In an opinion article in the Washington Post, attorney Clay S. Conrad touched on a sensitive topic to the legal establishment: jury nullification. The idea, which Conrad describes as “the right of jurors to refuse to convict in cases in which they believe a conviction would be unjust,” is as old as the jury system itself, and has been under fire from judges and prosecutors for nearly as long.
Jury nullification is an ancient part of a larger individual right: the right to refuse to cooperate when government demands you do its bidding. It is, simply put, the right to say “no,” and it is at the heart of the idea of liberty.
At every opportunity judges have restricted the jury’s right to nullify, even in places like New Hampshire, where the libertarian-leaning legislature wrote the right into their state’s law. In other jurisdictions, many jurors do not even know such a theory of law exists, and lawyers are not allowed to tell them.
To the legal establishment, this makes sense. They have developed a set of laws and procedures. Your job as a juror is to listen to the facts and process them mechanically to see if they match the thing the law has proscribed. Your opinion of the law’s justness is not required or invited.
It is a good system, and it usually works out as well as any criminal justice system in the world. Its only flaw is that American jurors are not automatons. They are citizens of a nation that values liberty. Many people are indifferent to what the machinery of government does, and will acquiesce in a great many things as long as these things do not affect them personally. Ask them to be a part of that machine, though, and many people will think deeply about the justice of the thing for the first time. That can spell trouble for a government if the people think it has overstepped its bounds.
Forcing People Into State Service Works Poorly
In American history, very few government actions have demanded citizens’ participation. The populace often poorly received those few. In 1850, Congress enacted a Fugitive Slave Act that brought average Americans in contact for the first time with a federal government they previously had only encountered when they went to the post office or answered a census.
In requiring local officials to participate in capturing and returning escaped slaves, the act made many northerners with lukewarm sentiments about slavery look the institution in its face. It was easy for them to ignore injustice in another state. Now, by forcing them to become agents of that injustice, the federal government made abolitionists out of many northerners who would otherwise have ignored the horrors of slavery.
Historians often cite the Fugitive Slave Act as one of the polarizing incidents that led us into Civil War a decade later. That war also saw, on both sides, another instance of the government compelling citizens to do its bidding: the military draft. Many citizens agreed with the justice of their side’s fight in that war, but were not eager to participate in it.
The Confederacy was the first to pass conscription, in 1862, and the Union followed the next year. Most men complied, but there was resistance, most famously in New York City’s draft riots of 1864. Again, the people were happy to acquiesce to a government policy—pursuing victory in the Civil War—but looked at it more critically when asked to be the instrument of that policy.
Since that time, American government has grown in scope and power, but there are still few acts that require the average citizen to participate against his will. One exception, the military draft, became accepted as an emergency measure with the rise of mass armies in the twentieth century. Since the end of the Vietnam War, draft registration has become a formality and no one has actually been compelled to serve against his will. Some in Congress have questioned whether registration is even still necessary.
Americans Don’t Like Being Told What to Do
Jury service is one of the few things required of a citizen by the mere act of existing. States require car insurance and driver’s licenses, but only if you want to drive a car. Many municipalities require you to keep your home up to certain standards, but if you don’t like that, you don’t have to live there.
Even paying income taxes is only required of you if you earn income—admittedly, not something most of us can afford to opt out of, but it is an option nonetheless. Much of the controversy around Obamacare stemmed from the requirement that all citizens, regardless of any action they have or have not taken, must purchase health insurance.
Americans don’t like being told what to do, and we have long held an essential part of our liberty to be the right to say “no.” All governments do things some of their citizens object to, but when those citizens are not directly involved, they often do nothing to stop it. They may vote against the proponents of such a policy, but they do not start a revolution over every disagreement. They ignore it, and implicitly consent.
When that same government makes the average citizen an instrument of that policy, however, the citizen might think harder about it, and remember that consent may be withdrawn. When a criminal law is unjust, or when the punishment for violating it too harsh, the jury cannot be expected to become a part of that injustice.
Liberty Requires Trusting People
In taking back the government’s power for themselves, jurors have at times used their liberty for ill rather than good. As Conrad notes in his piece, “racist jurors routinely refused to convict lynch mobs and racist murderers.” This is true, and is an example of why liberty requires personal virtue to avoid a descent into mere anarchy.
As Conrad notes, those unjust results were also partly caused by a system that allowed only whites to serve as judges, prosecutors, law enforcement, and on juries. Jury nullification reclaims a right of the people, but to be just it must reclaim that right for a jury selected from all the people, not just those of one race or class.
Whatever the opinion of the legal establishment, whenever the government conscripts its citizens and compels them to carry out its will, there will be resistance. Whether explicitly authorized or furtively practiced, jury nullification will never disappear, and will never be without controversy. Like all exercises of liberty, it requires us to trust in the people that they will take their right seriously and exercise it virtuously.
That trust, and doubts about it, pose the central question of liberty and democracy. If we believe the people are entitled to liberty, we must trust them to exercise it, whether in the voting booth or the jury box.
