During the 19th century, the fugitive slave laws were passed to force people who knew of escaped slaves to return the slaves to the ‘owner’. Many of the northerners did not agree with this law and would not only refuse to return the slaves, but would assist them in getting farther from the slave owner. The ‘criminals’, i.e., the people who helped the slaves, would often be arrested and tried for violating those laws. Time and time again the jurors would acquit them.
After the 18th amendment was passed, laws in support of it were also passed. These were the prohibition laws. Those who violated these laws against manufacturing, sale and transportation of alcohol were put on trial for their offences. Time and time again the jurors would acquit them.
The defendants were guilty of the laws, as they stood, but the jurors believed the laws to be bad laws. Therefore they would acquit. This is called jury nullification.
The consistent jury nullification of the fugitive slave laws were instrumental in getting those laws overturned. It was also jury nullification of the prohibition laws that led to the 21st amendment which rescinded the 18th amendment.
So what constitutes a bad law? Any law which is unconstitutional. In 1803, in Marbury vs. Madison, Chief Justice Marshall delivered the majority decision. In it he stated, “ . . . the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” Marshall was saying that if a law is not Constitutional, it is not law. It is void.
A law may be Constitutional and still be a bad law. The prohibition laws were Constitutional but the people still believed them to be bad laws.
A law designed specifically to work against a political opponent is a bad law. A law which has no victims is a bad law. If a law is not a just law, it is a bad law.
A law which goes against your conscience is, to you, a bad law. If you are against the death penalty, a law that would cause the accused to face the death penalty is a bad law. Or at least the penalty is bad and the only way you can fight it is to consider it a bad law. The same logic applies if you are not specifically against the penalty but believe the crime does not justify a penalty so extreme.
If you are called to jury duty
The important message here is that as a juror, YOU have the right and power to determine if a law is a bad law or a good law. If it is a just or unjust law. If you find yourself on a jury, you have the right and the power to judge the facts of the case. But you also have the right and power to judge the LAW of the case.
The judge won’t tell you that you have the power and right to judge the law. They would rather you believe you only have the power and right to judge the facts. If the judge tells you anything, he or she will most likely tell you that you do NOT have the right to judge the law. The judge won’t hesitate to say you may only judge the facts and he will judge the law. The judge may also tell you that you took an oath to do exactly as the judge orders. But the oath you took likely only obligated you to do your best to provide justice for the defendant.
There was a time when it was standard procedure for a judge to inform the jury that they could and should judge the law. In the late 1800’s that practiced stopped. For a while the defense attorney would give this message to the jurors, but that too has been stopped. Now if a defendant or his/her attorney attempts to say anything about this the judge will tell them to stop. If they don’t stop, the judge will threaten contempt of court charges.
Why are you no longer informed about jury nullification? Don’t forget that the judge works for, and is paid by, the government. It is in his or her best interest to keep the government happy. And the government does not like their laws knocked down by jurors or anyone else.
So where does this leave you as a potential juror? When you are questioned during jury selection, it is best to remain silent on the subject. If they ask you anything jury nullification, you do not need to acknowledge any knowledge of the subject. There questions are just a ploy to keep any honest citizens who know they have the right to judge the law from being a juror on the case. The judges take an oath to support the US Constitution but they won’t hesitate to lie to you to keep you from using all your knowledge to truly judge the case completely. Including the law itself.
To learn more about your rights, powers, and duties as a juror, please visit the site of the Fully Informed Jury Association. Then, when called upon to serve as a juror, please accept and do your best to be sure justice is done for the defendant.
In closing let me emphasize that all this talk about bad laws does not mean that all laws are bad. Anyone who steals or damages someone else’s property, or who does bodily harm to another person, should indeed pay the penalty provided by law (assuming the penalty to not be “cruel and unusual” as prohibited by the 8th amendment). Those laws are not bad laws. They should be upheld as long as the defendant is actually guilty of the stated crime. Jury nullification is to protect the defendant from bad laws and being railroaded by political enemies or because of personal grudges, etc., not to free those defendants guilty of harmful crimes.