So why do judges continue to get jury nullification wrong? Many point to an 1895 case in which the Supreme Court ruled that judges aren't obligated to tell jurors of their power to nullify bad law. Some have wrongly interpreted that decision to invalidate the doctrine of jury nullification altogether. They're mistaken.Whether nullification is truly a right is debatable, but its existence as a historical (and legitimate) power of juries is unquestionable. But even if nullification were illegal, it could be justified as a form of civil disobedience. After all, why be complicit in the punishment of an innocent, or the disproportionate punishment of the guilty? Throw mandatory minimum sentences into the works, and you can create an even stronger argument for informed jurists with the power to nullify unjust laws.
In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that "juries are not bound by what seems inescapable logic to judges." And in 1972, that "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."
Indeed, Americans can be proud of our history of boldly and valiantly standing up to unjust laws (if not so proud of the laws themselves). There are multiple cases of jurors refusing to convict violators of the Alien and Sedition Act (search), the Fugitive Slave Act (search), and alcohol prohibition laws, among others.
Now that the Supreme Court ruled that federal prosecutors can continue to arrest medical marijuana patients, and given the Drug Enforcement Administration's continued prosecution of pain patients and the doctors who treat them, we're likely to see more outrages like those perpetrated against Ed Rosenthal and Richard Paey.
A common question I get from people disturbed by these kinds of cases is, "What can we do?" Well, here's one thing the average citizen can do: Serve when you're called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he's guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with "not guilty," no matter what the judge, the prosecutor, or the evidence says.
Not only is this your right as a juror, some would say it's your obligation.
Feb 2, 2010
Radley Balko on your obligation to nullify
When might jurors have an obligation to nullify? Radley Balko, libertarian activist and journalist extraordinaire, sums up the case for jury nullification in a classic article worth quoting extensively: