Jury nullification occurs when a jury decides to ignore the law. Why would anyone ever want a jury to do that? Well, there are a lot of unjust laws out there. What is an unjust law? According to Martin Luther King Jr. (via St. Augustine), an unjust law “is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”
Even though I know that Justice Scalia rolls his eyes any time someone utters the phrase “natural law,” I’m going to talk about it anyway. The fact is that some pretty bright and historically significant people have relied upon natural law. Martin Luther King was one of them. Thomas Jefferson was another. Gerald Ford was still another.
What I would expect any judge to be even more uncomfortable with than allowing natural law arguments in courtrooms, is the continuing practice of not allowing them, as that seems to infringe upon one of the central principles of a defendant’s right to due process: the right to be heard.
The most sacred of interests, a person’s liberty and reputation, are at stake in criminal trials. As such, we must be certain that all possible arguments in favor of the preservation of each are allowed. If we do not empower jurors to at least consider the merits of a law which, at least in theory, they have already approved, then we engage in an exercise that is little more than a show trial. This may go a long way toward satisfying our desire for expeditious process, but it must go a very little way toward satisfying our demand for justice. It is not enough to merely apply the law. We must also inquire into the law’s morality. Dred Scott, let us never forget, was once the law.
When we consider that the United States “has less than 5 percent of the world’s population, [yet] has almost a quarter of the world’s prisoners,” how can we deny that many of our criminal laws remain deserving of whatever scrutiny is available? Such a prison population represents a failure of democratic government and the jury trial, which is perhaps one of the purest forms of democracy devised, is a way to fix it. By preventing arguments on nullification, however, the courts do not allow for meaningful trials. Instead, they are content to send millions to prison who may be factually guilty, but morally innocent. That is shameful.
[For a more detailed, and annotated, explanation of why I believe jury nullification to be a fundamental principle of liberty, please feel free to download this pdf. Or you can simply let William Kunstler explain it.]