This week the Washington Post has been publishing commentary on the legal doctrine of jury nullification, which boiled down refers to situations in which a jury returns a “not guilty” verdict in a criminal case even though the accused broke a law, rule, or regulation. To take a quick example, a jury might acquit a patient for using marijuana to alleviate her symptoms even though federal law does not allow any exceptions. It’s a controversial subject because lawyers and prosecutors and judges have been taught that jury nullification is totally inappropriate–so it is understandable where they’re coming from.
However, most lawyers are not familiar with the history. You can’t find references to “jury nullification” around the time of the American Revolution. That’s because it was considered to be part and parcel of what a jury trial was all about. If jurors thought the government was treating someone unjustly, they could acquit and restore that person’s liberty. Jury trials were celebrated–and explicit provisions were put into the Constitution so that the government could not take them away.
Today, the legal system is hostile to the doctrine of jury nullification–even to the point of punishing people who distribute pamphlets! Some years ago, Cato published the most comprehensive book on the subject, Jury Nullification: The Evolution of a Doctrine by Texas attorney, Clay Conrad. I’m glad to see that our author has a piece in the Washington Post series today.
One reason the Post decided to run this series is that there’s a move in New Hampshire to revive the doctrine there. A jury nullification bill had enough support to pass the General Assembly, though its prospects in the Senate are uncertain.
If you agree that jury nullification is an important check on the power of government, take a moment and share this post and/or related material with all your friends and contacts. The government wants to keep everyone in the dark on this one.
