Every so often, an item in the news brings up a debate as old as the nation itself: whether jurors may acquit a defendant in accordance with their own sense of justice even if they believe that the defendant violated the law as charged. The doctrine, called “jury nullification,” has a long and controversial history, stretching back before the Constitution to colonial America and England.1 Both proponents and opponents of the doctrine have their own sets of historical examples to point to as positive or negative, with, for example, nullification-based acquittals in pre-Civil War prosecutions under the fugitive slave laws contrasted with subsequent nullification-based acquittals in racially-charged homicides in the Jim Crow South.
The debate has resurfaced in the New York legal community recently with the federal government’s jury tampering indictment of an activist named Julian Heicklen, who was handing out pamphlets advocating nullification to members of the public (potentially including those who had been called for jury service) in front of the federal courthouse in Foley Square.2 Meanwhile, late last year, former federal prosecutor (and current law professor) Paul Butler published an op-ed in the New York Times defending Heicklen and calling on readers, if ever seated as jurors, to vote to acquit regardless of the evidence in any trial involving marijuana-based charges.3
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