William Penn may have thought he had settled the matter. Arrested in 1670 for preaching Quakerism, Penn was brought to trial. Despite Penn's admitting the charge, four of the 12 jurors voted to acquit. The judge sent the four to jail "without meat, drink, fire and tobacco" for failing to find Penn guilty. On appeal, however, the jurors' action was upheld and the right of juries to judge both the law and the facts -- to nullify the law if it chose -- became part of British constitutional law.
It ultimately became part of American constitutional law as well, but you'd never know it listening to jury instructions today almost anywhere in the country. With only a few exceptions, juries are explicitly or implicitly told to worry only about the facts and let the judge decide the law. The right of jury to judge both the law and the facts has become one of the legal system's best kept secrets.
Now a remarkable coalition has sprung up to challenge this secrecy as undemocratic, unconstitutional and dangerous. Though organized by libertarian activists, the Fully Informed Jury Amendment movement includes liberals and conservatives, Greens, drug decriminalization advocates, gun owner groups, peace activists, both sides of the abortion controversy, helmet and seatbelt activists, alternative medicine practitioners, taxpayer rights groups, environmentalists, criminal trial lawyers and law professors.
Organized by Larry Dodge and Don Doig, both of Helmville, Montana (population: 26; elevation 4300'), FIJA seeks to require that juries be informed of their rights. Informed jury amendments have been filed as an initiative in seven states and legislation has been introduced in the Alaska state legislature.
Merely raising the issue of jury rights can make prosecutors nervous, for it takes only one person aware of the right in order to hang a jury. In Washington, DC, where the concept was discussed in connection with the Marion Barry trial, a local television station reported that the US Attorney was worried that a jury might nullify the law in that case. The joke in DC was that Barry was campaigning, but only for one vote, that of a single juror. The specific charges against Barry revolved around his use of drugs and a growing number of people are coming to accept the argument that drug use or addiction should not be a criminal offense. Further many DC residents were concerned about the prosecution's heavy-handed pursuit of the mayor. Despite the refusal of courts to inform juries of their right to nullify, American juries have periodically exercised it anyway. In recent years, some peace protesters have been acquitted despite strong evidence that they violated the law. In the 19th century northern juries would refuse to convict under the fugitive slave laws. And in 1735 journalist Peter Zenger, accused of seditious libel, was acquitted by a jury that ignored the court's instructions on the law.
Those who have endorsed the right of a jury to judge both the law and the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue "the law -- its interpretation and validity -- to the jury." By the latter part of the century, however, judges and state law were increasingly moving against jury rights. In 1895 the US Supreme Court upheld the principle but ruled that juries were not to be informed of it by defense attorneys, nor were judges required to tell them about it. Stephen Barkan, writing in Social Problems (October 1983), noted that the attacks on jury rights stemmed in part from juries acquitting strike organizers and other labor activists. And in 1892 the American Bar Review warned that jurors had "developed agrarian tendencies of an alarming character."
Today, the constitutions of only two states -- Maryland and Indiana -- clearly declare jury rights, although two others -- Georgia and Oregon -- refer to it obliquely. The informed jury movement would like all states to require that judges instruct juries on their power to serve, in effect, as the final legislature of the land concerning the law in a particular case.
This is not an arcane demand nor is it an anarchistic one. No one is arguing the right of juries to convict in an arbitrary fashion nor to declare a law unconstitutional, merely the right described by George Bernard Shaw, "to deliver an accused person from both the police and the letter of the law."
As the diverse nature of the movement suggests, many groups in this country feel the government has overstepped its power in some way and that there must be protection for the natural rights of American citizens. They are defending not only the right to protest or carry a gun or not wear seatbelts but challenging the right of the government to decide such matters without the mediating effect of a jury's judgement of fairness in a particular case.
For many liberals and progressives, who tend to be confident of the beneficent nature of government power, such a challenge may be a bit uncomfortable -- understandable in a case involving a peace protest, less appreciated if invoked by a member of the National Rifle Association. The libertarians argue that the two are of one cloth. As government intrusion in individual matters has increased, the libertarian view has gained influence, helping to tilt normal left-right divisions on their side. Libertarians, for example, have been key to the growing opposition to the barbaric Reagan-Bush war on drugs, providing some of the best analysis and advocacy available on the issue.
Libertarians are again in the lead on the issue. Many progressives may be uneasy about the thought of a western jury nullifying a case involving a gun control or seatbelt law, but this unease reminds one of little discussed principles that were once considered central to being an American -- not the least of which was freedom from some government official telling you how to live your life. As the design of the modern centralized welfare state frays and becomes increasingly authoritarian, reacquaintance with some of our individualistic roots has much to recommend it.
In fact, it is unlikely that a jury considering a gun control case would excuse the leader of an underground Nazi movement or a gang of bank robbers. It 1is far more likely that it would acquit the respectable rancher who simply believes that gun control represents further destruction of his paradigm of individual liberty. If so, what have we lost?
The history of jury rights suggests there is little to fear. In those states where the concept is respected to some degree it has had minimal effect on the overall functioning of the law. Jury rights have, on the other hand, played a little noted but significant role in the advance of religious and press freedom, the abolition of slavery and the building of a labor movement. Even in the face of hostility by contemporary courts, it has cropped up in political protest trials of the past few decades. And it might have surfaced more frequently absent that hostility. As one of the jurors said following the conviction of the Berrigan brothers in 1980:
We convicted them on three things, and we really didn't want to convict them on anything. But we had to, because of the way the judge said the only thing that you can use is what you get under the law... I would have loved to hold up a flag to show them we approved of what they were doing. It was very difficult for us to bring in that conviction.
The principle of jury rights involves the power to say no to the excesses of government, and thus serves as a final defense against tyranny. As Thomas Jefferson put it to Tom Paine in a 1789 letter, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."