Jury nullification—the power of a jury to deliver a not-guilty verdict despite the evidence suggesting otherwise—is a quirky and rarely used mechanism of the legal system. Despite its legality, judges rarely mention jury nullification in court, and attorneys are often prohibited from informing juries of their right to nullify.
Nullification tends to be applied when a jury feels as though a law—which the defendant has violated—is unjust or immoral. One of the earliest cases of its use in North America occurred in 1735 during the trial of John Peter Zenger, who was charged with seditious libel for publishing a criticism of the Royal Governor of New York. Despite Zenger’s plain critique and obvious guilt, the jury refused to convict him on the belief that legally prohibiting criticism of the government was unjust. More recently, the arrest of Luigi Mangione—who allegedly shot and killed UnitedHealthcare CEO Brian Thompson—has prompted calls for jury nullification under claims that Mangione acted like a “modern-day Robin Hood.”
Nullification has numerous flaws and should not be available as a tool in the judicial system. While jurors may have various interpretations of the law, their common goal is to uncover the truthful story that must exist within a case. Considerable research has shown that jurors are rational and perform these fact-finding duties reasonably well, making them qualified to make logical decisions based on evidence presented in court. In fact, roughly 93.8 to 97.5 percent of criminal jury trials result in a unanimous verdict, suggesting juries frequently agree on the facts of a case.
Jurors’ success at determining a suspect’s innocence or guilt in court, however, does not qualify juries to adjudicate moral issues. As morality is subjective, it is unreasonable to expect 12 jurors to identify the “correct” moral stance on an issue or to come to a unified decision on its basis. A 2020 survey revealed that the majority of Americans believe “identifying moral truth is up to each individual; there are no moral absolutes that apply to everyone, all the time.” The survey result shows that there is no universal moral code, and it is thus impossible to expect jurors to abide by one. As such, expecting juries to reach a consensus regarding a moral issue, which nullification requires, is an unrealistic demand.
Furthermore, while some professions in the legal world, such as judges and prosecutors, involve varying degrees of discretion, their responsibilities are starkly different from jurors. Attorneys and judges often base their decisions on implicit or explicit policies, precedents, and best practices. The American Bar Association, for example, directs prosecutors to “not leave complete discretion for sentencing policy to individual prosecutors” and instead to rely on “general policies to guide the exercise of prosecutorial discretion.” Similarly, various appellate courts have instructed judges that “judicial discretion is not to be exercised at the arbitrary will of the judge.” These standardization measures prevent rogue decision-making in trials that would undermine the consistency and fairness of the legal system. Juries, while similarly entrusted with discretion when exercising nullification, do not abide by the same regulatory measures. Instead, nullification is based on jurors’ individual feelings and personal reasoning. The absence of such regulations is dangerous and allows jurors to make decisions that may be arbitrary and inconsistent, creating disparities in jury outcomes and undermining the legitimacy of the legal process.
In addition, legal professionals face accountability for their decisions. Prosecutors—many of whom are elected—may not be reelected by voters who are unhappy with their discretionary choices, and judges can be removed for abuses of discretion. Jurors, on the other hand, may not face consequences for their verdicts, including unpopular decisions to nullify. While the professions in which discretion is allowed rely on accountability mechanisms to ensure officials behave reasonably, no such mechanism guarantees that juries will act equally reasonably.
This unregulated power becomes even more consequential with the understanding that it takes only one juror to prevent a guilty verdict in a criminal case. Supreme Court interpretations of the Sixth Amendment—which protects the right to a fair trial and an impartial jury—dictate that a guilty verdict in a criminal trial must be reached through a unanimous decision. The absence of a unanimous verdict can lead to a mistrial and the defendant’s release. As such, individual jurors have the power to profess a moral quandary and nullify a verdict, keeping a guilty defendant from going to prison despite overwhelming evidence refuting their innocence. This power is far too extreme to be granted to a single individual.
Jury nullification is further problematic as it can be—and has been—used to produce discriminatory outcomes. In 1955, a jury returned a not-guilty verdict in the trial of two white men charged with the murder of Emmett Till, a young Black boy. The men were undoubtedly guilty, as the evidence against them (and their post-trial acknowledgments) showed, yet the jury nullified this evidence in favor of their racial biases. Other juries have nullified cases where the defendant was involved in hate crimes or police brutality. In 2022, Waukesha Christmas Parade attacker Darrell Brooks Jr.—defending himself in court—argued to the judge that the jury could nullify the law to avoid going to jail. While the judge did not permit him to talk to the jurors about their right to nullify, the possibility of an uncontroversially guilty defendant escaping punishment through nullification emphasizes the potential dangers of this practice. Although jury nullification has yielded some positive results, the very nature of nullification—as a personal and subjective force opposing established laws—prevents courts from ensuring that it is used only for “positive” change.
Finally, jury nullification undermines the political and legal system by acting as an illegitimate and unrepresentative way of making decisions. The two systems are intrinsically intertwined, as the legal system upholds the laws determined by the political system, which is well-established and generally—though far from perfectly—representative. As the jury system underrepresents people of color, it is misrepresentative of the population. Moreover, it is unresponsive to the public, and permitting jurors to supersede the political process undermines the democratic principles of the political system. Nullification allows groups of people to disregard the system of lawmaking, eroding established legal processes that attempt to ensure laws are representative and widely agreed upon. For instance, some juries refused to enforce Prohibition-era laws prohibiting the production and distribution of alcohol. While such laws were controversial, they were the outcome of the democratic political process of the time and must not have been overturned by undemocratically selected juries.
While some individuals in favor of jury nullification describe the mechanism as the “right to refuse to enforce bad laws,” the true right to combat “bad” laws is the right to cast a vote in the well-established political system. It must be the democratic process, rather than the random lottery that places individuals on a jury, that determines the law.
Jury nullification should be banned, and juries should be instructed to find verdicts based solely on the facts of a given case. While enforcement of this may be difficult, as jury deliberations are private, mechanisms like the laws that prohibit perjury and stronger juror oaths can make the practice impermissible. For instance, the Massachusetts oath states that the jurors “shall well and truly try the issue…according to your evidence.” To clearly prohibit nullification, these oaths should be strengthened to explicitly require the sole use of the facts of the case and prohibit moral reasoning and personal feelings. If done correctly, the jury system can be made to function as intended—to judge the facts of a case in conjunction with the law—without offering a small group of people the ability to undermine the law.