Can Juries Ignore ‘Immoral’ Laws by Nullifying Them?

Jury nullification to protest laws is back—and the feds are cracking down. By Mansfield Frazier.

Retired Penn State chemistry professor Julian P. Heicklen, 78, was arrested by the feds earlier this year for alleged jury tampering, a charge that carries a maximum six-month prison sentence. He’s charged with standing outside the federal courthouse on Pearl Street in lower Manhattan (something he’s been doing on a fairly regular basis since 2009 without incident) and providing passersby with pamphlets that state:

“The judge will instruct the jury that it must uphold the law as he gives it. He will be lying. The jury must judge the law as well as the facts. Juries were instituted to protect citizens from the tyranny of the government. It is not the duty of the jury to uphold the law. It is the jury's duty to see that justice is done ... Once on a jury, must I use the law as given by the judge, even if I think it's a bad law, or wrongly applied? The answer is ‘No.’ You are free to vote on the verdict according to your conscience.”

Heicklen also sometimes passes out information supplied by the Helena, Mt.–based Fully Informed Jury Association, whose literature states: “The FIJA mission is to inform all Americans about their rights, powers and responsibilities when serving as trial jurors. FIJA works to restore the political function of the jury as the final check and balance on our American system of government.” In their view, jurors can “nullify” laws they don’t agree with by returning a verdict of not guilty—even in the face of clear-cut and overwhelming evidence of legal guilt.

While this issue has simmered on the back burner of America’s judicial stove for more than a century, Heicklen’s arrest has garnered national attention and is sparking a debate the feds probably are wishing would not take place.

The basic idea of nullification springs from two bedrocks of the American system of jurisprudence: that jurors cannot be punished for and need not explain the verdict they deliver (which means nullification is to some extent in the eye of the beholder), and the “double jeopardy” clause of the Fifth Amendment, which prohibits a person from being tried twice for the same crime. In effect, nullification is when jury members return a verdict of “not guilty” not because of reasonable doubt, but because they believe a law is immoral or wrongly applied.

Georgetown University law professor Paul Butler, a former federal prosecutor, is an avid Heicklen supporter, and for years has been advocating for jurors to return not guilty verdicts in low-level drug possession and usage cases. The Bill of Rights, he posits, grants jurors the power to nullify laws they deem unfair in their construction or overly harsh in their application. The difference is that while Butler writes about the issue for a broader audience, Heicklen stands in front of the courthouse proselytizing to people he hopes are potential jurors. The government is alleging that speaking directly to potential jurors amounts to tampering.

In a New York Times op-ed earlier this month in support of Heicklen, Butler wrote: “Jury nullification is not new; its proponents have included John Hancock and John Adams. The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s ‘duty’ to vote based on his or her ‘own best understanding, judgment and conscience, though in direct opposition to the direction of the court.’”

While the feds have taken a dim view of jurors exercising such discretion, Butler writes that it’s an issue that the courts have never fully resolved, explaining that juries have been kept in the dark about the topic since 1895, when “the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.”

Federal prosecutor Rebecca Mermelstein, writing in the government’s brief in the Heicklen case, countered that while jury nullification has at times indeed produced just results, like acquittals by Northern juries in prosecutions under the fugitive slave laws, frequently, she said, nullification was used to frustrate justice, citing hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of the civil rights leader Medgar Evers the previous year. Another infamous—but more common—form of likely jury nullification caused the 1992 Rodney King riots in Los Angeles when four police officers (three white, and one Hispanic) were acquitted on charges of brutally beating King, in spite of video evidence to the contrary. “But,” writes Butler, “nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.”

Both Butler and Heicklen state their aim is not to subvert justice in serious criminal cases but to prevent an overzealous criminal-justice system from “felonizing” hundreds of thousands of young people over drug usage and other victimless crimes. Many civil libertarians charge that unequally enforced drug laws disproportionately land on blacks and Hispanics, and contend they’re within their First Amendment rights to “educate” jurors about using nullification to correct what they perceive as a legal wrong.

But what’s probably of more concern to federal prosecutors is what occurred in the 2003 trial of Richard M. Scrushy, a one-time high school dropout who rose to become the third highest-paid executive in the United States. As the CEO of HealthSouth, the “nation's largest provider of outpatient surgery and rehabilitative and diagnostic healthcare services” he (along with other top executives at the company) was indicted on 36 counts of conspiracy, money laundering, securities fraud, and mail fraud.

Before and during his trial (in which many of the company’s executives testified against him), Scrushy mounted a spirited defense that included appearances on 60 Minutes and hosting, along with his wife, a Christian television show called Viewpoint. They backed a citywide 40-day prayer movement referred to as “City, thou art loosed,” and joined the predominantly African-American Guiding Light Church.

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Prosecutors characterized the white couple’s embrace of the black church as an attempt to sway potential jurors, since 70 percent of Birmingham, Ala.'s population happened to be African-American, as were 11 of the 18 jurors (including alternates) in his case. In June 2005 after more than a month of deliberations, the jury acquitted Scrushy of all charges. Others, the government fears, could utilize a similar strategy to achieve the same ends.

Prosecutors, perhaps sensing a defeat in the making, had already begun preparing a new indictment, and in October 2005 four months after his acquittal in Birmingham, Scrushy—along with sitting Alabama governor Don Siegelman—was indicted by a federal grand jury in Montgomery. The indictment included 30 counts of money laundering, extortion, obstruction of justice, racketeering, and bribery. Scrushy’s lawyers accused the government of filing the new charges in retaliation for their client's winning acquittal in the earlier case by way of what could be considered jury nullification.

(The cases against the two men remain high profile and mired in controversy to this day, amid allegations that President George Bush’s political mastermind Karl Rove played a hand in what most citizens of the state have come to view as a politically inspired witch hunt of Siegelman.

Nonetheless, both men were convicted, sentenced to seven years, and are appealing—with Scrushy doing so from behind bars while Siegelman was released from prison as his case winds its way through the court system.)

Law professors Michelle Alexander (writing in her book, The New Jim Crow) and William J. Stuntz (in his book The Collapse of American Criminal Justice) have both argued that the scales of justice have tipped too far in favor of the prosecution. Both cite case after Supreme Court case that over the years have eroded the right of everyday citizens to protect their neighbors and countrymen from overreaching by agents of the government.

Stuntz writes that during the Gilded Age “jurors were much more than prosecutorial rubber stamps.” He continued, “The phrase ‘jury nullification’ was unknown a century ago—not because jurors were more respectful of the law, but because the law was more respectful of arguments of lenity.” And Alexander writes of the courthouse doors, over time, being “nailed shut” to appellants by Supreme Court decisions that leave little or no room for redress.

Both authors make the point that whereas citizens on grand juries once acted as bulwarks against the heavy hand of the prosecutor by routinely refusing to return an indictment they felt wasn’t warranted, today, in the words of Sol Wachtler (the former chief judge of New York’s highest court), “a grand jury would indict a ham sandwich” if that’s what prosecutors wanted of them. Jury nullification, in the minds of some, could serve as a power equalizer.

During Prohibition, juries—especially in rural areas of Kentucky and Tennessee—routinely refused to indict or convict their neighbors of making moonshine, and the hated “revenuers” virtually gave up on prosecuting such cases. In a recent Montana case, when the judge felt so many potential jurors would vote to nullify in a marijuana case, prosecutors were forced to offer the defendant a favorable plea bargain.

Last year alone the New York City police made 50,000 arrests for marijuana possession, with young black and Hispanic men disproportionately the subjects of them—even though the state decriminalized personal possession in 1977. (After a growing drum roll of press reports about the practice, a recent operational order by Commissioner Ray Kelly instructed officers to stop making many of these cheap arrests, but it’s not entirely clear yet if street-level officers have in fact changed their practices.)

More voices in the legal community have begun to question such law enforcement priorities. In addition to the costs of such arrests and prosecutions, Stuntz argues the strategy is counterproductive and diverts attention and scarce resources away from more serious crimes. Prosecutors, on the other hand, are fearful that if jury nullification is embraced, it could spread throughout the land like a disease, allowing criminals to run amok without fear of conviction.

Julian Heicklen is in good company. According to Butler, when Supreme Court Justice Antonin Scalia was asked at a Senate hearing in October about the role of juries in checking inordinate governmental power, the justice concurred that jurors “can ignore the law” if the law “is producing a terrible result.” Many would argue our nation’s inordinately high incarceration rate is ample proof of that “terrible result.”