Published December 1999 in Liberty

"A Government of Laws and Not of Men"

The Verdict on Jury Nullification

by Barry Loberfeld

In the beginning of the '90s, a new and intriguing enthusiasm grabbed hold of many within the libertarian movement. This passion was for an idea since promoted as a bold strategy for bringing our country closer to the ideal of a free society. And although its claims have been deflated many times over, support for it continues to rise. That strategy? Jury nullification.

The term stands for the idea that criminal juries have a right to judge the law as well as the defendant. Good juries will nullify bad laws. Presumably, the scenario would go as follows: A libertarian attorney assumes the defense of an accused drug dealer. The preponderance of evidence indicates that the defendant did indeed violate the statute. Fortunately, our freedom-loving lawyer delivers an eloquent speech enumerating the standard libertarian arguments against drug criminalization. Struck by his irresistible logic, the jury uses its new-found power to declare the statute null and void ... by returning a verdict of "not guilty." This develops into a pattern, which soon leads to a de facto state of drug legalization in all fifty states. Eventually, the precedent extends to all victimless crimes. A new liberty is born.

But as near as I can figure, what we have here is a course of human events in which the rule of law is usurped by a rule of lawless juries -- i.e., of men above the law. In this Brave New World of crime and punishment, jurors are no longer charged with the responsibility of determining only whether the accused actually broke the law -- "guilty" or "not guilty." Now, it is theirs to decide -- by God knows what standard -- whether the law should apply to the case before them. Yes, some juries might nullify drug laws; others, however, will not. What, then, is the law of the land? Even the most conscientious of citizens will never know ... until the verdict is announced.

There are no doubt many who will insist I'm granting criminal courts a "right to violate rights." Actually, I'm saying only that I'd love to know exactly how these emancipated-from-law juries will determine what are rights and what are wrongs. One example: A homeless black teenager is brought to trial for mugging a white factory owner -- you get the picture. The defense attorney is a man who makes the late William Kunstler look like Robert Bork. He delivers an eloquent speech condemning our racist-capitalist nation and its oppressive laws. He explains that the accused is not a criminal but a victim; that he was forced by circumstances beyond his control to do what he did; that society's haves have a duty to provide for the have-nots; that it is the factory owner, the plutocrat who procures his wealth through the exploitation of his workers, who is the real thief -- and that the jury must base its determination of guilt or innocence on something "more important" than the evidence presented: JUSTICE. Now the jurors, as it so happens, find this all very compelling -- more so, in fact, than the case presented by the prosecutor, who tragically was laboring under the delusion that his sole responsibility was to prove beyond a reasonable doubt that the defendant committed the crime with which he was charged. Consequently, they return a verdict of "not guilty."

A jury empowered to nullify laws in deference to libertarian ideals is a jury empowered to nullify laws in deference to any ideals. There's obviously no point in compiling a list of the possibilities; the given example is gruesome enough. I suspect that many libertarians find jury nullification an attractive option precisely because it emulates the manner in which the Supreme Court strikes down a law. But to do so, the Justices must prove (or at least concoct some pretense) that the law violates the Constitution. A jury wishing to nullify a law must find that it violates ... what? The former case involves a conflict between laws; the latter, an abnegation of all law. The point is, jury nullification isn't merely a bad means to a noble end -- it is the abolition of that end. It is the rejection of limited government (where the rights of the individual, e.g., a defendant, are protected by law) in favor of its antipode: unlimited democracy (where the will of the collective, e.g., a jury, is subject to no law). It is the establishment of lynch-mob majoritarianism in our courts, especially when coupled with the call to do away with unanimous verdicts. The right of the jury "to judge the law as well as the defendant"? That is the "right to violate rights."

In any mixed economy, the legal system that upholds laws that deny individual liberty is the same system that upholds laws that affirm individual liberty. Sabotage that structure and both will come crashing. Our only option is the removal of coercive statutes from that structure. In the plainest terms, this means judicial appeal and legislative repeal. That these have thus far not been very friendly to the aspirations of libertarians by no means suggests that jury nullification would -- or even could -- prove any friendlier.

Postscript

In response to this essay, editor (The Freeman) and author Sheldon Richman wrote me: "You are right, of course, that under nullification some [accused] drug offenders will be convicted while others will be acquitted. I'd submit that, given the existence of an unjust law, that situation is preferable to everyone's being convicted." I'd submit that, in our mixed economy, jury nullification will only further mutate an inequitable system of law -- half libertarian, half authoritarian -- into an inequitable system of enforcement -- Peter goes free, Paul goes to jail. Richman would replace equality before the law -- a classical liberal principle -- with what is commonly understood to be "selective enforcement" -- a thoroughly statist practice. What emerges is a mixed economy now weighted even more in favor of its authoritarian side. As such, it will inevitably convict and imprison a greater percentage of the population. Too obviously, jury nullification would accomplish only the exact opposite of what Richman claims for it.

A final thought. Libertarians often argue that the problem with drug and other victimless-crime laws is that their routine violation engenders a wider disregard for all law. In other words: The nullification of bad laws threatens to undermine the rule of law itself, which is why such laws must be repealed. I concur -- as stated above.

So, is that everything? Yes, except this: A jury that may acquit for reasons unrelated to the facts is a jury that may convict for reasons unrelated to the facts. I'm quite finished now -- it can't get worse than that.