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Opinion The uncomfortable link between jury empowerment and bigotry


Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week, we’re talking about jury nullification. Need a primer? Catch up here.

David Neiwert is Pacific Northwest correspondent for the Southern Poverty Law Center and author of several books, includingAnd Hell Followed With Her: Crossing the Dark Side of the American Border.”

Do ordinary people serving on juries have an inalienable, God-given right to throw out the law if they think its outcome is “unjust”? Or is this legal concept — known as “jury nullification” — really just an assault on the rule of law itself?

New Hampshire may be putting these questions to the test as a bill essentially encouraging such “nullification” of the law makes its way through the state legislature. If it passes, jurors would be instructed before cases that if “a guilty verdict will yield an unjust result, you may find the defendant not guilty.”

Jury nullification has been gaining in visibility because of the debate over marijuana legalization. Its reemergence was signaled by a 2011 New York Times op-ed that advocated nullification in court battles over marijuana arrests, which disproportionately affect young black men. A 2012 case, in which a New Hampshire man accused of growing marijuana was found innocent by a local jury, is widely regarded as an instance of nullification and has provided much of the fuel for the legislation in that state.

Prosecutors have too much power. Juries should rein them in.

In this context, the concept has a fairly benign appearance, one that appeals to 21st-century civil libertarians. But it also has a long and very dark history — a history that is not only recent but also ongoing, in that many of the same anti-democratic forces behind its origins are very much involved with its current iterations. Moreover, it has most often been viewed as a malfunction of the law, not as a principle to be embraced.

“Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court,” said federal judge Jose Cabranes in a 1997 ruling that concluded that jurors who reject the law should not be allowed to serve. The appeals court upheld the ruling but determined that only “unambiguous evidence” of a juror’s disregard of the law can justify dismissal.

Other jurists have been equally clear about the actual standing of jury nullification:

According to then-Colorado judge Frederic B. Rodgers, “It is a recipe for anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established law.”

Jury nullification has been promoted in previous decades by far-right extremists who sought to “nullify” a variety of federal laws by encouraging jurors not to enforce them — cases have involved civil rights laws, tax statutes and criminal acts by white perpetrators against black victims. Nullification was avidly promoted in the 1960s by Ku Klux Klansmen eager to have their fellows escape justice for hate crimes, and in the 1990s by members of the anti-government “Patriot” movement, particularly so-called “Freemen” in Montana who promoted the “sovereign citizens” ideology.

The leading proponent of jury nullification is a Montana-based outfit called the Fully Informed Jury Association, which has attracted a substantial audience among libertarians and drug-war critics (a small splinter group, also based in Montana and with a similar name, was overtly extremist and closely associated with the Montana Freemen). Though it presents itself as an educational organization, in reality, FIJA’s origins and orientation are extremist and built on long-rejected legal theories adopted from the old Posse Comitatus movement.

Jurors need to take the law into their own hands

The Posse and their followers, who preached that taxes were illegal and that the IRS was an unconstitutional body, became extremely frustrated in the 1970s as their followers received hefty sentences for their mounting tax violations. Convinced that the legal system itself was corrupt and would never allow their view of constitutional law to see the light of day, they developed the idea of organized jury nullification: If they couldn’t get the courts to change, all they had to do was get one or two jurors to hang up the process.

As the Posse mutated into the Christian Patriots, who then became merely “Patriots,” their theories were more widely distributed. Jury nullification played a prominent role in several of the court cases involving “Patriot” movement leaders who were arrested for various crimes in the 1990s, including the 1996 trial of leaders of the Washington State Militia on charges of bomb building and conspiracy. Militia sympathizers attempted to hand out copies of the “Citizens Rule Book,” a pamphlet distributed by the FIJA and other Patriot organizations that attempts to detail reasons juries should see themselves as “above the law.” Similar tactics came into play in the 1997 trial of three terrorist militiamen in Spokane, Wash., who called themselves the “Phineas Priesthood.” A first trial ended in an 11-1 hung jury, forcing a second trial that produced three convictions and life sentences.

This kind of history makes clear that jury nullification isn’t merely about freeing up the rights of ordinary citizens and letting them apply their personal consciences to the law; it is also a deceptive front for enabling criminality in the name of racial and religious bigotry. It claims to be about civil rights, but it really is about freeing people up to violate the law and the civil rights of their fellow citizens with impunity.

In giving every juror the power to overturn democratically enacted laws on his own prerogative, jury nullification is essentially an attack on the rule of law itself. It is a stalking horse of an idea, a toxic concept wrapped in benign, feel-good clothes. The agenda it hides would wreck our system of law while claiming to save it.

Explore these other perspectives:

Paul Butler: Jurors need to take the law into their own hands

Glenn Harlan Reynolds: Prosecutors have too much power. Juries should rein them in.

Clay Conrad: History is clear: Juries were supposed to be able to overturn laws