Ethics in a Democracy and Jury Nullification

On "All Things Considered" on Sunday, May 29, on National Public Radio, a listener, Tom Kimmel of Tucson, Arizona, asked what his options are if he gets called to serve jury duty but disagrees with the law. Host Jennifer Ludden and New York Times Magazine ethicist Randy Cohen tried to answer Kimmel's question, which was prompted by an experience he had while serving on a federal jury during a trial of defendants on drug charges, whose only "crime" seemed to be being in the wrong place at the wrong time while a drug transaction took place. (That is, they had no active participation in the drug offense itself.)

Cohen, who I find interesting because sometimes I agree with him and sometimes I disagree with him, said something in response to Kimmel's question with which I profoundly disagree:

Some people believe in something called jury nullification, that you have a right when you're in that jury room to simply say, 'I don't like the law, i'm going to ignore the judge's instruction, and I'm just not going to follow the law.' I do not believe that. We're a nation of laws and you do not have an ethical right to accomplish in the jury room what you fail to do at the ballot box.

When you live in a democracy, you're governed by any number of laws that you think are imperfect. There are many laws, I'm sure, for each of us and for each of our listeners that they think are deeply foolish laws, but you cannot simply ignore them when you're on jury duty.

But Tom has slightly more options than he allows himself. One of the things he can do is he can hold the prosecutor to the highest possible burden of proof. Sometimes he can seek a lower offense to charge the person with. Often you have those options. You have a duty as a juror to be an active juror, a vigorous juror and to really demand the most of the prosecution, and if you think there is reasonable doubt, then acquit. But you can't simply ignore the law, and you can't lie about that to get on the jury.

Cohen has it exactly backwards. Jurors have a moral obligation to judge both the facts and the law in a criminal case, as well as the conduct of prosecutors that might be considered an unjust application of the law. Juries routinely refused to enforce the fugitive slave laws, for instance, in the years leading up to the Civil War. Would a thinker like Cohen say that juries had an ethical obligation to uphold such "imperfect" laws in the face of morally grotesque slavery, because they had failed to repeal them "at the ballot box"?

Cohen may not realize it, but he disagrees with a long heritage of moral and ethical reasoning when it comes to thinking about jury nullification.

I first wrote about this topic way back in 1993, when I wrote a long letter to the Washington Blade showing how jury nullification could be a tool for resisting unjust sodomy laws, which were still on the books in a number of states and upheld (at the time) by the U.S. Supreme Court in Bowers v. Hardwick, the 1986 case later reversed by the Court in 2003 in Lawrence v. Texas.

I took that letter to the editor and revised it into an opinion article, which appeared, in slightly different form from what is reprinted below, in the Northern Virginia Sun in February 1994. When this was published, I was serving as vice chairman of the Libertarian Party of Virginia:

Jury "Nullification"--An Important Bulwark of Liberty
Richard E. Sincere, Jr.

The Virginia General Assembly has been considering legislation to permit juries, while deliberating the sentence to be passed on convicted felons, to hear about the criminal records of defendants. The purpose is to make sure that juries have full information before passing judgment. This particular proposal is worthy of consideration but it does not, however, go quite far enough. Virginians who care about justice should join in the call for "fully informed juries," a call to return to our country's long tradition, now sadly losing its pre-eminence, that casts jurors as the protectors of liberty against repressive state action.

As Thomas Jefferson put it, "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution." The Webster's Dictionary current in Jefferson's time defines a jury as a group of citizens empaneled to judge both the facts and the law in both civil and criminal cases. Jury "nullification," or the voiding of a law by juries who judge it to be immoral or repressive or simply wrong, is part of our legal heritage.

President John Adams once noted that "It is not only [the juror's] right, but his duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." As recently as 1972, the D.C. Court of Appeals ruled that the jury has an "unreviewable and irreversible power ... to acquit in disregard of the instruction on the law given by the trial judge. The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law." Two famous cases illustrate the importance of jury nullification.

William Penn, the Quaker leader, was charged in an English court with unapproved preaching of a non-established religion. The judge told the jury that since the facts were clear, they must return a conviction; if they did not convict Penn, the judge said, he would hold the jury in contempt of court and send the jurors to jail. Yet, at great personal risk to their safety and liberty, these jurors—who knew that the English tradition gave jurors the right to judge the law as well as the facts—refused to convict Penn.

About a century later, New York printer and publisher John Peter Zenger was hauled into court and charged with printing seditious reports about government officials. The law and the facts were clear; Zenger had indeed criticized the officials. Again, the jury, knowing its rights, refused to convict Zenger.

These two cases provided the foundation for the freedom of religion and freedom of the press clauses in the U.S. Bill of Rights. By rejecting these repressive laws and refusing to use them to convict righteous citizens, the juries weakened the laws and began the chain of events leading to legislative recognition of citizens' natural right to religious and political dissent. Jury nullification strengthens constitutional protections of minorities against the caprice or malice of political, ethnic, or sexual majorities.

Unfortunately, contemporary judges seldom inform jurors of their right to judge the law in a case; prosecuting attorneys often object to defense lawyers who try to inform jurors of their rights, and judges almost as often sustain these objections.

Should anti-abortion protesters be convicted under RICO, a law designed to combat organized crime? Juries can decide. Should AIDS patients or cancer victims who use therapeutic marijuana to relieve their pain be convicted of violating federal drug laws? Juries can decide. Should anti-war protesters who engage in dramatic and symbolic action at the Pentagon be convicted of unlawful demonstrations? Juries can decide. Should law-abiding gun owners be forced to register their weapons or obey the "one-gun-a-month" law? Juries can decide. Should angry taxpayers who withhold money from the IRS because of the government's wasteful spending go to jail? Juries can decide.

Since jury nullification is such an important tool in combatting repressive laws, Virginians in the tradition of Thomas Jefferson—as Governor Allen, for instance, describes himself—should support legislation that will require judges to inform jurors of their full rights. In this, they can be guided by a model bill written by the Fully Informed Jury Association (FIJA), which has worked to get such requirements placed into the laws of several states.

By rendering repressive laws unenforceable, juries can perform an important function in preserving and expanding liberties for all Americans.

In looking up the URL for the Fully Informed Jury Association (FIJA), I learned that it is also now known as the American Jury Institute (AJI) and I discovered that my old friend, Nancy Lord Johnson, who was the 1992 Libertarian Party vice-presidential nominee, serves as the organization's vice chairman. Clay Conrad, author of the book, Jury Nullification: The Evolution of a Doctrine, is chairman. (Glenn Reynolds published a review of Conrad's book in the Cornell Journal of Law and Public Policy, which is available on his Instapundit blog.)

I hope that Randy Cohen looks further into jury nullification and reverses his opinion of it.

I do agree with Cohen on one matter, however. It would be wrong to lie about your beliefs -- whether of jury nullification in general or in regard to a particular law -- in order to get on a jury. If asked directly in voir dire, tell the truth. But if not asked directly, there is no reason to volunteer the information. This is a case in which "don't ask, don't tell" is appropriate, ethical, and moral.