Can jury nullification destroy all law?

 In 1894, the Sparf decision cited numerous prior courts’ alarmist claims that if jurors were allowed to nullify laws, then the law itself would vary recklessly from one moment to the next.

Some even argued that juries, if allowed to exercise their nullification powers, could do away with the very Constitution that created the judicial branch in the first place.

​Yet here we are, more than 120 years after Sparf, 230+ years since the U.S. Constitution became the supreme law of the land, and the judicial/legal system is not only still intact, it's more powerful than ever.

So why haven’t we citizens, with our mighty nullification hammers, beaten the Constitution and legal system to a bloody toothless pulp, as so many esteemed jurists feared? Let’s consider a few reasons.

The truth about nullification was deliberately hidden from jurors. After Sparf, most courts stopped telling jurors they had the right to judge the law as well as the facts. But even without knowledge of their legal power to nullify, good citizens still refused to deliver verdicts they believed were unfair or unjust.

Citizens typically have a conscience. Most jurors take very seriously their responsibilities with a defendant's life, freedom, and wellbeing. They also consider the consequences of their verdicts on the whole community. Are they setting free a dangerous or destructive person who might go on to harm others? Or are they unfairly locking up people who never harmed anyone, destroying their families, and turning them into career criminals forever ruined by the “felon” stigma?

Citizen jury power is hardly a match for all our opponents’ powers. Sure, informed jurors can set free one person at a time if they feel the law or the application of the law is unjust. That’s their ONE power. But does that power really level the playing field? Hardly.

On the opposing team, first we have legislators feverishly cranking out new laws that create hundreds of new victimless crimes, making criminals out of more and more of us every day. They’re making these laws, not to protect us citizens, but to benefit themselves and their cronies who are invested in various profitable enterprises at our expense.

You might say, “But we elect our representatives, so we have the power to correct their behavior or fire them.” Not really. Widespread election fraud gives us very little control over who holds office. Our legislators primarily represent their parties’ leadership and the Big Money interests that paid for their campaigns and continue to influence them during their terms in office.  

On the opposing team, we also have the law enforcers. Jury power does you no good at all when the police can stop and detain you for bogus reasons, cuff you, take your money and possessions, jail you, perhaps beat you or even kill you...even when NO crime has been committed. Jury power also doesn’t help you get your stuff back when law enforcement departments are deliberately underfunded to encourage them to aggressively seize citizens’ assets without any proof of a crime.  

And the final player on the opposing team is the justice system...where lawyers take away your presumption of innocence and convince you that your best option is to accept a plea bargain with reduced prison time rather than hold out for a jury trial that might set you free. Where bail is set so high that regular working people have no choice but to sit in jail, sometimes for years, waiting for the jury trial that could prove them innocent. Where that quaint old right to a “speedy trial,” guaranteed by the Constitution, is a joke, subject to the interpretation of those paid to oppose you. Where judges can refuse to tell juries about other applicable laws, like the First Amendment, that actually give you the right to do what you did. Where prosecutors or the judge can trick or cheat you out of a jury trial. Where governments sign contracts agreeing to keep private prisons filled to a high percentage of capacity. And where judges and lawyers are incentivized by those contracts, as well as by conflicts of interest and heartless games, to lock up as many defendants as possible, regardless of innocence or guilt.  

The other question to ask here is, “If jurors were meant to rubber-stamp the judge’s instructions, why bother having juries at all?” The answer is that our constitutional right to trial by jury is precisely designed to balance the judge’s experience, conscience and biases with the experience, conscience and biases of society and the community in general to ensure justice.   

So, to those in the legal system now and over the centuries who have warned that jurors exercising their nullification powers might bring about the demise of our very system of justice, I call BS on you. In truth, you’re just worried that we might take back even a tiny sliver of our own power that your system has stolen from us.

Our Founders designed you to be our adversaries. They knew that in your roles you would be drawn to the corruption of power and be blinded and disoriented by the darkness and echoes inside your silos. That’s why the Constitution deliberately gives us citizens ALL the powers not specifically assigned to the government...including the power to decide verdicts, in secret, according to whatever standards we deem necessary to ensure justice.

​But it’s obvious our powers are no match for yours. Clearly, you are the giants in this battle...and we are merely the ones with the slingshots.