The Question of Jury Nullification

Should a juror vote to acquit a criminal defendant on the grounds that the law behind the charges is unjust? Is such a practice of jury nullification legal, whether or not it is moral?

Jury nullification is a live issue in Colorado because of ongoing legal disputes between activists who hand out jury-nullifcation literature outside Denver’s Lindsey-Flanigan Courthouse and Denver officials who wish to restrict such activity. Here I’ll address the specific dispute as well as the general question of jury nullification.

The Colorado disputes began in mid-2015, when two men handing out nullification literature at the court, Mark Iannicelli and Eric Brandt, were arrested by Denver police and “each charged with seven counts of jury tampering” for allegedly violating Colorado statutes 18-8-609. (See also the district attorney’s media release.) Each charge carries a maximum penalty of three years in prison. Although the Denver District Court threw out the charges, the city appealed, so the men still could be prosecuted, according to Kirsten Tynan of the Fully Informed Jury Association and to Eric Verlo, parties in a related law suit.

Following the 2015 arrests, activists won a federal injunction enabling them to continue to hand out literature outside the court. In a case heard this week on April 17 and 18, activists (including Verlo and Tynan’s organization) argued, with the help of well-known Colorado attorney David Lane, that they should be able to operate under the injunction free of subsequent restrictions imposed by Denver. On April 19, in a separate case, Lane also pursued a complaint against Denver for violating the terms of the injunction when, in 2016, its officers again arrested and held Iannicelli and Brandt. Neither case has been been decided yet.

A number of important questions arise from these events. Is jury nullification morally and legally proper? Is the advocacy of it proper? What restrictions may government rightly place (if any) on the advocacy and practice of jury nullification?

Jury Nullification Is Moral and Legal

We’ll start with the big issues. Generally people agree that jury nullification is legal, whether or not it is morally proper. Law professor Eugene Volokh writes, “[I]t’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict.”

Regardless of the morality of the practice, banning jury nullification would be practically impossible. Sure, government could formally outlaw the practice, ban from jury pools people who embrace jury nullification, and provide criminal penalties for jurors who lie about their beliefs about this or who act to nullify the law in a given case. But, aside from the fact that such measures likely would be wildly unpopular, in most cases government could not possibly distinguish those covertly practicing jury nullification from those skeptical of the government’s case. The possibility of jury nullification is inherent in the use of the jury; the only way to eliminate it is to eliminate jury trials. Nobody I know wants to do that.

The more fundamental question is whether jury nullification is moral. I think it is moral when used to prevent unjust punishment of a defendant, most notably in cases in which the law in question is unjust. The classic cases of justifiable jury nullification involve jurors who decline to convict people who publish true information critical of government officials, who help slaves escape, or who consume or sell alcohol or other drugs in ways that do not violate the rights of others.

No sensible person argues that jury nullification is moral for the purpose of helping someone escape justice, as by letting off a defendant because of the race or ethnicity of the defendant or the victim.

Philosopher Michael Huemer argues that jury nullification is proper—indeed, is a moral “duty” (I’d say moral responsibility)—“to avoid contributing to serious, unjust harms” to defendants resulting from punishment under unjust laws. Huemer basis his case on the “simple and uncontroversial ethical principle” that generally (“extreme cases” aside) it is “wrong to cause another person to suffer serious undeserved harms.” Huemer makes a strong case and ably fends off common counter-arguments.

Huemer argues that jury nullification (to prevent unjust punishment) is not only morally permissible but morally obligatory for someone on a jury, at least in usual cases. Huemer also argues that someone may intentionally lie about his or her views about jury nullification in order to participate on the jury. (I’d argue there’s no general moral obligation to seek to get on a jury to prevent injustice or to lie to do so.)

Huemer draws an analogy to walking down the street with a gay friend and lying to a gang of hooligans about your friend’s sexual orientation in order to prevent the hooligans from beating him. (We should recall that homosexual acts were, in fact, outlawed throughout much of the United States until 2003, and they still are today in various other countries.)

In short, it is morally right to prevent unjust punishment of another person and even to lie to do so, and it is morally wrong to facilitate such punishment. Those who wish to argue otherwise must claim (or imply) that, instead, a juror should knowingly and intentionally facilitate the unjust punishment—often involving many years in prison—of a person. Good luck making that case.

If it is moral to practice jury nullification, it must also be moral to advocate the practice.

Government properly may not censor speech even if it advocates immoral practices (although government may restrict speech that is inherently rights-violating, such as direct incitements to violence). Certainly government ought not censor speech that advocates a moral practice such as jury nullification.

Answering a Common Objection

It seems that the most common sort of objection to jury nullification turns on claiming that it somehow undermines the rule of law. Consider, for example, a recent argument by Objectivist philosopher Peter Schwartz:

When [the Libertarian Party] platform declares: “We assert the common-law right of juries to judge not only the facts but also the justice of the law”—it is rejecting the means by which government protects the individual’s rights. The purpose of law in a free society is to make objective the prohibitions against the private initiation of force and the authorizations of government’s retaliatory use of force. By giving a group of citizens the power to nullify any law they happen not to like, including perfectly rational laws, the LP is negating the entire function of laws. (I agree with [Harry Binswanger’s] suggestions about recusing yourself if you are a juror on a case involving a patently unjust law.)

The claim here seems to be that one cannot advocate or practice jury nullification without advocating or practicing moral subjectivism regarding the law. But that’s not the case. Generally, it is morally right to help a slave go free; it is morally wrong to kill someone because of the person’s race. These are moral facts regardless of what the law says. So it seems straightforwardly to follow that it is morally right not to punish someone for helping a slave go free and morally wrong not to punish someone for killing another person because of the person’s race. The advocacy or practice of jury nullification, for the purpose of preventing unjust punishment, rests on objective moral principles that are logically prior to the law.

On the other hand, the position that jury nullification is inherently wrong seems to inescapably slip into moral subjectivism, for it rests on the presumption that the law must be obeyed no matter what it says or demands or what moral principles it violates. Indeed, the position that jury nullification is inherently wrong seems to logically imply that disobeying any law for any reason is wrong. It would be odd to claim that a person is morally justified to violate an unjust law (say, by escaping if one is lawfully enslaved), but morally unjustified to refrain from helping to punish the person who violates the unjust law.

What is the “entire function of laws,” if not to achieve justice for individuals? Knowingly facilitating an unjust outcome in a given criminal case seems obviously to be contrary to the proper function of laws, not in concert with it.

Anyway, it is apparently not the case that jury nullification is contrary to existing or proper law. “[J]ury nullification is supported by longstanding Anglo-American legal tradition, and was considered a vital check on government power by many of the Founders,” law professor Ilya Somin summarizes. Presumably the famous 1735 Zenger case involving jury nullification influenced the Bill of Rights’s provisions about jury trials as it influenced its provisions about freedom of the press. John Jay, who helped write the Federalist Papers, as Chief Justice of the Supreme Court conceded that juries have a right to judge “the law as well as the fact in controversy.”

I agree with many of Schwartz’s criticisms of the Libertarian Party (and of the broader libertarian movement), but his remarks about jury nullification seem off-base.

Debatable Legal Restrictions

The fact that jury nullification (and its advocacy) is moral does not imply that government may do nothing to discourage it. As Huemer concedes, concerns about the abuse of jury nullification “might provide a reason for designing institutions that render jury nullification less common.”

I have no objection to courts disallowing information about jury nullification in the courtroom or even instructing jurors to follow the law as written. My understanding is that today’s courts follow that course.

Some people argue that courts should actively inform jurors about their powers to nullify, but I’m not convinced. I worry that, if lawyers could explicitly argue for jury nullification in the course of a trial, they easily could appeal to jurors’ prejudices. Although I do not think jury nullification should be legally prohibited, neither am I convinced that it should be legally promoted.

I don’t have a strong opinion about whether prosecutors (or judges) should be able to ask jurors about their views regarding jury nullification or reject jurors with the “wrong” attitudes. I worry about such questioning, and I definitely don’t think there should be any penalty if jurors lie about their views on jury nullification.

What about restrictions about handing out pro-nullification literature outside of courthouses? The “public” property surrounding courthouses is subject to the usual requirements regarding free speech on public property. Government properly may issue reasonable content-neutral “time, manner, and place” restrictions; but what constitutes “reasonable” in this context I’m not sure.

From what I can tell, the “reasons” for restricting speech outside the courthouse in question, regarding security and the like, are mere pretexts for preventing the distribution specifically of literature advocating jury nullification. If that’s the case, then the restrictions at issue violate the First Amendment’s guarantees of freedom of speech. But I have not carefully studied the back-and-forth about this, so I have no firm opinion about what exactly the right call would be. My best guess is that activists should be allowed except within a specified number of feet in front of the entrance, so long as they aren’t making too much noise or harassing, blocking, or intimidating people.

Concluding Remarks

In sum, jury nullification and its advocacy to prevent unjust punishments are moral and legal—although certain restrictions pertaining to its advocacy are appropriate in and around the courthouse.

The irony for me is that, by publicly advocating jury nullification to prevent unjust punishments, I almost certainly will never be on a jury where nullification might be an issue. If I’m asked about this, I cannot plausibly claim that I am against jury nullification, given these published statements. As far as I can tell, given the Laura Kriho case, it’s still possible for jurors to be punished if they demonstrably lie about this. And if I refuse to answer, the prosecution almost certainly will throw me off the jury. (I’ve been called in for jury duty several times but, somehow, I never make the final cut.)

As horribly unjust as the felony jury tampering charges against the Denver men were, the arrest of those men and the legal battles that followed have served to publicize the cause of jury nullification. As Tynan points out, “the DA’s efforts to quash our message have made it go much further.” Denver’s district attorney certainly helped to make a believer out of me.

Image of the Zenger Trial: Martha J. Lamb


Reason As Absolute

I recently was summoned to appear for jury selection. Prior to determining if I would be selected, I was asked to fill out a questionnaire. Toward its conclusion it asked “are there any facts which you are aware that might prevent you from determining the innocence or guilt of the defendant you may be empowered to decide?” I answered the question, “perhaps.”

At the conclusion of the selection process, whereby the lawyers and judge asks assorted questions of potential jurors, the judged asked that Mr. Walden identify himself. I acknowledged, and the judge then indicated that he would like to understand my “perhaps.” I responded that irrespective of my thoughts on whether the defendant was guilty or innocent, I also would always reserve the right to determine the legality of the law. He then responded that it is the law! He would decide issues of law, jurors are only allowed to decide issues of fact—the facts of the case. I simply responded that I disagreed. He then angrily continued with the proceedings without further comment.

I am an Objectivist. As such I fully understand that reason must be man’s only absolute. All other “absolutes” exist within context. I therefore disagree with Schwartz and am in support of your fine articulations of the issues.

—Dave Walden