An old legal issue has come roaring back into the mainstream, thanks to a libertarian-minded New Hampshire legislature. The state House of Representatives has voted in favor of a bill that would allow attorneys, on instruction from their client, to inform the jury of the power to acquit even when the facts of the case under law would lead to the guilty verdict.
The bill describes the new jury instructions thus: “Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty”. In other words, juries would be able to assess more than simply whether someone is guilty. They would have the power to weigh whether the punishment associated with the crime is just, and even whether the law itself is just, and act accordingly.
This may seem like a rather radical policy. Yet it is one that goes back to the very foundation of the republic. Under colonial rule, when British tariffs and restrictions on trade forced merchants to choose between financial ruin and circumventing these rules (and thus violating the law), many citizens found themselves before juries of their peers. Many of these juries refused to convict their countrymen, recognizing the fundamental injustice of the system that made them criminals. It was from these beginnings that a national tradition of jury nullification was born.
Yet despite its pivotal role in the formation of the American tradition of self-rule, jury nullification has fallen out of favor. Critics of the concept argue that putting the law into the hands of twelve individuals, chosen more or less at random, makes a mockery of the law and can result in the uneven dispensing of justice. It can also play havoc on the underlying aims of the laws, if juries are repeatedly nullifying them. The result has been that virtually every state and municipality in the United States forbids lawyers or participants in trials from even informing the jury of their power to nullify.
It is certainly true that juries armed with the knowledge of their own power might at times abuse it, or allow their own particular biases to cloud their judgment. Yet this criticism is simply a critique of the jury system itself. If a jury cannot be trusted to form an appropriate understanding of justice, then how could we trust them to adjudicate on the facts fairly?
Furthermore, it speaks to a remarkable level of deceit and paternalism on the part of lawmakers that they feel it necessary to hide from jurors the truth of their prerogative. The simple truth is that, whether they are informed of it or not, juries can acquit anyone and are not beholden to any authority to justify their decision. In that sense, juries are the last check of the people as a whole on the government. It is the manifestation of the overriding truth that sits at the heart of our form of government that it is the people, not the institutions they establish, that are sovereign. The fact that the government tries to hide this fact from its citizens simply shows its fear of the power of individuals to make decisions for themselves.
If this new law takes hold, we may once again see individual citizens recognize their power to challenge and stop wicked and unjust laws from harming their fellow Americans. Jurors can prevent young men from inner cities from going to prison for life on ridiculous three-strike laws. They can prevent the DEA from ruining the lives of teenagers smoking a bit of marijuana. They can stand up to every form of federal and state tyranny that terrorizes the public with endless regulations and their attendant penalties.
Lovers of liberty everywhere should rejoice at the reforms taking place in New Hampshire. They represent a rebirth of the freedoms and individual responsibilities that are the hallmarks of a libertarian republic.
* John Engle is a merchant banker and author living in the Chicago area. A graduate of Trinity College Dublin, Ireland and the University of Oxford, his first book, Trinity Student Pranks: A History of Mischief and Mayhem, was published in September 2013.
This post was written by John Engle.
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