With some calling Luigi Mangione a folk hero for the alleged killing of United Healthcare CEO Brian Thompson, the concept of jury nullification—which has a long history of use in the U.S. as a means of popular resistance to unpopular laws and unjust prosecutions—has been dragged back into the spotlight. But even as the pundit class frets about this jury power being used to free someone undesirable to the ruling class simply because he is popular online, we ought to consider the tactic more broadly. With Donald Trump threatening to weaponize agencies like the FBI and Department of Justice against his political and personal enemies, among other overt vows to corrupt the justice system, jury nullification can be an important way of fighting back, even under a Republican trifecta.
Briefly, jury nullification occurs when a jury returns a not guilty verdict even if they believe beyond a reasonable doubt that the defendant did commit a crime. Since colonial times, nullification has been a way for ordinary people on juries to send messages about unjust laws, malicious prosecutions, and other miscarriages of justice. And yes, every once in a while it has been used to free popular defendants, perhaps most famously Wild Bill Hickok. At its core, though, jury nullification is one of the few places where popular resistance is not only possible, but sanctioned.
Some of the earliest cases of jury nullification were sparked by the spirit of the American Revolution, would-be citizens pushing back against perceived overreach by the British monarchy. John Peter Zenger was a German immigrant and printer who was charged with publishing “seditious libels” for his recounting of a dispute between the governor of New York Province and a provincial council member; he followed these publications with warnings about the possibility of the governor repressing freedom of the press. The jury acquitted Zenger, setting off fears among prosecutors of further jury nullifications in libel cases and a significant drop-off in prosecutions.
Jury nullification has a long history in the U.S., but it is not merely a relic of colonial times. More recently, juries have nullified prosecutions under other laws widely seen as unjustified by the public. Prior to the ratification of the Thirteenth Amendment banning slavery, juries nullified prosecutions of both escaped enslaved people and those who assisted them. During the Prohibition era, juries acquitted bootleggers such as George Beven to send a message about their opposition to prohibition. During the Vietnam War, juries acquitted many people who avoided the draft. Despite openly admitting to assisting in his patients’ suicides, multiple juries nullified prosecutions against Dr. Jack Kevorkian. Even more recently, Doug Darrell, a Rastafarian with no prior criminal record who was caught growing cannabis on his property, was acquitted through jury nullification.
On the eve of the second Trump administration, the president-elect has already signaled his intention to pursue prosecutions of some of his political enemies, such as President Joe Biden, former Congresswoman Liz Cheney, Congresswoman Nancy Pelosi, Manhattan District Attorney Alvin Bragg, and others. In addition to these specific threats, Trump has discussed prosecuting the “enemy from within,” referring to Democrats more broadly—both politicians and regular people. Trump’s nominee for FBI director, Kash Patel, is widely seen as eager to turn Trump’s vindictive fantasies into reality.
Republican governors and legislatures are also criminalizing behavior counter to their policy preferences. Multiple women have been prosecuted for abortions and miscarriages under wrongful death laws, and some states are debating whether to legally classify abortion as murder. In some red states, librarians face the prospect of criminal charges for circulating banned books. In several states, doctors can face criminal charges for providing gender-affirming care.
With the very real prospect of malicious and unjust prosecutions on the horizon, it is important for jurors to understand the power they have in preventing these and other injustices through nullification. However, judges have made it extremely difficult for juries to gain the knowledge they need to use that power. Even though the first chief justice of the U.S. Supreme Court, John Jay, affirmed the legality of jury nullification, successive courts have erected significant barriers to prevent its use. Defense attorneys are generally not allowed to mention the option of nullification, potential jurors can be stricken for mentioning nullification during voir dire, and judges can give jury instructions suggesting that nullification is not allowed.
Despite these challenges, jury nullification remains a viable option for resisting unjust prosecutions. At a time when essential human rights like bodily autonomy are under attack, immigrants face deportation on trumped-up charges, and the incoming government has threatened to use its vast power to punish undesirable citizens, it is easy to feel powerless. However, at least in these high-stakes circumstances for criminal defendants, the people retain the power to fight back and protect the freedom of their fellow Americans. Now more than ever, people of conscience should resist the urge to avoid jury duty, keep their mouths shut during voir dire, and talk to fellow jurors about nullification to prevent miscarriages of justice.
