By Abel Tomlinson
In civics class, we are taught that we have only three branches of government. However, there is a secret fourth branch of power that remains in the hands of ordinary citizens. The secret de facto right is called “jury nullification,” which allows jurors to veto unjust laws, and override congress, the president and the Supreme Court when necessary.
As a juror, you will almost never be informed of this right to disagree with the law, and certainly not in Arkansas at this moment. Currently, New Hampshire recently became the only state that allows for jurors to be fully informed about this right.
Arkansas judges intentionally keep you ignorant through carefully crafted “jury instructions.” In an Arkansas jury trial, the judge will tell you the following:
“I instruct you on the law to be applied … You would deny the parties their right to a fair trial if you based your decision on something other than the law and evidence presented … or on some legal rule other than the ones I give you…So the basic principle is this: You are to decide this case fairly, based only on the evidence I allow to be presented in this courtroom and the law as instructed by me. You are not to consider information from any other source (Ark. Model Jury Instr. (November 2011).”
This jury instruction is very misleading, and it too deserves to be nullified as unjust. There is not one mention whatsoever about the very long history of jury nullification that traces beyond our nation’s founding. Furthermore, this instruction is a fear tactic of the highest degree to scare jurors into groveling at the feet of authority, as if the judge was King George.
John Jay, the first chief justice of the U.S. Supreme Court, said in 1794, “The jury has a right to judge both the law as well as the fact in controversy.” Another Supreme Court Justice and signer of the Declaration of Independence, Samuel Chase, also said,“The jury has the right to determine both the law and the facts.” Harlon Stone, the 12th Chief Justice of the Supreme Court reaffirmed in 1941, “The law itself is on trial quite as much as the cause which is to be decided.” In a more recent decision of U.S. vs. Dougherty (1972), the Court ruled, “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge…”
Not only did many of our founders and Supreme Court Justices agree that it is a right of jurors to oppose unjust laws, but it was seen as an essential check on government tyranny. Justice Byron White said in Duncan vs. Louisiana (1968), “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government … and to protect against judges too responsive to the voice of higher authority.” President Thomas Jefferson also said, “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
Jury nullification also has a proud history of promoting sincere justice during the slavery and Prohibition eras. It was used many times when Northern juries refused to convict slaves that violated the Fugitive Slave Act. In the case of alcohol prohibition, juries nullified alcohol control laws approximately 60 percent of the time. This significant resistance helped repeal prohibition with the adoption of the 21st Amendment.
Just as nullification helped end prohibition, it is now necessary for potential jurors everywhere to become informed and end the tyranny of the Drug War. Not only are we locking thousands upon thousands of peaceful humans in cages for victimless crime, but federal and state governments are now spending over $50 billion annually on a war that experts conclude has been a complete failure. The 2011 report from the Global Commission on Drug Policy explicitly finds: “The global war on drugs has failed, with devastating consequences for individuals and societies around the world …”
A 2011 Gallup poll found that 50 percent of Americans believe marijuana should be legalized. A recent National Law Journal poll also found 75 percent of Americans would act on their own beliefs of morality regardless of a judge’s jury instruction. Hence, it is now time to act. Paul Butler, a former federal prosecutor and law professor at George Washington University wrote in the New York Times:
“If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.”
It is a distinct honor to serve as a juror and armed with the truth about nullification, you wield an incredible power that can overrule extreme legal injustices approved by politicians. As President John Adams said, this is “not only [the juror’s] right, but his duty.”
If selected for jury duty, ignore the judge’s intimidation tactics, and understand that jurors can never be punished for their verdict. The juror oath and jury instructions are not legally binding and must be regarded as advice. However, it is best to remain silent about this knowledge in order to remain in the jury pool.
Please Google “jury nullification,” visit the Fully Informed Jury Association’s website (FIJA.org), share this article, and begin informing your friends and family about their secret rights. We can end this cruel and immoral drug war. Now is the moment for peace.
For information on the FIJA Arkansas chapter, find us on Facebook.