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Common Sense crime and punishment general freedom jury rights and duties U.S. Constitution

Guess Who Else Nullifies?

Citizens have more power than they exercise. But folks in government aren’t exactly falling all over each other in the rush to help citizens participate and realize their potential.

Take juries. There are few more awesome responsibilities than sitting on a jury. And one of the things you can do, as a juror, is to refuse to follow the law or the judge, instead making your decision contrary to the immediate, official directive. Disapprove of a bureaucracy’s “legal” prosecution of an individual or group? Judge the law as well as the facts. Acquit.

Glenn Reynolds, writing in USA Today, shows that this practice has a long, honorable history in our country — he not unreasonably mentions how northern abolitionists fought the Fugitive Slave Act — and, if you, the juror, push it, “there’s nothing anyone can do about it…

Of course, prosecutors have essentially the same power, since they’re under no obligation to bring charges against even an obviously guilty defendant. But while the power of juries to let guilty people go free in the name of justice is treated as suspect and called “jury nullification,” the power of prosecutors to do the exact same thing is called “prosecutorial discretion,” and is treated not as a bug, but as a feature in our justice system.

Reynolds concisely makes the case that jury nullification is, itself, a designed feature of our American constitutional tradition, and not nearly so buggy as “prosecutorial discretion.”

Why? Its tendency is to liberate us from usurping government action.

Prosecutors’ “discretion” (on the other hand) gives folks in government more power over our lives. And ruins many.

This is Common Sense. I’m Paul Jacob.


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Jury Duty

 

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judiciary jury rights and duties

Penn’s Jurors’ Treason — Our Reason

Remember, remember the Fifth of September, when jurors freed Penn of the knot. I know of no reason why Penn’s jurors’ treason should ever be forgot.

Alaska Governor Sarah Palin is one of three governors who have honored September 5, officially, as Jury Rights Day. From her 2007 proclamation we learn that 338 years ago, in the trial of William Penn, his jury refused to convict him of violating England’s Conventicle Acts, despite clear evidence that he acted illegally by preaching a Quaker sermon.

In acquitting Penn, the jury acted against the judge’s explicit instructions, perhaps spurred by the judge’s own illegality, not allowing Penn to make a defense. So the judge threw the jurors in prison, on September 5.

In my little ditty, my parody of the Guy Fawkes Day rhyme, I indicated Penn was in danger of hanging. I doubt that. It rhymes; that’s my excuse. But he was in danger of harsh imprisonment, at the very least, merely for gathering people so he could preach.

The jurors who resisted a bad law and a rogue judge risked a lot. But they not only freed Penn, who went on to found Pennsylvania, they established important principles to be found today in our Bill of Rights — and in the principle of jury nullification. They served justice by judging the law as well as the accused.

I know of no reason why Penn’s jurors’ “treason” should ever be forgot!

This is Common Sense. I’m Paul Jacob.