A specter is haunting the courtrooms of the United States—the specter of jury nullification. All the powers of the United States legal system have entered into an unholy alliance to exorcise this specter: judge, prosecutor, and legal scholar, “conservative” and “liberal” alike. What is jury nullification, and why do so many people in positions of power in American jurisprudence either refuse to speak of it or openly attack it?
Jury nullification is a centuries-old practice that exists in many countries. In the U.S., it is a highly contested but historically legal practice with pre-Revolutionary roots in English common law. A law is said to be “nullified” in a particular case when a jury refuses, or is unable, to apply it as written by lawmakers or described to them by prosecutors and judges. Cases in recent years involving issues from drug offenses to climate change protests and even the January 2021 riot at the Capitol have stirred up interest in, and debate over, jury nullification.
Nullification in a Nutshell
“The judge can come outside and speak to me.” This is what Keith Eric Wood told a Mecosta County, Michigan, sheriff’s deputy who stopped him from handing out a pamphlet titled Your Jury Rights: True or False? in front of the courthouse in 2015. District Judge Peter Jaklevic had requested Wood’s presence in his courtroom ahead of a jury trial that was set to begin that day in a local land owner’s land use dispute with a state agency.
Wood entered the courthouse under threat of arrest. Though he was initially told he was not being detained, he was soon arrested for jury tampering, at Judge Jaklevic’s order. Wood was held on $150,000 bond, tried, convicted, and sentenced to spend eight weekends in jail. Wood argued that he had a First Amendment right to share information in front of the courthouse; the prosecutor countered that he was intending to influence jurors. Wood appealed. In July 2020, the Supreme Court of Michigan overturned his conviction. People v. Wood, 114 N.W.2d 494 (Mich. 2020).
This Michigan case is but one recent example that the Fully Informed Jury Association (“FIJA”) has pointed to as part of a longstanding movement aimed at leveling the playing field between those who hold the gavel and the rest of us. FIJA defines jury nullification in its strictest sense as the process of a jury returning a Not Guilty verdict in a case in which jurors believe beyond reasonable doubt that a defendant has broken the law. Another form of nullification happens when one or more members of a jury refuse to join in a majority’s decision to convict, despite compelling evidence that a law has been broken, thereby producing a hung jury. Jurors who prevent the required unanimity based on moral or ethical objection to the law or to the prosecution—rather than it being based on doubt about whether the law was actually broken—are said to nullify the law. The result of a unanimous Not Guilty verdict is that the defendant is acquitted and the case cannot be appealed, whereas a hung jury does not deliver a verdict, leaving the case open for retrial.
Either of these versions of nullification may happen for a variety of reasons. Jurors may believe that the law in question is unjust or immoral as written. Likewise, they may decide that the law is being inappropriately or unfairly applied to the defendant in a particular case. Or they may believe that the law should not be applied to the case at hand for other reasons and decide to take a stand against the choices and instructions of the prosecutors and judges involved by refusing to convict. In some cases, relatively rare in the United States, when the jury knows what the penalty is likely to be if they convict, they may decline to do so in order to spare a defendant what they believe is an excessive or cruel punishment—despite being convinced beyond reasonable doubt that the defendant did in fact break the law.
Jurors cannot be punished for nullification, though judges throughout history have attempted to do so. And the Fifth Amendment’s prohibition against double jeopardy means that a defendant acquitted through jury nullification cannot be retried on the same charges. So, according to FIJA and others who advocate for it, the practice of jury nullification is a powerful tool that ordinary citizens who end up on juries can use in the fight against oppressive laws and overzealous prosecutors.
An Ongoing Constitutional Controversy
It is generally accepted by legal scholars and historians that jury nullification was consciously built into U.S. constitutional law. The ability for jurors to, in some sense, judge the law itself—in addition to, or entirely separate from, the facts of a particular case—was understood by the Framers of the Constitution to be a fundamental and important part of the process of trial by jury. Many writers frame jury nullification as a right of the people that is inherent in common law and at least implied in the Constitution. Yet over the years this “right” has been continuously eroded, and indeed, many modern legal scholars challenge the notion that such a right ever existed in the way that FIJA and other contemporary supporters of nullification assert.
Despite judges and other authorities attempting to quash the right of jurors to nullify, the establishment of nullification as a clear power of juries goes as far back as “Bushel’s Case,” a 17th century English case involving jurors in the trial of William Penn, the Quaker leader who went on to emigrate to North America and founded the colony of Pennsylvania. Penn and another Quaker leader were accused of having preached their version of the Gospel in a Quaker meeting, which was illegal at the time under English law in service to the Church of England. Jurors refused to convict him, despite having been instructed and then commanded by the judge in the case to deliver a guilty verdict. The judge then had the jury held in jail and withheld food and water, trying to force them to concede and rule according to his wishes. Juror Edward Bushel refused to pay the fine that the judge attempted to levy. Bushel then filed a successful writ of habeas corpus and was freed. The charges against Bushel and the other jurors were eventually dropped in a ruling that is widely understood to have cemented the autonomy of the jury from control by either judge or prosecutor as a fundamental principle of common law. This autonomy, in Bushel’s Case, clearly includes some version of the power to nullify.
However, supporting the majority of contemporary judges and prosecutors, and contending that their approach aligns with at least a century of well-established legal precedent, critics of the modern jury nullification movement in the U.S. contend that while juries may technically have the power to nullify, there has never been a clearly established legal right to nullification that citizens sitting on juries enjoy. This doctrine prevails, since at least the late 19th century. For many decades, individuals who publicly advocate for nullification—particularly in or near courtrooms and courthouses—face censure, arrest, and prosecution for attempting to inform potential jurors, or their fellow members of a sitting jury, of the existence of jury nullification and their ability to vote their conscience individually and collectively, regardless of the law and/or judges’ and prosecutors’ instructions.
Don’t Ask, Don’t Tell: The Erosion of Jurors’ Ability to Nullify by the Judiciary
In the United States, there has been a somewhat gradual transition from the wide acceptance among judges and politicians of some version of a “right” of juries to nullify towards the more modern concept of nullification as a grudgingly-at-best acknowledged, ancient but abiding power that juries may sometimes wield, albeit only in extraordinary circumstances. Of note is that judges are under no obligation to disclose or discuss with juries the power to nullify, and in fact should do their utmost to restrain, or even punish, the exercising of said power. This transition seems to have paralleled the growing complexity of the law as the territory and the population of the country expanded exponentially throughout the 19th century. As the legal profession became increasingly complex and lawyers and judges alike became more and more specialized, the gap between the detailed specifics of legal information and the knowledge base of even the most well-educated, highly informed citizens who were not lawyers or judges themselves widened. As the law itself, at all levels, and the conduct of legal proceedings in both civil and criminal trials, became more complex and formalized, the idea that ordinary citizens could possess the understanding of legal matters needed in order to “judge the law” seems to have become less realistic—in the minds of most judges and prosecutors, at least.
One case that provides a lens through which to look back at this evolution is United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), a case in which a group of anti-Vietnam War protesters broke into a Maryland Selective Service office, stole draft records, and burned them in public using homemade napalm. Civil rights attorney William Kunstler, arguing in the protesters’ defense, made a motion that the court should instruct the jurors on their right to nullify, hoping to appeal to the jury and, through them, to the wider U.S. public on behalf of the protesters’ assertion that their actions, though technically illegal, were morally justified as civil disobedience against the government’s pursuit of an unjust and illegal war. In denying this motion, the U.S. Court of Appeals for the Fourth Circuit cited a long litany of cases, including the most impactful Supreme Court case on the subject of nullification, Sparf and Hansen v. United States, 156 U.S. 51 (1895).
In Sparf, the Supreme Court was asked to consider several factors in a complex murder trial that had multiple defendants. One of those factors was whether the lower court had instructed the jury properly as to their role. The defendants argued that the judge in the criminal trial had improperly pressed the jury to deliver a guilty verdict and, furthermore, had failed to allow for the possibility that the jury could, if they saw fit, find one of the defendants guilty of a lesser charge than murder. The Supreme Court sided with the lower court, asserting that the judge in the case had correctly instructed the jury as to how to apply the law to the facts of the case on this particular point. They further ruled that, contrary to the assertion of the defendants’ counsel, the judge was under no obligation to give the jury any instructions about the possibility of convicting the defendant on a lesser charge, in part because facts in the case did not allow for the possibility of such a ruling, and in part because the U.S. Constitution and federal statutes do not provide for the jury in a criminal case to make such determinations about the law itself. Such determinations of law, the court asserted, are for judges alone to make.
In an extremely lengthy process of citing precedents for the anti-jury nullification section of the Sparf decision, Justice John M. Harlan, writing for the majority, went beyond noting previous opinions that aligned with the majority to assailing an opinion that has long been considered by nullification advocates to be the strongest assertion of the jury’s right to nullify in U.S. legal history—Chief Justice John Jay’s statement on jurors’ rights and duties in the civil case Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794). In doing so, Harlan noted that Brailsford was a civil case and therefore should not, in his view, be considered relevant for criminal matters. Harlan even went so far as to question whether Jay’s opinion in the case had been recorded properly.
In denying Kunstler’s motion for nullification-oriented jury instruction in Moylan, the Fourth Circuit judges issued one of the clearest expressions of the type of caveat that routinely comes into play over the last 120 years. While the judiciary repeatedly performs the juggling act of acknowledging the force of human liberty, history, and precedent that adheres to the practice of jury nullification, it has also continuously moved to restrict it. The Moylan Court put it like this: “We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”
The Court then immediately made an about-face and quoted from Harlan’s lengthy, “scholarly” opinion as to why the notion of a right to nullification must be dispensed with and the power itself restricted as much as legally possible: “Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence”
Going further in some ways than Harlan in raising the alarm against the supposed breakdown of public order and democratic institutions if civil disobedience by way of jury nullification were allowed to flourish, the Fourth Circuit judges in Moylan concluded: “To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.”
The Risks for Jurors
Inspired and informed by the strong opinions in Sparf and a number of more recent cases such as Moylan, the decades-long legislative campaign by the judiciary and their collaborators to deny juries their ability to nullify continues. One case that illustrates the modern trend of judges exercising their power against jurors who aim to nullify—and the courts backing each other up on it—is the dismissal of a juror in a drug-crimes case, United States v. Luisi, 568 F. Supp. 2d 106 (D. Mass. 2008).
As described in a 2009 article in the Harvard Law Review after Robert Luisi was initially convicted by a federal jury in the U.S. District Court for the District of Massachusetts on drug possession charges, the First Circuit “found that the judge’s instructions to the jury were erroneous, vacated Luisi’s conviction, and remanded his case to the district court.” According to the Review, during jury deliberations in this second trial, juror Thomas Eddlem “objected to the relevant drug laws, denying that the Constitution empowered Congress to ban drug possession” The presiding judge instructed the jury that the laws were constitutional, and they were not to decide questions of law. But Eddlem continued to insist that “the trial, charges, and jurisdiction were invalid.” The judge found that Eddlem was engaging in “juror nullification” by refusing to apply the laws as instructed and dismissed him from the jury. The remaining jurors convicted Luisi, who at that point chose not to appeal again
The Luisi case illustrates the dominant trend in U.S. jurisprudence with regard to jurors who make a clear and explicit case for nullification while seated. Nonetheless, as with Bushel and company back in the 1600s, when legal action that goes beyond dismissal is taken against them by prosecutors and judges, jurors and advocates for jurors’ rights almost always win. Thankfully, cases of jurors themselves actually being punished for advocating or attempting nullification are relatively rare in the United States. FIJA counts only two, at least in modern U.S. history. Still, both cases are significant, in terms of the charges brought and the jurors’ ultimate victories.
Laura Kriho a Colorado drug policy reform and marijuana legalization advocate, was the lone holdout juror in a 1997 methamphetamine possession case, People v. Brannon. She had serious doubts about the material allegations against the defendant, but she also expressed concern and informed her fellow jurors about the penalty the defendant was facing, criticized the law itself, and promoted the prospect of her fellow jurors joining her in nullifying the law on one of the charges against the defendant. The jury foreman ratted her out to the judge, who declared a mistrial and slapped Ms. Kriho with charges including perjury and contempt of court. She was convicted on contempt of court and fined $1,200, but the case was overturned on appeal in 1999. The most outrageous and potentially damaging charge against Ms. Kriho, in terms of jurors’ rights, was the accusation of perjury, which the judge brought against her for failing to inform the court of her views on drug policy during the jury selection process—despite the fact that she was never asked a question on the topic
The only other case cited by the FIJA is that of Carol Asher, a juror in a 2005 Idaho criminal case involving possession of around $5 worth of meth. Asher was not the only juror holding out for a Not Guilty verdict, but she clashed with the jury foreman over the judge’s instructions and the letter of the law, as well as over circumstantial evidence in the case. Asher held her ground, asserting that she answered to what she considered to be a higher power than the judge and must follow her own conscience—and the split jury resulted in a mistrial. The foreman took her comments in deliberation up with the judge, and Asher found herself charged with perjury, risking 14 years in prison if found guilty. Luckily, the charges were “hastily dismissed in 2006 after an evidentiary hearing,” according to FIJA’s website
The Risks to Nullification Advocates
While the situations Kriho and Asher found themselves in were extremely difficult, with the State threatening severe penalties in both cases, such recriminations against jurors remain exceptional. More often, in recent decades, it is those who advocate in public for jurors’ right to nullify—or even just for their right to be informed of their right to nullify—who are the primary targets for State repression. For a prime example, we need look no further than United States v. Heicklen 858 F. Supp. 2d 256 (S.D.N.Y. 2012), in which lifelong civil rights and civil liberties advocate Julian Heicklen was arrested and charged with jury tampering for distributing literature advocating nullification outside the United States courthouse for the Southern District of New York in Manhattan
Julian Heicklen, an elderly man at the time, had been harassed by law enforcement for months for maintaining a lonely vigil, rain or shine, holding a sign that read “Jury Info” and distributing FIJA pamphlets. Heicklen, a veteran of 1960s era civil rights campaigns and a longtime civil liberties agitator, was apparently such a threat to the powers that be with his little yellow pamphlets that prosecutors had to call in the FBI. On May 25, 2010, an undercover agent, allegedly posing as a potential juror, asked Heicklen about the pamphlets; after he delivered a brief soliloquy on the history and usefulness of nullification, Heicklen was arrested and charged with jury tampering. Heicklen spent over a week on Riker’s Island until he was arraigned. He was indicted by a federal grand jury, but on April 19, 2012, a District Court judge granted Heicklen’s motion to dismiss the charges. (Heicklen died this year, at 90, March 11, 2022. He was eulogized with a lengthy obituary in the New York Times)
In a similar case that drew national attention, FIJA activists Eric Brandt and Mark Iannicelli were arrested for handing out jury nullification pamphlets on July 27, 2015, outside the Lindsay-Flanigan Courthouse in Denver, Colorado. The two were charged with seven counts of jury tampering each. FIJA lawyers immediately filed a First Amendment lawsuit against the City of Denver on the activists’ behalf. In December 2015, a U.S. District Court judge ruled that the pamphlets were indeed protected free speech. The city appealed, and eventually, the case made its way to the Colorado Supreme Court. The Court’s decision in Brandt and Iannicelli’s case set an important precedent. See People v. Iannicelli, 449 P.3d 387 (Colo. 2019). In a 5-2 ruling, the Court found that in order to commit jury tampering under the Colorado statute, “a person must attempt to communicate with a juror, directly or indirectly, with the intent to influence that juror’s vote, opinion, decision or other action in a specifically identifiable case,” according to Denver’s NBC 9 News
Handing a pamphlet to a juror or potential juror with general information about jury nullification in no way meets that statutory definition, according to Colorado Supreme Court Justice Richard Gabriel, who authored the majority’s opinion in the case He wrote that “Iannicelli and Brandt never asked individuals entering the courthouse whether they were serving on a specific jury. They only asked generally whether those entering the building were reporting for jury duty (e.g., they apparently asked, ‘Are you here for jury duty?’ or ‘Are you a juror?’).” If someone said yes, “Iannicelli and Brandt would give them one or more pamphlets discussing the concept of jury nullification. At no time did Iannicelli or Brandt attempt to discuss a particular case with any of the jurors they met, nor did their literature address any specific, identifiable case. Indeed, Iannicelli and Brandt do not appear to have been concerned with any particular case. Rather, their sole motive appears to have been to provide information about jury nullification generally”
The Dark Side of Jury Nullification
Some of the systemic hostility to the practice of jury nullification comes from the dark side of its history in the U.S. Nullification of one form or another has historically been practiced by communities bent on maintaining the status quo at all costs, particularly in terms of racial hierarchy. In the late 19th and early 20th centuries, jury nullification in cases brought against white individuals or groups related to lynchings and other white supremacist violence in the Jim Crow South and elsewhere around the country prompted activist Ida B. Wells and groups such as the National Association for the Advancement of Colored People (“NAACP”) to push for a federal anti-lynching law. The first version of such a law—the Dyer Anti-Lynching Bill—was drafted in 1918 But a federal anti-lynching bill remained in legislative limbo for eight decades, due to the glacial pace of change on issues of racism at all institutional levels. A bill was finally signed into law as the Emmett Till Antilynching Act, this year on March 29, 2022.
The name of this law is no coincidence. Sidney Carlton, defense attorney for the two white men who murdered 14-year-old Emmett Till in 1955, made one of U.S. history’s more blatant appeals for jury nullification when he told the all-white Mississippi jury in the case: “I’m sure every last Anglo-Saxon one of you has the courage to free these men.” And, in fact, the jurors did. Within a year, the two murderers gave a detailed confession in the form an interview that was published in a national magazine. Jury nullification, backed by the 5th Amendment’s prohibition against double jeopardy, protected them from further prosecution
Jury nullification’s historical association with violent, even murderous movements, including white supremacist and vigilante elements, did not end in the 1960s. In a March 2022 opinion piece for CNN, scholar and political analyst Nicole Hemmer writes, “What was true in the Jim Crow era remained true in the decades that followed,” citing juries’ refusals to indict or convict Ku Klux Klan and American Nazi Party members for the shootings of five Communist Workers Party demonstrators in Greensboro, North Carolina, in 1979, as well as “subway vigilante” Bernhard Goetz for his shooting of four Black teenagers in New York City in 1984. Hemmer describes jury nullification as a key aspect of the long historical pattern of governments in the United States, including the federal government, failing to hold violent extremists—particularly white supremacists—accountable for murderous violence against minorities and political enemies.
Hemmer’s view of jury nullification as a tool of anti-democratic forces aligns with the view of many in academia, as well as the courts. A 2000 article from Case Western University Law Review is indicative of this viewpoint that many who study the history and modern practice of law have adopted in support of the dominant position on nullification expressed by the courts in recent decades In the article, entitled “Nullifying History: Modern-Day Misuse of the Right to Decide the Law,” legal scholar David A. Pepper makes the case that the jurors’ “right to decide the law” as advocated by modern jury nullification proponents is fundamentally different from that understood and practiced by the legislators, judges, lawyers, and jurors of the founding generation of the United States. He presents evidence, from court decisions to the writings of the Founders themselves, to support his claim that the modern construction of jury nullification advocated by FIJA and others is much more sweeping and, he alleges, anti-democratic than the “power to nullify” that is the actual historical and legal basis for understanding jury nullification
Pepper argues that a “right” to nullification as advocated by modern proponents is equivalent to juries taking on a legislative role, which inevitably leads to nullification undermining democracy itself, as defined by citizens voting for representatives who make laws that are then enacted by the executive branch and interpreted by the judiciary. Citing a litany of case law and other historical sources, Pepper makes a compelling argument that what the Founders conceived of as the “law-finding” power of a jury—which, he acknowledges, clearly included the power to nullify, at least in certain extraordinary circumstances—should best be understood as “a jury working hard to interpret, construe, and follow the law, whether it was the common law, or a given statute, or possibly higher law” with nullification as a sort of power of last resort, reserved for extreme cases of injustice or abuse of the law by authorities.
Jury nullification has long been a political rallying point for many far-right groups. This is, in part, due to the long history of its usefulness to their causes and also because of its association with the “originalist” interpretation of constitutional law favored by many on the political right, including those who argue for a historical right to nullify that runs contrary to the hundred-plus year status quo as expressed by Pepper’s paper. This trend continues today. The internet and rightwing-aligned media are alight with calls for nullification in a spate of cases in the last couple of years, from militia members charged in an alleged plot to kidnap Michigan Governor Gretchen Whitmer to individuals arrested and charged with a variety of crimes in cases related to the January 6, 2021, Capitol riot
Jury Nullification in the Struggle for Freedom
Despite the taint of association with racism and terrorism, jury nullification also has a long tradition as a tool of people fighting for freedom. One of the most famous instances of jury nullification in U.S. history comes from the period of political turmoil in Britain’s North American colonies during the decades prior to the Revolution. This case, the most well-known and precedent-setting of many instances of jury nullification that occurred during that turbulent time, is Crown v. John Peter Zenger, alternately cited as Rex v. Zenger (1735). This was the 1735 trial of a printer who was charged with printing seditious libels against the Governor of the Colony of New York, William Cosby.
Zenger, who was a tradesman and one of the few skilled printers in the region, did not write the offending tracts. Rather, it appeared that the colonial government went after him in an effort to deprive the newspaper that published the articles in question, the New York Gazette, of the ability to continue publishing by removing its one and only printer—essentially silencing a primary voice of public dissent. Despite the fact that Zenger did print the alleged libels and his defense attorney admitted as much in his closing arguments, the jury returned a verdict of Not Guilty. This victory was considered a tremendous upset for the British colonial powers and became a legal cornerstone in the constitutional foundations of both freedom of speech and freedom of the press in the colonial territories that went on to become the United States of America
Modern advocates of jury nullification also cite its use by Northern juries in cases tried under the Fugitive Slave Act of 1850 as a classic historical example of the positive power of nullification. The Act was an attempt by the federal government to find common ground with Southern slaveholders and the legislators who served them who were hellbent on preserving their “peculiar institution” of chattel slavery against the rising tide of anti-slavery agitation, direct action, and legislation in the mid-19th century. Those efforts most famously included the Underground Railroad and other organized efforts to free enslaved Africans and guide them to safety in states where slavery was illegal
The grassroots movement to help people escaping from slavery involved many people, from ordinary working class and poor folks to public officials of all sorts, including sheriffs and magistrates. Many of these people were not part of the organized Abolitionist direct action campaigns but nonetheless aided and abetted formerly-enslaved people who were on the run from their captors and torturers. In both “free” states and the country’s contested Western territories, these collaborators actively and passively helped to undermine the institution of chattel slavery by providing direct aid and shelter, as well as simply looking the other way or refusing to perform their official duties when called upon to do so in service to captors trying to recapture their human “property.”
The Fugitive Slave Act of 1850 designated federal courts and federal marshals as the primary arbiters of the process of capturing and returning “person[s] held to service or labor” to “the person or persons to whom such service or labor may be due” The Act included text warning local officials at all levels, in free states and in the territories, not to interfere with the federal courts’ and federal marshals’ slave-catching activities or risk facing jail time and stiff economic penalties. The Act also commanded the federal marshals to deputize any and all persons they deemed necessary to assist them in the process of hunting, capturing, and handing over alleged escaped slaves to their alleged owners. People chosen by the marshals and their deputies to assist them in this process were legally mandated to do so.
Even in the face of the federal government’s violent enforcement of the Fugitive Slave Act, people of all walks of life refused and resisted the efforts of the captors, and under the Act, many were arrested and tried. Abolitionists agitated for jurors in these cases to refuse to convict anyone—formerly enslaved persons or those who helped them gain their freedom—being tried before a jury on these types of charges. And many juries did just that. Abolitionist members of Vigilance Committees took direct action to free recaptured ex-slaves from federal marshals and local officials. They challenged the law by breaking it intentionally, and jurors in many cases backed them, sitting in moral and political judgement against a law that so violently upheld an institution they deemed to be anathema in a “free” society.
One such militant Abolitionist who was tried for a “crime” he committed in violation of the Fugitive Slave Act was Boston clothier, state representative, Underground Railroad conductor, and Vigilance Committee organizer Lewis Hayden On February 15, 1851, word got out in the community that former slave Shadrach Minkins had been kidnapped from his job as a waiter by federal marshals and was due to appear for a mandatory federal Fugitive Slave Act commission hearing at the Boston courthouse. Hayden and 15-20 others, backed by a mob of hundreds of Black and white Abolitionists protesting loudly in the street outside, burst into a Boston courtroom and freed Minkins from his captors by force.
The incident created a nationwide stir, with then-President Millard Fillmore threatening to send federal troops into Boston to enforce the terms of the Act. As an August 26, 2014, article in the Niagara Falls Reporter describes it, “Nine men total were arrested for aiding in the rescue of Shadrach Minkins, seven of whom—five black and two white—would be charged, with their trials scheduled to begin in May of 1851.”
The Reporter describes the results of the government’s efforts: “Those trials resulted—to the government’s great chagrin—in seven consecutive acquittals or hung juries. The highly public failure on the part of the government to secure even a single conviction of any of those suspects, with most if not all of those failures resulting from jury nullification, made the Fugitive Slave Law almost unenforceable”
Secretary of State Daniel Webster, a principal architect of the slaver-appeasing Compromise of 1850, of which the Fugitive Slave Act was the most important part, had staked his presidential aspirations on championing the Act. He called Shadrach Minkins’ rescue an act of treason. Abolitionist jury nullification in his home state of Massachusetts proved hugely embarrassing for him and ultimately derailed his presidential campaign
Minkins was spirited away by the Underground Railroad and made it to Canada, where he lived out his life in freedom. Hayden went on to become one of the first two Black men elected to the Massachusetts State Legislature, alongside his fellow Abolitionist and Vigilance Committee member Edward G. Walker, who also aided in Minkins’ escape. Actions like Minkins’ liberation were repeated across the free states. Attempts to enforce the Fugitive Slave Act and resulting waves of political agitation, civil disobedience, direct action, and jury nullification by Abolitionists against such enforcement were key contributing factors to the breakdown of the Compromise of 1850, which led to the Civil War and, finally, the Emancipation Proclamation and the 13th Amendment’s abolition of most forms of involuntary servitude—with the exception of prison slavery
Nullification Here and Now
The Abolitionist movement’s tactical use of jury nullification may represent a kind of historic high-water mark for its conscious and deliberate deployment in service to organized movements for freedom. However, contemporary advocates for the cause of more fully informed juries claim that nullification—organized or not—pops up all throughout the historical record, in circumstances of popular resistance as well as instances of government over-reach and prosecutorial abuse. Writing in an April 2016 Washington Post op-ed advocating for a return to the early 19th century style practice of nullification, lawyer and author Clay Conrad argues that from the Revolutionary War era onward, juries have used nullification to shape the canon of the law and the course of history: “American juries would go on to use nullification to avoid sentencing minor felons, and even some murderers, to death (giving rise to the degrees of felonies that exist today). Juries refused to convict those who helped slaves escape and refused to convict labor organizers. As many as 60 percent of juries refused to enforce the Volstead Act, leading to the end of Prohibition. Jury nullification led to recognition of battered spouse syndrome, and jury refusal to convict Vietnam War protesters helped bend public policy against that war”
Similarly, public interest attorney Jordan Paul, opining in an October 2021 piece for Balls and Strikes on the need for a popular revival of jury nullification to counter the ever-increasing power of judges and prosecutors, makes the case for nullification as a positive force for liberty in American history: “The erosion of the right to jury nullification matters because historically, the prosecutions that have been subject to nullification are those that jurors, for political or moral reasons, did not agree merited criminal punishment” He goes on to cite a list of historical instances of mass nullification similar to Conrad’s, adding an anecdote about nullification’s perceived rise in response to the modern incarnation of the War on Drugs: “In 2010, a Montana state court judge presiding over a case involving marijuana charges worried he wouldn’t even be able to seat a jury after so many prospective jurors brought up nullification during the selection process. The prosecution eventually felt compelled to offer the defendant a plea deal rather than go to trial.”
One staunch contemporary advocate for the tactical use of jury nullification in organized resistance to legislative, judicial, and prosecutorial abuse is former Washington, D.C. prosecutor Paul Butler. Butler, who is African American, advocates an organized, system-wide “Black power” approach to jury nullification as a way for ordinary citizens to fight back against the Drug War’s devastating effects on Black communities in the United States. In an ongoing, decades-long campaign, Butler has advocated in print, in classrooms, on the internet, and on television for Black people to use nullification to defend their families, communities, and individual liberties against a system that is built to over-police, over-prosecute, and over-incarcerate African Americans
In a 2016 interview for Vox, Butler explains how he learned firsthand as a young prosecutor about the Black community’s grassroots resistance to Drug War devastation via jury nullification: “I was warned by the experienced prosecutors that there would be cases involving nonviolent drug offenses in which no matter what my evidence was or no matter how good my trial skills were, the jury would acquit. And the reason they would is because they didn’t want to send another young black man to jail or prison. This was at a time when most of the jurors in the District of Columbia were African American. When I started trying cases, that was exactly what happened. I knew the defendant was guilty, and the jurors would have to know it, too. But in nonviolent drug cases, they would frequently find the defendant not guilty”
Writing from his vantage point as a “recovering prosecutor” in Prison Legal News [See: PLN, June 2008, p. 14] Butler described his simple, straightforward proposal for building a grassroots movement of resistance to Drug War laws and mass incarceration: “I suggest that citizens be educated about nullification, and that they be encouraged to consider it in non-violent drug cases. Here’s the idea: … [t]o protest this senseless and very expensive mass incarceration, I call for ‘Martin Luther King jurors.’ They would engage in strategic jury nullification designed to safely reduce the number of people in prison for non-violent drug crimes, and to send the message that ‘we the people’ ain’t gonna take it anymore. Like the ‘creative disobedience’ that Martin Luther King used to advance civil rights, strategic nullification would be a powerful call for change.”
Drilling down into the specifics, Butler continued: “My proposal is that Martin Luther King jurors vote ‘not guilty’ in cases in which a defendant is accused of possessing drugs for his or her own use, or selling a small quantity of drugs to another consenting adult. In cases of violent crime, or selling drugs to minors, jurors should convict, if they are persuaded beyond a reasonable doubt that the defendant is guilty. This strategic nullification is legal, and already proven to work. During Prohibition, when it was against the law to sell or manufacture liquor, jurors frequently nullified when people were charged with those crimes. Their actions were credited with helping end that ‘War on Liquor.’ Martin Luther King jurors could have the same impact on the present War on Drugs.”
As hinted at in the methamphetamine-related cases of jurors Kriho and Asher as well as Conrad’s Montana marijuana anecdote cited above, nullification, in one form or another, seems to be on the minds of many people who find themselves caught up in the havoc the Drug War wreaks on individuals, families, and communities. It is not just jurors in devastated communities of color who are trying to vote their conscience in these types of absurd, destructive cases.
At the same time, it is unclear just how many cases that arrive at what may appear to be some form of nullification—hung juries and acquittals—are really about jurors consciously and deliberately choosing to exercise their power of nullification. In a 2003 study published on the Cornell University Law Library website, lead authors Paula Hanaford-Agor of the National Center for State Courts and Valerie Hans of Cornell Law School analyzed data from 372 felony jury trials in four state courts. They found that a conscious and deliberate effort at nullification seemed unlikely in the vast majority of cases. The study’s abstract explains their conclusions: “Jurors’ opinions about the fairness of the law proved to be related to trial outcomes. However, case characteristics, particularly the strength and credibility of trial evidence, were the strongest predictors of verdicts. The authors conclude that jury nullification is an unlikely factor in the vast majority of jury trials. When juror attitudes about legal fairness do play a role, they most likely do so by affecting how jurors perceive and interpret trial evidence, rather than by leading jurors to intentionally disregard the governing law.”
Beyond the Drug War
Another mode of jury nullification that has been used by activists—particularly by environmentalists in recent decades—is based on what is often referred to as the “necessity” or the “lesser of two evils” defense. The defendants in Moylan attempted a version of this with their argument that their law-breaking was necessitated by the government’s Vietnam War policies and actions. But the defense lawyers also made a direct attempt to convince the judge in the case that they should be allowed to appeal to the jury for nullification. Defendants and their attorneys who present contemporary necessity defenses tend not to use the term “nullification,” knowing all too well the consequences most judges will impose for invoking it. Instead, they aim to achieve a version of nullification by presenting an explicitly political or ethically-based defense in the hopes of convincing some or all of the jury to refuse to convict on moral, ethical, or political grounds—arriving at either a hung jury or an actual acquittal.
One recent successful example of jury nullification resulting from a necessity defense comes from Portland, Oregon. In April 2019, a group of climate-change activists affiliated with the international group Extinction Rebellion, fed up with the expansion of a local facility for hauling and processing dirty, polluting “tar sands” oil from Canada, and upset with local officials’ kowtowing to the corporation involved, Zenith Energy, staged two back-to-back blockades of railroad tracks leading to the site At their trial on first degree trespassing charges, their attorneys, supported by the Civil Liberties Defense Center (“CLDC”), presented a defense based on a plea of “not guilty by reason of necessity.” They put the coal company and its local government collaborators on trial, explaining to the jury that their clients had exhausted all available legal means of trying to persuade the corporation and the state to change course. Direct action and the “lesser evil” of breaking the law was the only option left to try to avert the greater evil of climate disaster, to which the defense claimed the tar sands coal company and its enablers in government were knowingly contributing. After five days of testimony by the defendants themselves, as well as experts on climate and environmental issues, five of the six jury members refused to convict the defendants.
In two similar, precedent-setting cases out of Washington and Minnesota, environmental activist “valve turners” who took part in coordinated, nonviolent direct actions to temporarily shut off all of the major pipelines moving oil from Canada into the United States on October 11, 2016, successfully beat a number of serious felony charges using the necessity defense In Washington, a judge denied valve turner Ken Ward the opportunity to present a climate science-based necessity defense in his initial criminal trial. Despite this, his legal team was still able to present some information about the effects of climate change on the region in which he committed the “crime” of turning off the pipeline—Skagit County, Washington. In Ward’s initial trial, the jury deadlocked on the felony charges. The jury in Ward’s second trial again deadlocked on the more serious felony charge that remained but convicted him of second-degree burglary. Despite once again denying his attorneys’ request to be allowed to present the necessity defense, the judge in that trial sentenced Ward to just one month of community service and six months’ probation, against prosecutors’ goal of 20 years in prison. Ward’s lawyers and the CLDC appealed his conviction, and according to Clean Technica “The Supreme Court of Washington ruled [in September of 2019] that the trial judge erred by refusing to allow Ward to plead that his actions were necessitated by the refusal of duly constituted authorities to take appropriate action to address the existential crisis presented by an overheating planet.” At this time, presumably due to COVID-19 delays, Ward’s third trial has not yet begun.
Regarding the legal precedent set by the state supreme court in Ward’s case, a September 2019 news article on the CLDC website quotes Executive Director Lauren Regan as saying, “This victory upholds the right of a defendant to assert the necessity defense to the charges brought by the State and also strengthens the essential role that a jury of community members will play in determining whether the accused should be found guilty or not” Three valve turners in Minnesota set a similar precedent there when the Minnesota Supreme Court ruled that they, too, must be allowed to present a climate emergency-based necessity defense. As Regan states, “The valve turner actions, and the subsequent legal battles led by the CLDC, have expanded the law regarding the necessity defense and will be important tools for activists for many years to come. With catastrophic climate change looming, it is time for the people to be able to decide who the real criminals are: the greedy corporate profiteers poisoning the water and destroying the planet or the regular people who are willing to stand up to defend our communities. The necessity defense places that power in the hands of jurors, where it belongs”
The Future of Jury Nullification
FIJA and other advocates for a robust right of jurors to nullify unjust, misused, or abused laws face an uphill battle against a deeply entrenched U.S. civil and criminal justice system that has embraced a much more circumspect idea of nullification’s place in the practice of law. Despite this, whether they do so in an organized and conscious manner or not, jurors continue to arrive at nullification in a variety of cases.
Another mode of nullification that seems likely to be more prevalent than many realize is exemplified by the 2012 case of California defendant William Lynch Lynch, who was 44 years old at the time, had been charged with assaulting an elderly priest whom he accused of abusing him as a child. The priest, Jerold Lindner, denied the accusation and claimed he didn’t even remember Lynch, despite Lynch receiving a 1998 settlement of $625,000 from the Jesuit religious order over the abuse.
Lynch claimed he was trying to get Lindner to sign a confession in order to “draw attention to the cause” of victims of sexual abuse by priests when Lindner “leered” at him in the manner he had done while abusing Lynch. Confessing his actions in court, Lynch admitted he had assaulted Lindner and apologized for it, saying he had lost control of himself when he began punching the older man, and he recognized that his actions were wrong. The jury acquitted Lynch of the most serious charges of felony assault and elder abuse and deadlocked on the lesser charge of misdemeanor assault. The prosecution, which accused Lynch of “vigilantism,” acknowledged the pain and suffering Lynch had endured and the lifelong struggle for healing that he testified to in court, but it appealed to the jury to not let the lawlessness of the assault go unpunished. The jury apparently arrived at its own version of a “lesser of two evils” approach to nullification in this case.
In November 2021, jury nullification advocates from FIJA again highlighted the case of Keith Eric Wood After his 2020 free speech victory in the state’s Supreme Court Wood filed a federal lawsuit against the judge and prosecutor, alleging malicious prosecution and conspiracies to interfere with civil rights, among other violations of his rights. The case remains pending.
Signs point to jury nullification continuing to sharpen as a tool of change-seeking activists, especially abolitionists. On January 5, 2022, a FIJA social media account announced: “We’ve got our first likely #jurynullification case of 2022 on the books….” The post was in reference to a news story from England about four protesters found not guilty of criminal damage for their part in toppling the statue of Edward Colston, a 17th century slave trader, during a 2020 protest, and rolling it into the Bristol Harbor
The prosecution in the case argued that who Colston was should have been irrelevant. But the defense lawyers appealed to the jury. According to a report in the Irish Times “the court heard Colston was involved in the enslavement and transportation of more than 80,000 people, of which almost 10,000 were children,” and that an “estimated 19,000 died on ships bound for the Caribbean and the Americas.” The jury also heard about campaigns to remove the statue in Bristol, which date back to the 1920s. The jury refused to convict.
Writing in the Tennessee Journal of Race, Gender, & Social Justice, author Dave Hall provides a simple and eloquent rationale for all types of nullification and for the expansion of the practice of jury nullification within the American legal system as a whole He cites several examples of different types of jury nullification and examines the moral, philosophical, and legal justifications for each, concluding that juries can, should, and in fact must nullify when, as Hall puts it, “justice requires it.” Hall argues that the quest for justice underpins the American legal system and also that justice as “arbiter” and “weighing method” is the “business of the courts.” He goes on to write: “Given its special prominence in justifying the business of the courts and its utility in guiding the courts’ decisions, the question of required justice is surely adequate to the task of determining the propriety of nullification, too.”
Addressing the possibility of nullification as the people’s weapon against racist policing, prosecution, and mass incarceration, as Paul Butler advocates, Hall suggests that “[t]he health of the American legal system depends on the notion that 12 ordinary people are capable of applying the law to the facts and returning a just verdict. It is therefore not a bridge too far to suggest that those same 12 people are also able to determine when and whether justice requires a particular decision” He goes on to suggest a structural remedy for the contradictory problem of the jury’s power to nullify versus the assertion of a right to nullify: “Every pattern jury instruction should therefore come with the clear proviso that the jury’s job is to apply the law to the facts and then come to whatever decision it determines is required by justice. Such a proviso would clarify the jury’s proper role, bring it into alignment with the goals and methods of the rest of the justice system, and begin to address the rampant racial inequality Professor Butler and others seek to remedy”
Hall concludes that “[b]ecause the power to nullify is intrinsic to the jury, and because its exercise has the potential to fight systemic injustice in a way few other mechanisms can, juries ought to use their power of nullification rather than let this important mechanism for administering justice be wasted through disuse. In the present state of the system, it isn’t only a good idea: justice requires it”
J.D. Schmidt is a freelance writer, editor, and activist based in North Florida. Prior to embarking on his freelancing career, he worked in the grassroots nonprofit sector for many years. He is a lifelong organizer for social justice.
Sources: The Oregonian, The Washington Post, Vox.com, Niagra Falls Reporter, CNN, cleantechnica.com, The Guardian, Tennessee Journal of Race, Gender, & Social Justice Vol. 9 Issue 2 2020, Seattle Weekly, cldc.org, opb.org, scholarship.law.cornell.edu, avalon.law.yale.edu, irishtimes.com, mlive.com, FIJA.org
| Cite | 3 U.S. (3 Dall.) 1 (1794) |
|---|---|
| Level | Supreme Court |
