The Weekly Abolitionist: Jury Nullification in The Nation

On July 7th, Molly Knefel published a great piece on jury nullification in The Nation. Knefel opens by discussing the trial of Cecily McMillan, an Occupy Wall Street protester who was convicted of “assaulting” a police officer who had assaulted her, and sentenced to a prison term that most of the jurors who convicted her deemed disproportionate and unjust. The jurors had been instructed not to research the punishment McMillan would face.

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.

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