You may have a favorite scenario: a college student caught with a few ounces of pot, a gun owner arrested for failing to register his weapon, an adult movie producer brought up on obscenity charges. Whoever the defendant is, you are one of 12 jurors hearing the case, and you refuse to convict. Your conscience will not allow you to enforce an unjust law.
According to most judges, a person like you has no place on a jury. A good juror, they say, assesses only the facts of the case, ignoring the morality of the law and the propriety of its application. Not so, say the members of a growing nationwide movement.
The Helmville, Montana–based Fully Informed Jury Association, established in 1989, seeks to revive the more-traditional understanding of the jury's role in the judicial process. FIJA would like to see every state adopt the following measure as a statute or constitutional amendment: "Whenever state or local government is one of the parties in any trial by jury, the court must inform the jurors that, in addition to their responsibility to judge the facts of the case, they have an inherent right to judge the law itself."
FIJA National Coordinator Don Doig says the measure has been introduced in the legislatures of nine states: Massachusetts, Nevada, Oklahoma, Texas, Washington, Arizona, Montana, Utah, and Alaska. Sponsors have been lined up in New York, Georgia, Idaho, and Tennessee. "It seems to be sweeping the grassroots of the country," Doig says.
The movement has attracted an odd Coalition of libertarians, liberals, and conservatives, including bikers, gun enthusiasts, tax protesters, marijuana growers, and activists on both sides of the abortion issue. In California, a FIJA petition is being circulated along with one aimed at legalizing pot. Articles supporting FIJA have appeared in both California NORML Reports and The New American, the John Birch Society's magazine. In January the staid Wall Street Journal gave FIJA front-page coverage.
Doig says the idea of jury nullification has broad appeal because people sense a need to restore balance to the American justice system. "No institution is perfect," he says, "but you can't name an institution that is freer of bias and corruption than the jury." To illustrate the importance of jury nullification, FIJA activists cite examples ranging from Peter Zenger's seditious-libel acquittal in colonial times to the refusal of juries to enforce Prohibition in the 1920s and '30s.
They also quote Founders such as Thomas Jefferson, John Adams, John Jay, and Alexander Hamilton. "It is not only [the juror's] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the Court," Adams said in 1771.
As a practical matter, the Constitution's Double Jeopardy Clause and the long-standing principle that juries may not be punished for their verdicts ensure that jurors have the ability, if not the acknowledged right, to ignore judges' instructions and vote their consciences. "This is something juries can do right now, and they do," Doig says. "They just don't do it often enough."
This article originally appeared in print under the headline "We, the Jury".