JURY NULLIFICATION: JUDGES HATE THIS ONE WEIRD TRICK

No really, they do.

There is very little in the law that courts have uniformly shown disdain for, but one thing they have is jury nullification. “Jury Nullification” is when the evidence presented to the jury fits the legal requirements for a finding of “guilty,” but the jury instead acquits the defendant with a “not guilty” verdict.

Courts have affirmed time and time again that juries should not be informed of this power they inherently have. And it’s a damn shame because that power is incredibly important in American history because jury nullification serves as a final, democratic check on the State exercising power to criminalize and punish. William Penn, namesake of Pennsylvania, was at the center of this right as it developed in England.

Penn was criminally charged with preaching to a crowd about his religion at a time when the only state-sanctioned religion was the Church of England. The evidence was clear that he had unquestionably violated the law, but his jury refused to return a guilty verdict.

The judge essentially held the jury until they returned a verdict consistent with the law and the facts. However, the appellate court held that a judge could not punish a jury for reaching a verdict inconsistent with the law. There it protected William Penn’s right to free speech and his right to freedom of religion from an oppressive government, but the broad lesson of protecting a jury in its decision-making was well-received and incorporated into the development of American law and still stands today.

But again, no judge will tell a jury about it. Worse still, judges actively hide jury nullification from juries, threatening punishment on any attorney that tells a jury about their power.

My theory is that courts are deeply, resentfully envious that juries have this power and that they do not. Courts have an incredible amount of power and an equal amount of discretion, but the one thing they cannot do is ignore the law. Rather than accept that division of powers between themselves and juries, courts actively hide this power from juries.

Courts seem to prefer legal, unjust prosecutions to informing juries about a power they inherently have and allowing a democratic check on the State’s exercise of power. However, my theories about why courts hide jury nullification from juries don’t matter. All that matters is that you now know about it.

Here in Racine and Kenosha, I see a lot of criminal charges for possession of THC—even more frightening is the amount of felony charges for simple possession of THC (all that takes is a prior drug conviction).

All I want to do is set each case for a jury trial and ask the jury if this is an appropriate use of State power and resources. Ask the jury is this is an appropriate reason to make someone a criminal, even make someone a felon. Ask them if possessing THC is a reason for the State to punish someone.

I know propaganda around the effects of THC has a long history, but my hope is that any twelve random people from Racine or Kenosha would respond to each question with a resounding “Hell no!” and an acquittal. (In a later post I’ll address the incredibly flawed science I still see judges rely on when they sentence defendants for possessing THC, like the baseless claim that THC use has a causal relationship with schizophrenia.)

Of course, there are a lot more unjust laws than just simple possession of THC, and that’s why I’m here writing about this. We may get to vote for our representatives, but we have little say in the details of the laws that are passed. Hell, in Wisconsin we don’t even have the right to change our laws with a statewide referendum—a shame in its own right. But one thing we do have is when we sit in judgement as jurors, we also get to judge the prosecution. We get a direct line to the prosecutors to tell them, “No, we do not approve of this use of State power. Do better. Do something else.”

A court will never tell you that you have the power of jury nullification. They’ll punish any lawyer in the case if they try to tell you about it. They’ll remove jurors during jury selection that bring it up or declare a mistrial. But every jury has this power to sit in judgement of the law itself.

So I beg you to talk about it. Tell your friends and family about jury nullification. Mention it when you talk about unjust prosecutions in the media. It may not be relevant in the majority of criminal prosecutions, but it would make the difference in far more cases than you think.