For those of us who count ourselves part of the resistance against the Trump presidency, even the best days can feel Sisyphean. Faced with conservative control over all three branches of the federal government as well as a majority of state legislatures, progressives have precious few ways of exercising real power. But despite the magnitude of the challenge facing us, one tool remains dramatically underutilized: jury nullification.
Jury nullification takes place when a juror refuses to vote to convict a defendant, regardless of whether the facts point to guilt or innocence, because she believes the law in question is unjust or inappropriately applied, or the punishment would be excessive. Because convictions must be unanimous in federal court and nearly every state court in criminal cases, a committed juror can hang the jury, resulting in a mistrial and forcing prosecutors to determine whether the case is important enough to warrant the expense of trying again. A persuasive juror may very well convince the remaining jurors to vote not guilty, resulting in acquittal.
As Georgetown Law Professor Paul Butler writes in his groundbreaking work Let’s Get Free: A Hip-Hop Theory of Justice, nullification has a long, rich history grounded in the original purpose of enshrining a right to trial by jury in the Sixth Amendment:
People from the community — not the government — would have the final say in whether a person would be punished. Jurors were supposed to be an important limit on government power — part of the complex system of checks and balances that was designed to prevent the state from becoming too overbearing.
Professor Butler and many others have long advocated for nullification as a response to the race-based oppression of the War on Drugs. The era of mass incarceration in the United States has left us with the highest rate of imprisonment in the world, and with little good to show for it. We imprison black people at six times the rate of white people; brown people at three times the rate. Racism is cooked into every stage of the criminal system. Black people are more likely than white people to be arrested for the same crimes, held in pre-trial detention and offered plea bargains that include jail time for those same crimes, convicted for those same crimes, and sentenced more harshly for those same crimes.
Attorney General Jeff Sessions is doubling down on this failed approach by directing Justice Department prosecutors to “charge and pursue the most serious, readily provable offense” in every case. Jurors are likely to see a wave of low-level offenders facing punitive mandatory minimum sentences because of these guidelines. There is no better time than the present for nullification to become a routine act of resistance for progressives in drug cases.
When the threat from government is this great, and unlikely to go checked by other branches of government, nullification becomes an important tool of last resort.
But nullification should also be used to protect our constitutional right to protest. Two weeks ago, a woman protesting the confirmation hearings of now-Attorney General Sessions was convicted of disorderly or disruptive conduct, for which she now faces up to 12 months in jail, $2,000 in fines, or both. She was taken into custody after laughing in response to Senator Richard Shelby’s claim that Sessions’ record of treating all Americans equally under the law is clear and well-documented. Attorney General Sessions’ Department of Justice then carried out the prosecution that found her guilty.
The jurors that convicted her later suggested their hands were tied:
The jurors indicated they felt they had to convict Fairooz because of the way the laws are written, with yet another juror describing them as “so broad.”
At least three jurors said it was fair to say they felt forced into convicting her. “There’s almost no way that you can find them not guilty,” one said.
“There’s not a lot of wiggle room,” said the jury foreperson.
This is not so. Though the Supreme Court has ruled that jurors cannot be told of their right to nullify during the trial, a narrow right to nullification exists nonetheless. Judges can exclude jurors prior to the rendering of the verdict if there is extremely clear proof that the juror is not impartially considering the evidence. But if jurors do not admit to nullification, they are likely in the clear.
Nullification has thus far failed to catch on as a widely adopted strategy for progressives, likely due to concerns that it is antidemocratic to “take the law into your own hands.” But for three reasons, those concerns should not prevent the left from strongly adopting this tactic in cases of government overreach.
First, nullification is consistent with our highest ethics. Since Nuremberg, society has generally agreed that “just following orders” is no justification for allowing horrors to be committed in our name. When, as jurors, we vote guilty, we have given the government the cover of legitimacy to seize another human being’s freedom. It is an awesome responsibility and an awful power to hold, and we should not abdicate any portion of it to the “orders” of the government.
I dare suggest that nearly all of us on the left would already nullify given the right situation. Professor Butler rightly points out that in the 1800s, many jurors opposed to slavery refused to convict defendants accused of aiding runaway slaves; 30 years ago, other jurors refused to convict defendants accused of consensual gay sex. The question thus becomes not whether nullification is justified, but under what circumstances it is justified.
Second, these are extraordinary times. The President of the United States has openly expressed disdain for First Amendment freedoms. Journalists covering protests at his inauguration were arrested and charged with felonies. A reporter was just arrested in West Virginia for trying to ask Health Secretary Tom Price questions about the AHCA. And at least 19 states have introduced legislation to criminalize peaceful protest. It has become increasingly clear that the Trump administration plans to weaponize the Department of Justice and turn it against those who exercise their First Amendment rights.
And it is an incontrovertible fact that we seize the freedom of human beings at a higher rate than any other country in the world, and in a plainly racially biased way. When the threat from government is this great, and unlikely to go checked by other branches of government, nullification becomes an important tool of last resort.
Finally, we should consider nullification a no greater threat to the rule of law than prosecutorial discretion. Those who criticize nullification as “antidemocratic” might be surprised to recognize just how many actors in the criminal system are charged with taking the law into their own hands. From police officers who choose whether to give you a speeding ticket to prosecutors who decide whether to charge you with a crime, all based completely and entirely on the whims of their discretion, the criminal system gives multiple state actors carte blanche to decide which laws will be enforced. For jurors — members of the community the criminal system is supposed to serve and protect — to exercise their own discretion is a necessary balance that the system needs in order to begin the long process of finally becoming responsive to the communities it serves.
No doubt, jury nullification can be and has been used for evil as well as for good. Emmett Till’s murderers were acquitted due to nullification. Today, juries are likely nullifying when they refuse to convict a police officer for murdering a black human being. Reactionary “men’s rights” activists have advocated for nullification in rape cases.
But this only demonstrates that there is no Pandora’s Box to open. Nullification is already being used in service of conservative ends, and for progressives to cede nullification to the Right only further entrenches the disparities produced by the criminal system. Conservatives aren’t about to stop nullifying on behalf of police officers. It’s time for progressives to nullify on behalf of communities of color and our most cherished freedoms.
It’s time to get excited about getting picked to serve jury duty. Nullification is the most powerful tool we have to implement criminal justice reform over the next four years, and it lies squarely in our own hands. To the white allies wondering how they can support Black Lives Matter, you should know that prosecutors are going to look at your face and assume you will be more likely to convict the black defendant (and it will almost certainly be a black defendant). You have an incredible opportunity to strike a blow at the heart of mass incarceration in the Age of Trump, and all you have to do is vote not guilty.
The founders wouldn’t have had it any other way.
Tahir Duckett sits on the Executive Committee of Law For Black Lives-DC. Follow him on Twitter.