“I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”
– Thomas Jefferson
The Occupy movement has been instrumental in not only changing our national conversation on issues such as poverty and massive income inequality, but on shedding an unwavering light on the corporate criminal class too. The movement has these moneyed thugs shaking, and one need look no further for evidence of this than in the violent, disproportionate use of force on occupations across America. Perhaps just as importantly, Occupy has inspired a new generation of activists, as well as formerly apathetic ones (mine included) to shake off despair and fear, and join the struggle.
These past few months have been a crash course in what an oligarchic police state looks like, as well as what it truly means to exercise peaceable assembly for a redress of political grievances. At its most fundamental level, the movement has been a wild civics lesson in what it truly means to be a citizen, and how to fight for a better country.
The next civics lesson? Teaching our fellow citizens about another subversive tool that, if Occupy can manage, will change the way Americans participate in our dysfunctional criminal justice system: jury nullification.
Consider the fact that the United States jails more people per capita than any other country in the world: 2.3 million Americans are currently behind bars, and a staggering 25% of those cases are for nonviolent drug offenses. Not only that, but the majority of those incarcerated for these offenses are predominantly African American. This is taking an unimaginable toll on their community. Empowering jurors with the knowledge of jury nullification might be a tremendous first step in correcting an out-of-control criminal “justice” system, and would have the added effect of boldly challenging a monstrous prison-industrial-complex.
Secondly, the power of jury nullification could have far-reaching effects for sustaining and even emboldening the Occupy movement. This is not hard to imagine. Consider this hypothetical:
A group of protesters are on trial for a peaceful sit-in at an empty school or financial institution, in which they were arrested for, say, defiant trespassing. The protesters make the case that they engaged in civil disobedience in order to shed light on an injustice done to the community, such as a school closure due to unfair austerity measures, or predatory lending practices which result in community members getting kicked out of their homes. Now imagine a jury informed of their right to base their verdict on conscience, instead of a modern legal system which is often incapable of flexibility when it comes to cases involving civil disobedience. The jury would not be bound to issue a verdict within the confines a judge (who would not inform them of the right to nullify) has set for them, but instead weigh the merits of a statute in which no one was physically harmed and the “crime” itself was done out of an educated, moral concern for society. They refuse to convict the defendants, despite the fact that the protesters clearly broke a trespassing law. They would have based their verdict on the belief that the law, as applied to this particular circumstance, is unjust – and not on reasonable doubt.
Now take this a step further and imagine if juries across the country began voting this way. It would have the effect of nullifying laws considered unjust. This has already happened in Montana:
In Montana last year, a group of five prospective-jurors said they had a problem with someone receiving a felony for a small amount of marijuana. The prosecutors were freaked out about the “Mutiny in Montana” and were afraid they were not going to be able convince12 jurors in Montana to convict. The judge said, in a major New York Times article, “I’ve never seen this large a number of people express this large a number of reservations” and “it does raise a question about the next case.”
It may have also played a significant role in ending alcohol prohibition and the criminalization of gay sex.
There is a storied precedent for this right of juries, dating back to the year 1215 with the inception of the Magna Carta. Another “high profile” example of this can be found in the story of Pennsylvania’s own William Penn. A more notable instance of the use of jury nullification can be found in the history of the Fugitive Slave Act during the 1850s.
Indeed, the right of juries to nullify is embedded in our very own Bill of Rights.
How exactly to go about informing juries can be dicey, as the example of a retired chemistry professor named Julian P. Heicklen shows:
Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by.
Despite the obvious resistance from authorities this effort will create, it’s certainly a new front that the Occupy movement should – and must – open, as it already has with other facets of the American criminal justice system.
Editor’s note: The Project is heading to Washington, D.C. to cover the #J17 events this month. We cannot do it without your generosity, so if you enjoy the coverage and celebration of protest culture that we provide, please consider a small donation of just $10. Thanks so much for your continued support!