a judge may be corrupted much easier and it can be done in a more expedient manner in order to serve those that pull the strings.
Jury nullification is constitutional given the fact that the powers of the judicial branch are focused and few, and the very concept of a jury trial is based on this juror independence. Article III does not give the court the power to order a guilty verdict, as this would make a jury irrelevant. The jury is to deliver a verdict independently, so even if the evidence is overwhelming and proves guilt beyond a reasonable doubt, the defendant can walk free if the jury disagrees with the way that the law was applied in that case, on moral grounds (Lehman, 1997). In Federalist Paper No. 83, Alexander Hamilton referred to a jury trial as the, “very palladium of free government” as it acts as a tool intended to provide a check on “arbitrary methods of prosecuting pretended offenses” that act as working components of judicial despotism (Hamilton, 1788).
In order to adequately define the argument that favors the use of jury nullification in specific constitutionally relevant scenarios, one must make the case as to why the law does not exist only as a method in which to enforce universal concepts of morality for the good of society, but also as a means to impose an oligarchy’s collective world view on the masses. Those that oppose this legal concept of jury nullification, argue that it undermines the rule of law. Those that advocate for jury nullification argue that it is a last line of defense for those that are taken advantage of by an overfunded, oppressive, out of control, Federal Government that has been lawless, time and time again, with little or no consequences for the perpetrators. The level of judicial activism or legislating from the bench that has occurred in recent years, is becoming a genuine threat, as judicial rulings become an emotional response to a series of events, rather than an interpretation of constitutional law. What do we the people do, when extra-constitutional power is wielded by those that have the ability to rob us of our liberty? One usually assumes that legality is synonymous with morality. The same could be said about illegality being associated with immoral behavior. These generalizations can be misleading. Legality is relative, and law is man-made. What is legal, may be nothing more than a product of a dictator’s world view. If something is legal, it does not mean that it is a good idea, or the right thing to do. Burning an American flag is legal, but it is not generally seen as a wise or respectful move. The terms mala in se, and mala prohibita, provide relevant contrast here as some actions are universally unacceptable (murder, rape, stealing etc.). Aside from the morality standard that may be applied to some instances, there is a matter of unconstitutional laws that were enacted, using means that are at odds with our founding document. An unconstitutional law passed via the legislative process, is not valid any more than a law that is done through usurpation of power by the executive branch or other government entity that attempts to circumvent checks and balances. The supremacy clause, otherwise known as Article VI only applies to laws that are “in pursuance of”, the limitations put forth by the US Constitution, as it does not give congress the power to write legislation that goes beyond the enumerated powers that are outlined in Article I. While jury nullification is not mentioned in our Constitution, the criminal jury and its crucial role in our legal system, shows up twice in our founding document, once in the body, and again in our Bill of Rights. Article III section 2 states that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”. This sixth amendment also references the jury, stating “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”.
In order to adequately define the argument that favors the use of jury nullification in specific constitutionally relevant scenarios, one must make the case as to why the law does not exist only as a method in which to enforce universal concepts of morality for the good of society, but also as a means to impose an oligarchy’s collective world view on the masses. Those that oppose this legal concept of jury nullification, argue that it undermines the rule of law. Those that advocate for jury nullification argue that it is a last line of defense for those that are taken advantage of by an overfunded, oppressive, out of control, Federal Government that has been lawless, time and time again, with little or no consequences for the perpetrators. The level of judicial activism or legislating from the bench that has occurred in recent years, is becoming a genuine threat, as judicial rulings become an emotional response to a series of events, rather than an interpretation of constitutional law. What do we the people do, when extra-constitutional power is wielded by those that have the ability to rob us of our liberty? One usually assumes that legality is synonymous with morality. The same could be said about illegality being associated with immoral behavior. These generalizations can be misleading. Legality is relative, and law is man-made. What is legal, may be nothing more than a product of a dictator’s world view. If something is legal, it does not mean that it is a good idea, or the right thing to do. Burning an American flag is legal, but it is not generally seen as a wise or respectful move. The terms mala in se, and mala prohibita, provide relevant contrast here as some actions are universally unacceptable (murder, rape, stealing etc.). Aside from the morality standard that may be applied to some instances, there is a matter of unconstitutional laws that were enacted, using means that are at odds with our founding document. An unconstitutional law passed via the legislative process, is not valid any more than a law that is done through usurpation of power by the executive branch or other government entity that attempts to circumvent checks and balances. The supremacy clause, otherwise known as Article VI only applies to laws that are “in pursuance of”, the limitations put forth by the US Constitution, as it does not give congress the power to write legislation that goes beyond the enumerated powers that are outlined in Article I. While jury nullification is not mentioned in our Constitution, the criminal jury and its crucial role in our legal system, shows up twice in our founding document, once in the body, and again in our Bill of Rights. Article III section 2 states that “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”. This sixth amendment also references the jury, stating “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”.
There are many that feel jury nullification is a form of judicial anarchy, and that it is allows for the guilty to walk free (Conrad, 2014). Let’s look at this from a different perspective, through a prosecutor’s eyes. Do prosecutors have the ability to choose whether or not to bring charges against a defendant in cases where evidence shows proof of guilt? Of course they do, as this prosecutorial discretion is a major component of our justice system. Why should a jury made up of we the people, not have this tool at their disposal? There are a handful of states that have chosen to recognize the autonomy of a jury and their power to nullify. Georgia, Maryland, Indiana, and Oregon all have acknowledged in their state constitutions, that the jury has the power, but not the right to acquit a guilty man, and also states that jurors should not be informed by the court in advance that they can do so. The key here is that a judge cannot direct a verdict even when the evidence is present. A reversible error occurs if a judge directs a guilty verdict over an objection from the defendant.
To better understand how jury nullification applies to real life cases, one must look at instances where it was used successfully. Probably the most recent high-profile case that involved utilization of jury nullification was the Bundy Ranch standoff, where Americans came to the aid of a rancher in Nevada when the Bureau of Land Management sent armed agents to Cliven Bundy’s home and killed a portion of his cattle. Even though these Americans had taken up arms against a Federal agency, and driven them from Bundy’s land, they were acquitted because the jury refused to put up with tyranny (Ritter, 2017). Looking further back, another example of jury nullification can be found during prohibition, when about 60 percent of alcohol control laws were affected by nullification (Zubair, 2013).
Bushel’s Case, (1670) 124 E.R. 1006, is a great example of a jury that stood strong to nullify in the face of adversity. The jury would not convict Penn, even when Lord Mayo threatened to starve them if they did not deliver the verdict that he ordered. Law and legality walk a very fine moral line, and as mentioned above, legal does not always equal moral, so when a people collectively decide as a jury that there is a moral argument to be made contrary to the written law, they must act as one to uphold moral order. This means staying true to the pledge to be honest, just, and consistent in their word and deed, to exude commitment and adherence to the core value of integrity.
Just like the checks and balances that are programmed into our government system here in America, jury nullification acts as an alternative check on oppression and tyranny, that can be used by the citizenry in cases of extreme government overreach, or abuse of power. James Madison wrote in Federalist Paper No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself “(Madison, 1788). The framers knew that government would need to be on a leash, and that if an inch was given, a mile would be taken. We have seen this creep strategy over the last 100 + years in congress, the executive branch, and the judicial branch. Legislating from the bench has become quite common and the lasting repercussions regarding the rule of law can be catastrophic. Jury trials are a major component of our Constitution, our justice system, and our overall way of life as a society. One must keep in mind that if the Constitution does not give the Federal Government the power to do something or to enforce something, then that authority is automatically delegated to the individual sovereign states. Anything over and above these limitations are unlawful and should be deemed as such. The Constitution restricts government, and does not attempt to control people or restrict their actions. The American experiment, as it was realized by our founding fathers, has changed very much and Federal agencies, and bureaucrats are not hesitant to prosecute anyone if they perceive a threat to the government’s credibility or sustainability, even in cases where Uncle Sam is in the wrong. The U.S government can sometimes appear omnipotent, in that it has influence over every aspect of our lives, from our wallets, to the education of our children, and the products that we have access to when we go the grocery store. We the people, must stay vigilant and be educated as to our God given rights protected under the U. S. Constitution, and know that there will always be nefarious forces at work, trying to deny us those rights.
Sources:
Conrad, C. S. (2014). Jury nullification: the evolution of a doctrine. Washington, D.C.: Cato
Institute.
Hamilton, A. (n.d.). The Federalist #83. Retrieved October 01, 2017, from
http://www.constitution.org/fed/federa83.htm
Lehman, G. D. (1997). We the jury...: the impact of jurors on our basic freedoms. Amherst, NY:
Prometheus Books.
Madison, J. (n.d.). The Federalist #51. Retrieved October 01, 2017, from
http://www.constitution.org/fed/federa51.htm
Press, K. R. (2017, August 22). Jury refuses to convict in Bundy ranch standoff. Retrieved
October 01, 2017, from https://lasvegassun.com/news/2017/aug/22/jury-refuses-to-convict-
in-bundy-ranch-standoff/
Zubair. (2013, April). Famous Jury Nullification Cases. Retrieved October 01, 2017, from
http://infomory.com/famous/famous-jury-nullification-cases/
To better understand how jury nullification applies to real life cases, one must look at instances where it was used successfully. Probably the most recent high-profile case that involved utilization of jury nullification was the Bundy Ranch standoff, where Americans came to the aid of a rancher in Nevada when the Bureau of Land Management sent armed agents to Cliven Bundy’s home and killed a portion of his cattle. Even though these Americans had taken up arms against a Federal agency, and driven them from Bundy’s land, they were acquitted because the jury refused to put up with tyranny (Ritter, 2017). Looking further back, another example of jury nullification can be found during prohibition, when about 60 percent of alcohol control laws were affected by nullification (Zubair, 2013).
Bushel’s Case, (1670) 124 E.R. 1006, is a great example of a jury that stood strong to nullify in the face of adversity. The jury would not convict Penn, even when Lord Mayo threatened to starve them if they did not deliver the verdict that he ordered. Law and legality walk a very fine moral line, and as mentioned above, legal does not always equal moral, so when a people collectively decide as a jury that there is a moral argument to be made contrary to the written law, they must act as one to uphold moral order. This means staying true to the pledge to be honest, just, and consistent in their word and deed, to exude commitment and adherence to the core value of integrity.
Just like the checks and balances that are programmed into our government system here in America, jury nullification acts as an alternative check on oppression and tyranny, that can be used by the citizenry in cases of extreme government overreach, or abuse of power. James Madison wrote in Federalist Paper No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself “(Madison, 1788). The framers knew that government would need to be on a leash, and that if an inch was given, a mile would be taken. We have seen this creep strategy over the last 100 + years in congress, the executive branch, and the judicial branch. Legislating from the bench has become quite common and the lasting repercussions regarding the rule of law can be catastrophic. Jury trials are a major component of our Constitution, our justice system, and our overall way of life as a society. One must keep in mind that if the Constitution does not give the Federal Government the power to do something or to enforce something, then that authority is automatically delegated to the individual sovereign states. Anything over and above these limitations are unlawful and should be deemed as such. The Constitution restricts government, and does not attempt to control people or restrict their actions. The American experiment, as it was realized by our founding fathers, has changed very much and Federal agencies, and bureaucrats are not hesitant to prosecute anyone if they perceive a threat to the government’s credibility or sustainability, even in cases where Uncle Sam is in the wrong. The U.S government can sometimes appear omnipotent, in that it has influence over every aspect of our lives, from our wallets, to the education of our children, and the products that we have access to when we go the grocery store. We the people, must stay vigilant and be educated as to our God given rights protected under the U. S. Constitution, and know that there will always be nefarious forces at work, trying to deny us those rights.
Sources:
Conrad, C. S. (2014). Jury nullification: the evolution of a doctrine. Washington, D.C.: Cato
Institute.
Hamilton, A. (n.d.). The Federalist #83. Retrieved October 01, 2017, from
http://www.constitution.org/fed/federa83.htm
Lehman, G. D. (1997). We the jury...: the impact of jurors on our basic freedoms. Amherst, NY:
Prometheus Books.
Madison, J. (n.d.). The Federalist #51. Retrieved October 01, 2017, from
http://www.constitution.org/fed/federa51.htm
Press, K. R. (2017, August 22). Jury refuses to convict in Bundy ranch standoff. Retrieved
October 01, 2017, from https://lasvegassun.com/news/2017/aug/22/jury-refuses-to-convict-
in-bundy-ranch-standoff/
Zubair. (2013, April). Famous Jury Nullification Cases. Retrieved October 01, 2017, from
http://infomory.com/famous/famous-jury-nullification-cases/