Thoughts on Jury “Nullification”

I’ve gotten a great response to my article on LewRockwell.com about my jury service, where I discovered that Joe Sobran was right in saying that “The U.S. Constitution is no threat to our current system of government.” A number of people (a minority) responding were drug legalization activists who are pushing the “jury nullification” theory that jurors should just vote “not guilty” against laws they don’t like.

I don’t agree with that philosophy, though I admit that is a power the jury possesses. There’s really nothing to stop a juror who would – as a couple writers advised me – “just shut your mouth and vote not guilty.” Who’d know? Nobody would know.

I just don’t think it’s an appropriate strategy under an elected government. I volunteered to the judge under interrogation that I was familiar with this philosophy and that I disagreed with it. My disagreement is one of tactics, not one of basic principles, however. If this were a tyranny, then it would be a different story.

On my jury service, I upheld the law, in this case the U.S. Constitution. I didn’t try to cancel out any laws. I believe bad laws ought to be rigorously enforced, because that’s the best case that can be made for their repeal. I told several people who had written me that if it had been a state case, I’d have voted to convict the defendant. Likewise, if the defendant had moved – or orchestrated the move – of the drugs across state lines I’d have voted to convict. I would have voted to convict even though I think drug laws are a waste of time.

There’s a real risk in this jury nullification philosophy. If juries were to regularly discard laws they didn’t like, they could just as easily get in the habit of finding people guilty of laws that didn’t exist. They could find unpopular defendants and declare them guilty of crimes on flimsy evidence just because they didn’t like something else about them: their skin color, religion, or even the way they part their hair. Jury nullification is not a strategy I’d embrace lightly.

There’s really no need to go out and cancel bad laws if we want to disrupt the emerging federal police state. All we need to do is ensure that a couple of jurors on each jury will support the law that already in force, the U.S. Constitution, and that will bring down the system. It won’t accomplish the legalization of drugs, but that should be pretty low down on peoples’ priority list. (It is on mine.) But using the razor of the Constitution against federal prosecutions will shred the pompous, overgrown federal police state. Once that happens, then the U.S. Constitution will really be a threat to our current system of government!