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Jury Nullification: A Crucial Check on Government Power

by Christopher Zoukis

The power of government in everyday American life cannot be overstated. In the criminal justice setting, the government is essentially all-powerful. When accused of a crime, a citizen faces arrest at the hands of armed police, incarceration in government-owned jails (for the most part), and prosecution by government-funded prosecutors in courtrooms overseen by government-paid judges. But there is a crucial check standing between the accused and the full might of the government: the jury.

Traditionally, jurors make credibility determinations and weigh evidence on the way to reaching a verdict. A jury has an age-old right, however, to acquit a defendant regardless of evidence of guilt—jury nullification. This occurs when a jury reaches a “not guilty” verdict despite its belief in the defendant’s guilt. In effect, the jury nullifies a law it believes unfair or unjust.

People who have never heard of jury nullification typically wonder whether juries really have such power. The answer is yes; juries have the power to nullify. Once a jury reaches a “not guilty” verdict, it cannot be questioned by any court, and the double jeopardy clause of the U.S. Constitution bars retrial on the same charge. Whether juries have the right to nullify is a separate question, but they most certainly have the power to do so.

Reason profiled multiple instances of jury nullification nationwide in a December 12, 2017 report. In El Paso, Texas, Police Chief Greg Allen is dialing back arrests for marijuana possession in amounts of four ounces or less, choosing instead to refer these cases for fines and community service. Allen is not doing so because he supports legalization; he says there is no point in making these arrests when they have “no end result of conviction because of jury nullification.”

In Laurens County, Georgia, a jury refused to convict a man who faced up to five years in prison for selling a small amount of weed to an undercover cop. According to the Atlanta Journal-Constitution, the officer assumed an accent “straight out of Cheech and Chong” and pestered Antonio Willis until he sold him a few joints. The evidence was clear: Willis sold him the pot. But after 18 minutes of deliberation, the jury came back with a verdict of not guilty. Tom McCain, executive director of Peachtree NORML, an organization advocating for the repeal of marijuana prohibition, approved of the decision.

“A jury in Middle Georgia returned a ‘not guilty’ verdict in a marijuana sale case despite the evidence,” commented McCain. “The verdict can be nothing other than Jury Nullification.”

Jury nullification is not limited to unpopular drug laws. In New York, a jury nullified the government’s attempt to squash political protests with criminal charges. Four defendants who protested the piloting of Reaper drones from Hancock Field National Guard Base were charged with obstructing governmental administration, disorderly conduct, and trespass. According to the Upstate Coalition to Ground the Drones and End the Wars, a juror approached defendant Brian Hynes after the verdict and said, “I really support what you are doing. Keep doing it.”

The power of the people, in the form of jury nullification, is a crucial check on overreach and abuse by the state. However, as powerful as jury nullification is, it has its limits. Jury nullification must be viewed within the larger context of the criminal justice apparatus as a whole. The overwhelming majority of criminal cases—some estimates put the figure at 95 percent or more—are resolved through a plea agreement. Plea deals often result from overcharging in the first place coupled with the use of scare tactics by prosecutors, so the jury has no role in such cases. Moreover, jury nullification cannot erase the trauma of arrest, nor can it restore time lost in a county jail.

Nevertheless, jury nullification remains a potent counterbalance to an intrusive and heavy-handed government. Rice University Professor William Martin observed, “Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage.” He added, “But even if the numbers remain small, their impact can ripple outward.” 


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