Changing the World with Personal Power through Jury Nullification
I’ve been thinking about personal power lately. It started with this website about a 2,000 year-old redwood called Spooner that may be cut down by logging in interests. Activists are sitting in the tree to prevent its destruction. A legal battle ensues, of course. My question is, who are they getting to actually do the cutting?
I’m the last one to argue against private property rights and the like, but certain acts just strike me as being fundamentally wrong. Cutting down an ancient Redwood tree is one of them. Legal issues aside, I’m not sure that many people would volunteer to do the cutting. Likewise, this story about a Navy sailor whose wife may be deported while he’s deployed. Or this story about the Pedro Zapeta, an illegal immigrant whose life savings was seized as he tried to leave the US for good. Again, I am not arguing the legality of any of this, who would like to be the one to deport the sailor’s wife or steal Mr. Zapeta’s money? Not me.
In all of these cases the blame is cast off on the law or the system. Still, someone makes the final call. Someone physically fires up the chainsaw to fell a 2,000 year-old redwood. Is it you?
I do enough grouching on this blog, so today I would like to present a step in a positive direction on this issue of personal power. Every US citizen has one very special power that can make major changes: their vote, but not the one you might be thinking of.
Trial by jury is an indispensable part of our (relatively) free society. The juror is more powerful than an legislator because it is up to the juror to enforce the law. Jury nullification is the process by which a jury may find a law or its application unjust by refusing to convict. For example:
In the mid 1800s, juries in Northern states practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Act. Later, during prohibition in the 1930s, many juries acquitted individuals accused of violating alcohol control laws. In the high profile case of Dr. Jack Kevorkian, the jury acquitted Dr. Kevorkian despite the uncontroverted evidence that Kevorkian had violated Michigan law by helping the deceased commit suicide.
But:
Jury nullification has its dangers as well. For example, in the 1950s and 1960s some all-white southern juries refused to convict white supremacists for killing black individuals or civil rights workers despite evidence of the defendants’ guilt.
As you can see, serving as a juror is a real test of your personal power. You are free to cast your vote based on your convictions, whatever they may be based on.
In many part of the country, notably San Francisco, most people have fairly permissive attitudes towards marijuana use. If every jury refused to convict on marijuana charges, the law would be useless and effectively nullified. The police would still be able to arrest and harass people based on the law, but once it was clear that conviction was impossible, they would likely lose interest. This principle can be applied to any case that is brought to trial.
Everything you do has some effect on the world around you. Whether you wield a chainsaw or a juror badge, you have the power to make your convictions manifest. Though it might not be easy to defy the judge’s instructions to “consider only the facts” or your boss’s instructions to deport the wife of a sailor serving our country, you have the power to make the choice to participate or not. You might think, even if I don’t do it, someone else will. That may be true. You cannot control others, but you can control yourself.
For more information on jury nullification:
Fully Informed Jury Association
Even Fox News will tell you!
This is a message more of your people need to hear. Too many judges go out of their way to tell juries “You are to take into account only the law, not what you think is right and wrong,” which is a filthy lie designed to short-circuit the jury system. If the law were all that mattered, we could do without juries, and conduct our trials with a panel of judges like the French or the Japanese (who have a conviction rate nearing 100%.)
This is a very interesting issue and I can’t help making a comment. After 5 weeks of law school is has become apparent that very few cases ever get to juries. (btw there is a lot involved in jury instruction, it is not a black and white process). Juries actually are for specific cases; an individual right. They don’t decide on law, they only decide if a person violated the law, which doesn’t effect on any wide sweeping changes that would benefit society (unless the press gets involved in a high profile trial, but that is whole mess of a separate issue).
The real power appears to lie in the ability we have as citizens to exercise our first amendment rights to either harass our legislatures to formulate black letter law on a topic that will then have to be enforced or to intiate public policy values which in turn becomes a strong consideration for the legal system in deciding on litigation dealing with real societal value.
The system is very much in favor of following our society’s direction, but the direction needs to be there and be clear and have a strong voice. Of course, this requires motivating a generally undereducated public that would rather not get involved in anything these days.