Knefel discusses the various norms that bias jurors in favor of conviction, from legal norms that prohibit lawyers from mentioning jury nullification in court to an authoritarian bias that inclines jurors to defer to police and prosecutors. She then describes nullification’s history, from its origins in 1670 to its use in the trial of the Camden 28, a group of peace activists who broke into a draft board office in protest of the Vietnam War.

The article’s conclusion is excellent:

People must know their rights before they get called to jury duty. Telling a sitting juror about nullification can be considered illegal tampering. But ensuring that all potential jurors know about nullification is not only legal but critical to the administration of justice. “When people start to understand the power they can exercise as jurors, I think that makes them more enthusiastic about jury service,” Butler says. And in an era of mass incarceration, harsh sentencing, racial profiling and police repression, the jury box is arguably the most powerful spot in the courtroom.

Now this is what I’m talking about!

Late last month I presented alongside Kirsten Tynan of the Fully Informed Jury Association on how jury nullification can be used as a tactic against a growing and brutal prison state. Kirsten discussed much of the history that Knefel covers in her piece. I mostly focused on the abuse that occurs inside American prisons, and why jurors should be aware of this as they consider whether someone should be convicted of a crime.

I’ve considered jury nullification a key part of any prison abolitionist toolkit for a while. About a year ago, in my op-ed Prison Abolition Is Practical, I mentioned jury nullification as one tactic for restraining the prison state, writing:

Resist the prison growth industry. Organize against construction of any new prisons, jails, and detention centers. Divest from banks that profit off prisons, such as Wells Fargo, and urge others to do the same. Expose prison profiteers like Jane Marquardt and undermine their political influence. Film cops, finance legal defenses, and promote jury nullification, so fewer people are sent to prison.

But this perspective on jury nullification has in my experience been too often absent from leftist movements against mass incarceration. The Fully Informed Jury Association does amazing work for jury nullification, but has mostly been heard by the libertarian right. So when left-wing publications like The Nation bring up jury nullification explicitly as a tactic against mass incarceration, this gives me hope and suggests I’m not alone. Let’s fight against mass incarceration, disproportionate punishment, and abusive power on all fronts, with juror education and jury nullification as one key tactic.

Resist the prison growth industry. Organize against construction of any new prisons, jails, and detention centers. Divest from banks that profit off prisons, such as Wells Fargo, and urge others to do the same. Expose prison profiteers like Jane Marquardt and undermine their political influence. Film cops, finance legal defenses, and promote jury nullification, so fewer people are sent to prison.

This Wednesday, I’ll discuss where I see jury nullification fitting in as a tactic for challenging criminalization and mass incarceration. I’ll also point out why overcriminalization, police militarization, and other relatively recent trends make jury nullification a moral imperative in many cases.

Some Utah specific criminal justice issues will be discussed, particularly the impending prison move and expansion. This prison expansion illustrates both the dangerous expansionist character of the prison state and the perverse role of politically connected business interests in shaping the criminal punishment system. Other factors that contribute to the prison growth, such as the institutional structure of the federal government and political responses to moral panics will be discussed.

If you can’t make it, you can look forward to video, which we will be linking here at C4SS. You can learn more about upcoming FIJA events here.

O famoso processo Zenger da era colonial mostra claramente o uso e a finalidade da nulificação pelo júri. John Peter Zenger foi acusado de difamar o governador real de New York e, de acordo com as doutrinas legais vigentes à época, deveria ter sido prontamente condenado. Entretanto, o advogado de Zenger, Andrew Hamilton (nenhum parentesco com Alexander Hamilton), persuadiu o júri de que as acusações violavam a liberdade de imprensa, então realmente doutrina nova. Zenger, em flagrante desafio à lei, foi absolvido.

Desde a Revolução Estadunidense a nulificação pelo júri veio sendo repetidamente confirmada por decisões de tribunais de apelação e, em verdade, ela não pode ser revogada sem a abolição de dois dos pilares de nosso sistema jurídico, isto é: Primeiro, o direito do júri de deliberar em segredo e não ser punido pelo veredito que pronunciar; segundo, a proibição de “possibilidade de ser julgado duplicadamente” (julgamento do réu duas vezes pela mesma ofensa). Embora tribunais e promotores tentem desesperadamente controlar a informação acerca da nulificação pelo júri, chegando até a prender idosos por distribuírem panfletos em frente a tribunais, a doutrina em si continua vigente, irritando promotores justiceiros que buscam fazer cumprir leis estúpidas em todo o país.

A nulificação pelo júri sem dúvida enfurece promotores, juízes, e em verdade todos os tiranetes dos quadros oficiais. De modo geral, a democracia genuína provoca esse efeito. Nossa classe dominante apraz-se com chamar de “democracia” a farsa das eleições viciadas realizadas periodicamente para confirmá-la no poder, mas o poder do júri de desconsiderar a lei e fazer justiça como entenda correto é que representa democracia genuína, isto é, demokratia, ou poder do povo. Na verdade a nulificação pelo júri representa um dos poucos bastiões remanescentes da genuína democracia em nossa sociedade tecnologicamente gerida. Deve ser realmente exasperante para os tecnocratas jurídicos ter seus pomposamente ridículos disparates derrubados por patota de meros cidadãos à qual falta, como geralmente acontece, diplomas de alto nível e títulos prestigiosos. E assim eles tentam e tentam suprimir informação acerca da real essência dos júris — decidir qual será o veredito justo — a fim de tornar tais júris passivos e facilmente controláveis, transformá-los, de júris reais e de funcionamento adequado, em tótens inanimados usados como esteios para o espetáculo cabúqui que, é-nos assegurado, constitui “julgamento justo.”

Não podemos deixá-los prevalecer. O sistema jurídico é uma das funções essenciais do estado, e em júris e nulificações pelo júri nós anarquistas recebemos esplêndida chave inglesa para enfiar nas engrenagens estatais. Precisamos, em toda oportunidade, permitir que nossos irmãos e irmãs saibam da existência desse poder que permanece nas mãos deles, e se algum dia formos nós próprios intimados para ser jurados — especialmente em processo de julgamento de não crime, como vender maconha ou atirar num policial em defesa própria — fazer tudo o que pudermos para integrar aquele júri e absolver o réu. O anarquismo representa o povo contra o poder, e precisamos utilizar de modo pleno as poucas ferramentas legais a nós deixadas, em nossa guerra aos governantes.

Artigo original afixado por Jonathan Carp em 31 de outubro de 2013.

Traduzido do inglês por Murilo Otávio Rodrigues Paes Leme.

The famous colonial era Zenger case clearly demonstrates the use and purpose of jury nullification. John Peter Zenger was charged with libeling the royal governor of New York and, according to the established legal doctrines of the time, should have been readily convicted. However, Zenger’s lawyer, Andrew Hamilton (no relation to Alexander Hamilton), persuaded the jury that the charges violated the freedom of the press, then quite a novel doctrine indeed. Zenger, in defiance of the law, was acquitted.

Since the American Revolution, jury nullification has been repeatedly upheld by appellate court decisions, and indeed it cannot be undone without abolishing two of the pillars of our legal system, such as it is: First, the right of a jury to deliberate in secret and not to be punished for the verdict it renders; and secondly, the prohibition of “double jeopardy” (trying a defendant twice for the same offense). While courts and prosecutors try desperately to control information about jury nullification, even arresting old men for leafleting in front of courthouses, the doctrine itself remains in place, irritating zealous prosecutors enforcing stupid laws all over the country.

Jury nullification no doubt infuriates prosecutors, judges, and indeed all the petty tyrants of officialdom. Genuine democracy generally has this effect. Our ruling class is pleased to call the farcical, heavily gamed elections periodically held to confirm them in power “democracy,” but the power of the jury to disregard the law and do justice as they see it represents genuine democracy, that is, demokratia, or people power. Indeed jury nullification represents one of the few remaining bastions of genuine democracy in our technocratically managed society. It must be truly maddening for the legal technocrats to have their pompously ridiculous nonsense overthrown by a gaggle of mere citizens lacking, as they often do, fine degrees and prestigious titles. And so they try and try to quash information about the real point of juries — deciding upon a just verdict — in order to render them passive and easily controlled, to turn them from real, functioning juries into inanimate totems used as props for the kabuki shows that we are assured are “fair trials.”

We cannot let them win. The legal system is one of the core functions of the state, and in juries and jury nullification we anarchists are handed a wonderful monkey wrench to fling into its gears. We must, at every opportunity, let our brothers and sisters know about this power that remains in their hands, and if we ever find ourselves summoned for jury duty — especially for a case trying a non-crime, like selling weed or shooting a cop in self-defense — do everything we can to get onto that jury and to acquit the defendant. Anarchism represents the people against power, and we must fully utilize the few legal tools left to us in our war on the rulers.

Translations for this article:

• Portuguese, Promotores contra Democracia.

For months, Julian Heicklen, a septuagenarian libertarian, has distributed pamphlets about jury nullification in front of federal courthouses. He has been arrested on numerous occasions at the district court in Manhattan. Each arrest has seen Heicklen going limp and being carried or dragged away by federal officers. But he keeps coming back.

Heicklen’s pamphlets were not about any specific case, but explained the power of juries to acquit people who appear to have violated laws the jury considers unjust. Jury nullification has helped set free William Penn, John Peter Zenger, fugitive slaves, and violators of alcohol prohibition. More recently a Montana man arrested for possessing a very small amount of marijuana went free because the state was unable to seat a jury that might convict him. Jury nullification clearly holds potential to be a substantial check on government power.

For attempting to teach the public about this power, Julian Heicklen is charged with jury tampering. Clearly, the state intends to prevent potential jurors from making informed decisions. Government agents are doing what they can to make sure they get their way when cases go to trial. This is why they tamper with juries by preventing them from understanding their power.

To the state, power comes first, and justice comes somewhere afterward. The state must keep its power intact and the criminal justice system, an obscene farce of revenue gathering and career building, is there to do it. Much has been invested in prisons and police, and the investors are using their position to ensure the profits keep coming. Politicians need muscle to push forth their ambition, and they want a system that keeps the muscle strong.

In government courts, the prosecutor and judge are on the same team and the defense attorney’s rules are set by the institution that is trying to fine or imprison the defendant. They are monopolies within a system that enforces its own monopoly. Pamphleteers who teach prospective jurors about their power help give individuals a chance to effectively oppose the state. While jury power may be abused by those who wish to do injustice to other people, it at least allows some measure of participation and decisionmaking to those who are usually supposed to let the Important People make the important decisions. And unchecked state power abuses people as part of its normal operations.

When individuals who harm nobody are at risk of having their home invaded by heavily-armed enforcers who will haul them in chains to a cage full of violent and angry people, and forced to pay not only for this “service” but for the rest of the violent system, any tool for disrupting the violence is probably a good thing. Jury nullification is one such tool. No matter how much the state tampers with the administration of justice, Julian Heicklen is on the side of liberty.