“God gives air to men; the law sells it to them.” — Victor Hugo, Les Miserables
Such is the disdain proponents of jury nullification feel toward laws and prosecutions they believe to be unjust. Generally the province of a small but passionate and vocal few, jury nullification found itself in headlines and on editorial pages over the past few months in Colorado. When police arrested two activists for distributing flyers advocating jury nullification to potential jurors outside a Denver courthouse, it brought a brief spotlight to a cause most of the public knows little about.
The history and basis for jury nullification is comparatively long and rich. While not a specific power granted to juries through statute or case law, it has historically derived from rules and norms barring inquiry into the motives and reasoning of the jurors. Because our legal system relies on the sacrosanct jury room, where a panel of peers process the facts and the law set before them, we do not subsequently put the jurors themselves on trial. In the great balancing act that occurs in our courts, the cost of challenging jurors’ inner reasoning presents too great a cost.
Proponents of jury nullification are further bolstered by the history of just causes it has benefited. Free speech rights memorialized in our First Amendment originally found solace in the American colonies through jury nullification. Abolitionists acting contrary to pre-Civil War fugitive slave laws avoided imprisonment when a series of juries refused to find them guilty through the practice of jury nullification. Before its official repeal, Prohibition unofficially ended when jury after jury refused to convict defendants who only wanted to have a drink.
Of course, no power comes without threat of abuse. Jurors in the segregated South regularly overlooked acts of violence and hate perpetrated by whites against black victims.
While jury nullification can be used to convict a person who has not broken the technical letter of the law, its most common application is to free defendants who broke the letter of the law. Consequently, its greatest adversaries are usually prosecutors, police offers and judges. They argue that jurors must be “fact-finders,” not legislatures unto themselves. Rather than creating law on a case-by-case basis, jurors must be directed to apply the law in the overall structure created through the checks and balances of our government. In opponents’ opinion, widespread application of jury nullification would undermine the equality underpinnings of the criminal justice system. Defendants’ fate would be left to the vagaries and inconsistencies of the individual jurors who heard the cases against them.
Those concerns led to the Supreme Court’s 5-4 decision in Sparf v. United States. The 1895 opinion freed federal judges from the requirement to inform jurors about the power of jury nullification. Over the next century, courts and legislatures built upon Sparf to effectively bar jury instructions on the use of jury nullification and prohibit defense attorneys from raising the possibility.
More than a century after Sparf, though, the jury nullification movement has found renewed life. Sparked by an uptick in civil disobedience and libertarian philosophy and political registration, the movement has become reinvigorated. For instance, in 2012 the “Live Free or Die” state — New Hampshire — passed legislation reinstating a defense attorney’s right to inform a jury of their nullification power. The state supreme court struck down the law, but activists continue to work toward passage of similar statutes, both in New Hampshire and other states.
Given the increased availability of information provided by cable news and Internet forums combined with flash-point current events, it isn’t difficult to imagine a renaissance in jury nullification proliferating. It doesn’t take a leap of faith to see a jury in Ferguson, Illinois, refusing to convict rioters protesting perceived police brutality. If Edward Snowden were returned to the United States to face trial, any juror pulled from the half of our population who considers him a hero might be tempted to exercise jury nullification to commend his actions.
Currently, it does not seem that any legislative action is underway in Colorado to follow in the footsteps of New Hampshire. However, given the high profile nature of the dispute at the Denver courthouse steps — any case involving attorney David Lane is likely to make a splash — it could be a cause picked up by an ambitious politician from either party hoping to brandish their libertarian credentials. Such hot-button issues can garner the earned media attention candidates crave, especially in an election year. I wouldn’t be surprised to see a bill floated as the Legislature begins to gear up to the coming session.
Regardless of how Colorado proceeds, it seems that the debate will only amplify in coming years. Seeing who comes down in the corner with Jean Valjean and who ends up sympathizing with Javert will be fascinating.
Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.
