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Kirsten Kuhn: Prosecutors don’t want jurors to know they have this power (Column)

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Have you served on a jury recently? Are you opposed to our draconian laws and sentencing? You may not have known you had the power to acquit. 

Because we have a system based on judgment by one’s peers (as opposed to solely government discretion), the importance of an oft-ignored tool called jury nullification cannot be understated. Actors within the legal system will do their utmost to prevent you from knowing about, sharing information regarding, or exercising this important principle, but it is one that intentionally exists to ensure that the citizens can hold the legal system to the will of the people. It is one of the ways we can remedy some of the injustice perpetrated by our system.

Jury nullification is the practice of returning a “not guilty” verdict in a trial when jurors believe that the defendant may have committed the act, but that the act itself should not be criminal; that the punishment is too harsh or inappropriate; that the prosecutor has acted improperly; that the prosecution is malicious; or any other reason the jury members may decide. It is a basic refusal to convict based on the jurors’ beliefs and principles. It was intended to allow citizens to act as the final arbiter of justice against improper government action. 

In the past, it has been used to acquit individuals who were in violation of the Fugitive Slave Act, the Alien & Sedition Acts, and alcohol prohibition laws — which we now all agree were immoral, but were nonetheless law at the time. It can be used now for similarly egregious circumstances.

A modern example where we may be inclined to utilize nullification is in regards to drug laws. Let’s say you are serving on a jury here in Douglas County, where cannabis remains outlawed. In this hypothetical scenario, the state has demonstrated beyond a reasonable doubt in your mind that the defendant has indeed possessed cannabis. But you know the law to be unjust, and thus punishment inappropriate. It is your duty and right to vote “not guilty” and nullify. If the underlying act should not be criminal, then punishment should not be meted out.

The lengths to which the legal system actors will go to prevent you from exercising your conscience are many and varied. During the process of jury selection, prospective jurors are questioned about their views, prejudices, and potentially their stance on nullification. If individuals indicate their support of this process, they will most likely be stricken from the jury pool. 

This is not surprising, given that prosecutors view their role and obtain support based on their conviction rate. But many convictions are not necessarily, and are often even antithetical to, justice. Indeed, many of us can think of several “crimes” invented by the state that harm no one, but are nonetheless subject to legal penalties. 

Since a prosecutor’s whole career is dedicated to securing convictions, a jury’s refusal to convict undermines their perceived effectiveness. Hence, if you indicate support for nullification during voir dire, you are going to be ousted from the jury pool. This disdain is not limited to the interior of the courtroom, however. Even simply informing prospective jurors responding to a summons has resulted in arrests. Defense counsels have been similarly prevented from informing the jury of this power in other cases.

Despite this tenacious on-the-ground resistance, the Kansas Supreme Court has upheld your right to nullification in the 2014 ruling State v. Smith-Parker, stating that although juries do not need to be explicitly informed about nullification, “a judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.” The jury instructions cannot state that you “must” return a guilty verdict and the Court referred to the jury’s “inherent power of nullification,” both clear statements of support of nullification.

Jury nullification is the right and duty of every conscientious citizen in the face of our brutal and unrelenting system of so-called justice. The next time you receive a summons, please consider how you might use nullification to make the system a little less cruel, a little more fair, and perhaps more rational. If enough of us step forward, perhaps the system will find that prosecuting noncrime is not a good use of limited time and resources. 

Jury nullification is self-government. We should exercise it.

— Kirsten Kuhn (she/her) is a super awesome Libertarian porcupine residing in Palmyra Township. She believes in personal freedom and self-determination for all people and enjoys gardening and beekeeping in her spare time. She can be reached at douglascountylibertarians@gmail.com or @KSLibertarians on Twitter. Read more of her work for the Times here.

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