The framers of our Constitution intentionally granted common citizens the power to administer verdicts in our judicial system for the reason that “we the people” are a check and balance against biased prosecutions and political passions of the day.

This check on government excess is called “jury nullification.” It enables a jury to return a verdict of “Not Guilty” even when it believes the defendant is guilty of breaking the law. The jury nullifies the prosecution’s case because it believes the law is unjust or its administration is immorally applied.

Historically, juries have nullified “seditious libel” cases against pamphleteers in support of free speech. During slavery, northern juries nullified prosecutions brought against individuals who were harboring slaves in violation of Fugitive Slave laws. Other examples include nullifications of prosecutions brought against people violating alcohol-control laws during Prohibition, of prosecutions against consensual gay sex, and avoiding the draft. Ironically, in the Jim Crow Era, all-white juries nullified prosecutions brought against white supremacists despite clear evidence of guilt in killing Black people or civil rights activists.

Our nation’s first Chief Justice, John Jay, informed jurors, “You have a right to take upon yourselves to judge both the facts and the law.” In 1805, Justice Samuel Chase was impeached in part for failing to uphold the right of juries to nullify unjust prosecutions.

More recently, courts have begun directing jurors to make decisions based on the narrow scope of facts, threatening jurors with removal or contempt of court for doing otherwise. Many believe this is an unconstitutional, institutional abuse of authority. Jury nullification nonetheless remains in the hands of jurors wanting to advise prosecutors that enforcement priorities are misplaced, biased, and/or abusive.

This is particularly important today, given that U.S. mass incarceration – five times historic levels – is the highest in the world, a systemic dysfunction due to many factors: “tough-on-crime” politicians, interests of the prison industrial complex, biased use of “prosecutorial discretion,” the fact that most jurors don’t understand the high bar that is “reasonable doubt,” and mainly, the failed “War on Drugs.” Not only are minority people disproportionately arrested and imprisoned for drug offenses, but since the early 1980’s, we have lost proportionality between sentencing and underlying crimes. High unemployment, biased policing, and mass incarceration creates desperation, defiance, and a growing disrespect for civil society. Studies show mass incarceration may actually be increasing crime.

Present-day jurors have the right and responsibility to weigh the facts of a case, consider all economic, social, and historic circumstances, and judge the fairness of the law to all concerned. Jurors must judge whether a defendant is a violent threat to society, or whether over-incarceration of non-violent offenders undermines social fabric and threatens “domestic tranquility.”

The Constitution is the “Supreme Law of the Land,” and our right to a “jury of peers” is a Constitutional expression that “we the people” are granted the trust to be the conscience of our country. It is not just our right and responsibility; it is our duty to take a stand against a biased criminal justice system.