Journalist, Political Reporter, Cultural Critic, Editor/Proofreader
Alex V. Henderson
Philadelphia, PA
vixenatr
July 5, 2012
By Alex Henderson
RealmNoir, July 5, 2012
Many Americans are unfamiliar with the concept of jury nullification, which refers to jurors refusing to convict a defendant if they believe the charges to be unconstitutional. But thanks to a law that was recently passed in New Hampshire, more jurors in that state might become acquainted with the concept.
On June 18, New Hampshire Gov. John Lynch signed into law HB 146, which says that during a trial, defense attorneys in that state are allowed to inform jurors of their right to nullify a law. What are examples of jurors practicing jury nullification? Let’s say, for example, that a defendant is on trial for operating a prostitution ring, selling allegedly obscene adult films, or growing marijuana; a juror who considers prostitution laws, obscenity laws or drug laws to be unconstitutional and believes that the defendant never should have been arrested in the first place will refuse to convict him/her on the grounds that the charges are unconstitutional. With jury nullification, the juror is not trying to determine guilt or innocence, but rather, is judging the law itself. And while jury nullification won’t automatically result in an acquittal, it can result in a hung jury and a mistrial (which means that the prosecutor may or may not decide to re-try the case).
HB 146 is being applauded by some right-of-center libertarians; Tim Lynch of the Cato Institute, for example, has spoken out in favor of the law. Over the years, a long list of libertarians (including Rep. Ron Paul, Lew Rockwell, Walter E. Williams, talk show host Alex Jones and Libertarian Party presidential candidate Gary Johnson) have been proponents of jury nullification in drug cases. But one needn’t be a libertarian to support jury nullification; some liberals and progressives are proponents as well, including George Washington University law professor Paul Butler (author of the book Let's Get Free: A Hip-Hop Theory of Justice). Butler, who is African-American, has been quick to point out that the War on Drugs is not only bad policy—it is also racist, given how many people of color have suffered from it. And Butler has been encouraging African-American jurors to refuse to convict nonviolent African-American defendants in drug cases. In 2009, Butler wrote: “I have jury duty on July 2, and I can't wait. If I get put on a jury in a non-violent drug case, I'll vote ‘not guilty,’ based on my principles—even if I think the defendant actually did it.”
While liberal/progressives and right-wing libertarians have some sharp differences when it comes to economics, HB 146 is one thing they should agree on: jurors need to be aware of their option to nullify, especially in light of the fact that per capita, the United States incarcerates more people than any other developed country. One of the main reasons for that is the abovementioned War on Drugs, which has been an abysmal failure; people of color have been disproportionately affected by draconian anti-drug laws. And thanks to the disturbing growth of privatized for-profit prisons, the prison/industrial complex has an incentive to become even more vampiric.
Jury nullification has its critics, who argue that nullifying creates a state of anarchy in courtrooms. Some critics of jury nullification will point out that back in the 1950s and 1960s, all-white juries in the Deep South acquitted white defendants of violent crimes against African-American civil rights activists when they knew perfectly well that the defendants were guilty. So yes, jury nullification can be abused in some cases. But it’s important to look at the big picture, and the fact is that jury nullification, if properly applied, is a positive.
Before the Civil War, jury nullification was applied in opposition to the Fugitive Slave Act of 1850 (which said that one could face six months in prison and a $1000 fine for offering food and shelter to a runaway slave). The Fugitive Slave Act of 1850 was an appalling piece of legislation, and jury nullification occurred when abolitionist jurors refused to convict defendants who were on trial for helping runaway slaves.
During Prohibition, jury nullification occurred when jurors refused to convict defendants who were prosecuted under the Volstead Act of 1919 for the illegal distribution and sale of alcohol. Prohibition, of course, was a disaster—and jurors who hated Prohibition practiced jury nullification by refusing to help put people behind bars for selling beer (violations of the Volstead Act were punishable by a $1000 fine, imprisonment for up to six months and forfeiture of any vehicles used to distribute alcoholic beverages).
Opponents of jury nullification will argue that instead of nullifying, civil libertarians should go about trying to change laws they disagree with. But until those unjust laws are changed, defenders of civil liberties need to use every tool that is available to them—and that includes jury nullification. One organization that has supported jury nullification as a means of combating unjust laws is the Montana-based Fully Informed Jury Association (FIJA), which was co-founded in 1989 by Larry Dodge (former head of the Montana Libertarian Party). Although co-founded by a libertarian, FIJA has a diverse membership that includes not only libertarians, but liberals and progressives as well.
The subject of jury nullification was examined by the U.S. Supreme Court in the 1895 case Sparf v. the United States. That year, the High Court acknowledged the constitutionality of jury nullification but ruled that judges were under no obligation to inform jurors of their right to nullify. However, the Sparf ruling did not say that judges couldn’t tell jurors about their right to nullify—only that they weren’t obligated to bring it up. Nor does Sparf specifically prohibit defense attorneys from mentioning it, which means that New Hampshire law HB 146 does not contradict the Sparf decision.
When jurors find themselves being asked to help imprison people for things that should not be illegal, they need to nullify.
If the defendant is on trial for running a call girl operation, nullify.
If someone operating a porn company is battling obscenity charges, nullify.
If someone is facing the possibility of a long prison sentence for growing marijuana plants in his/her back yard, nullify.
Let’s hear it for jury nullification. Let’s hear it for New Hampshire law HB 146.
Alex Henderson is a veteran journalist whose work has appeared in The L.A. Weekly, AlterNet, Billboard, Spin, XBIZ, Creem, Skin Two, The Pasadena Weekly, JazzTimes, Cash Box and a long list of other well-known publications. He can be followed on Twitter @alexvhenderson.
George Washington University law professor Paul Butler (above) and Rep. Ron Paul (below) are among the proponents of jury nullification.
Copyright 2022 Alex V. Henderson. All rights reserved.
Alex V. Henderson
Philadelphia, PA
vixenatr