Jury Nullification Is Not a Crime

According to The Washington Post, “The chairman of the Republican-led House Oversight Committee is investigating two D.C.-based activist groups over hosting what he called ‘jury nullification training sessions,’ claiming that their instructions given to potential jurors were an illegal attempt to subvert federal prosecutors.”

The committee chair in question, Rep. James Comer (R–Ky.), has set his sights on the groups known as Free DC and Harriet’s Wildest Dreams because they, in Comer’s words, believe “that potential jurors should not make decisions impartially based on applying the law as instructed to the facts presented before them in the case, but based on their subjective, personal beliefs and activist agendas.”

I hate to break it to Comer, but many prominent members of America’s Founding generation would have agreed with those D.C. activists.

The debate over jury nullification asks whether there is a proper place in our legal system for a jury to acquit, not because of any lack of evidence of a defendant’s guilt, but because the jury believes the underlying law that was supposedly broken, or the prosecutor’s particular enforcement of that law, to be unconstitutional.

In 1791, the influential Founding Father James Wilson, who was a signer of both the Declaration of Independence and the U.S. Constitution, delivered a widely discussed lecture on law at the College of Philadelphia. “Whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature,” Wilson said. “When a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge.” Needless to say, jurors are among those “called to act” in this very manner. Jurors therefore have their own “right to judge” the constitutionality of the law (and prosecution) before them.

Thomas Jefferson made a similar point in a 1789 letter to Thomas Paine. “The trial by jury,” Jefferson wrote, is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” How else may a jury hold the government accountable to the principles of the Constitution than by judging for itself the constitutionality of the government’s actions, including the actions of the police and prosecution?

According to Comer, the job of a juror is mechanically “applying the law as instructed to the facts presented before them in the case.”

But that’s not what Founding Fathers such as Wilson and Jefferson thought. They argued that the job of the juror was to apply the text of the Constitution to the actions of the government and to acquit the defendant if either the law or its enforcement came up short. As Alexis de Tocqueville put it in his great book, Democracy in America, the jury “places the real direction of society in the hands of the governed, or a portion of the governed, and not in that of the government.”

The U.S. Supreme Court heard oral arguments this week in two cases that are worth keeping track of.

• On Tuesday, the justices weighed the matter of Beaird v. United States, which asks how much judicial deference is owed to the U.S. Sentencing Commission’s commentary on the federal sentencing guidelines when a judge is applying those guidelines during a federal criminal defendant’s sentencing. You can read this newsletter’s past coverage of that case here.
• On Wednesday, the justices took on the matter of Salazar v. Paramount Global, which asks whether the website 247Sports violated the Video Privacy Protection Act of 1988 when it shared a user’s private information, including what videos he watched, with Facebook. Past Injustice System coverage of that case is available here.

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