Jury Nullification in Political Trials

Abstract

Judges in the United States usually do not tell juries of their historic power to nullify the law by acquitting defendants who are guilty according to the evidence. This fact may affect the fortunes of political defendants and their protest movements. This paper looks at the history of jury nullification in political trials in England and the United States and the ideological consequences of the refusal of many judges in trials of Vietnam War protesters to inform jurors of their power to nullify. Had jurors been so informed, more acquittals or hung juries would probably have resulted, presenting a serious challenge to the government's conduct of the war. I also address the theoretical and research implications of my analysis. Political protesters have faced criminal prosecution throughout the history of the United States. From the tax and mercantile protests of the colonial era to the demonstrations against nuclear power and nuclear weapons of the 1970s and 1980s, tens of thousands of U.S. citizens have been arrested, prosecuted, and often imprisoned for dissent. This use of the courts has affected the fate of many social movements. In several periods of protest, the courts have provided effective vehicles of social control for government officials and other antagonists. In 1917 and 1918, for example, federal and state prosecutions of some 2,000 socialists, anarchists, and other radicals under laws forbidding virtually all criticism of the First World War stifled dissent and helped destroy the Industrial Workers of the World (Chafee, 1941). In other times, though, the legal system has enabled insurgents to mobilize needed resources and gain other important advantages. Colonial law and legal proceedings, for example, proved a creative force (Teachout, 1981:198) in the struggle against English rule. Despite this rich history of political justice, however, sociologists have paid little attention to the impact of the legal system, and especially the criminal courts, on social movements. Courts are some of the many third-party resources (McCarthy and Zald, 1977; Oberschall, 1939) which may help achieve or obstruct the goals of social movement organizations (Barkan, 1980c; Handler, 1978).' In this framework, political trials are especially important.2 Government officials may use criminal charges and prosecutions to discredit a movement and compel its members to spend time, money, and energy avoiding conviction and punishment. A movement may in turn use the court proceedings to convince the public of the justness of its cause and the unfairness of the prosecution (Allen, 1974; Becker, 1971; Hakman, 1972; Kirchheimer, 1961). The jury's verdict thus has a crucial effect on both sides. Conviction advances the prosecution's goals of social control; acquittal frustrates the labeling of the movement's beliefs and conduct * The larger study from which this paper is derived would not have been possible without the advice and