Jury nullification in America

Last month, a man named Alvin Schlangen was tried in a Minnesota court for violating a state law against the sale of raw milk. The case against Schlangen, which dealt with what reasonable people will recognize as a relatively inconsequential transgression, was made on the basis of a series of raids of the farmer’s property. These raids produced evidence proving that Schlangen was, in fact, guilty of the crime. In a surprise maneuver, however, Schlangen’s jury decided to nullify the case by simply declaring that he was not guilty.

Interestingly, this case of jury nullification is not an isolated incident. In recent months, a number of juries across the nation have practiced nullification, especially in cases involving non-violent drug offenders. In New Hampshire, for example, a Rastafarian man named Doug Darrell, who had been growing marijuana in his backyard for purposes of personal consumption, was brought before a jury on felony drug charges. The evidence against Darrell was substantial; he had been clearly in violation of the law. Nonetheless, his jurors—who found themselves morally opposed to the sort of law that would send a peaceful man to prison—explicitly decided to nullify the case against him by finding him not guilty. “I knew that my community would be poorer rather than better off,” one juror explained afterward, “had he been convicted.” Similar cases have arisen in Montana and Kansas as well, where juries have even refused outright to consider drug charges against non-violent offenders.

In fact, the United States actually has a history of jury nullification. The practice, which appeared in the years leading up to the American Civil War, originated as a means of moral opposition to the Fugitive Slave Act of 1850. It resurfaced later when, in the early 20th century, as many as 60 percent of Prohibition-era alcohol control cases ended in acquittal. In both of these cases, the practice of jury nullification—which functioned in the short term as a safeguard against sending non-violent men to prisons and plantations—served as an important outlet for societal discontent with local and national legislation. It was something of a safety valve for citizens who felt that their values were no longer being reflected by the laws or the leaders of the land.

It would be irresponsible, however, to suggest that Americans have always practiced nullification in the name of liberty and defense of freedom. It is no secret that, in the late 19th and early 20th centuries, murderous racists and lynch mobs were often found innocent of their inexcusable and morally repugnant crimes by fair-skinned Southern juries. Although this arguably does not fit the definition of jury nullification per se, it is at least a de facto implementation of the practice and therefore complicates its history in America. And, although most citizens would recognize all the difference in the world between a non-violent religious use of marijuana on the one hand and a race-riot lynch mob on the other, it brings us to a recognition of the fact that the practice of jury nullification is simply a tool; whether it does good or bad depends only on how those who wield it at any given time decide to use it. (In this respect, though, it is no different from the law itself).

Although judges and legal scholars take a variety of positions of the subject of jury nullification, the validity of the practice is usually said to follow logically from several aspects of our judicial system. The first of these is that members of a jury cannot be punished or reprimanded for any of the decisions that they deliver. The second is contained in the double jeopardy clause of the Fifth Amendment, which basically states that an individual who has already been acquitted of a crime cannot be tried again on the basis of that same crime. Thus, although there is no positive justification for jury nullification—i.e., although there is no explicit enumeration of the practice or delegation of it to the jury—it is typically defended as a direct consequence of the intersection of these two realities.

Of course, the practice can be defended on a natural rights basis too. Any self-owning individual, coerced into jury duty under a legal and judicial system to which he never gave his voluntary and express consent in the first place, can, being in no legitimate way bound by the logic or authority of the court, decide to deliver any verdict that he pleases. He can decide not to deliver one at all, or even to up and leave the courtroom altogether. Although this approach has an intellectual and philosophical appeal, its validity is not likely to be recognized by any court, to say the least. It is therefore, somewhat strangely, not particularly useful outside of scholarly debate and essays by Lysander Spooner.

That this is true is perhaps reflected, albeit indirectly, in the general unwillingness of judges to inform juries as to the option of nullification. In fact, the justice system in general seems opposed to allowing open discussion on the issue. A man named Julian Heicklen, for instance, has been repeatedly arrested for distributing literature on jury nullification outside of courthouses, despite the fact that no law against such behavior exists and that he is well within his First Amendment rights to do so. Separately, Attorney Erick J. Haynie has said, “It is highly questionable whether jurors should be instructed to ‘make’ the law when a legislative body has already done the job for them. Congress and the state legislatures have superior expertise, resources and perspective to make macro-social decisions, and much more time to reach a well-reasoned decision than does a ‘group of twelve citizens of no particular distinction snatched away from their primary vocations’ to spend a couple of days in court.”

It does not take a law student or professional, however, to point out that Haynie’s argument begs the question. It is precisely the point of jury nullification that it exists as a final refuge for juries whose Congressional and state legislatures have faltered and been misled, in all of their superior wisdom, toward macro-social decisions that the macro-society itself actually wishes to reject. As such, the practice of jury nullification, regardless of its advisability in any particular scenario, is a real and relevant phenomenon, and its resurgence warrants our attention and consideration.