“Show me the man, and I’ll show you the crime,” said Lavrentiy Beria, the ruthless, long-serving secret police chief in Josef Stalin’s Soviet Union who bragged that he could prove anyone guilty of criminal conduct, even the innocent.
But that could just as easily have come from President Donald Trump. Through a series of flagrantly unconstitutional executive orders, Trump has sought to silence the opposition. This culminated with an executive order demanding that the Departments of Justice and Homeland Security investigate former administration officials who pushed back against Trump’s frivolous claims that the 2020 election was stolen.
The Framers understood the danger of a despotic regime and regarded the criminal jury trial as a key procedural safeguard to help ensure that only those acts and individuals society deemed truly culpable result in criminal punishment. This is of particular importance today — in a nation plagued by rampant overcriminalization and coercive plea bargaining — where often all that stands between us and a criminal record is a prosecutor’s decision to charge.
Though citizen jury trials are the best our system has to offer, they’re only as effective as the information jurors receive. In 2019, Paul St. Louis penned a haunting confession in The Washington Post: As a juror in a 2018 federal drug trial, he helped send then-37-year-old, low-level drug dealer Frederick Turner to prison for 40 years — a sentence that shocked St. Louis and soon resulted in Turner’s premature death behind bars.
“I wasn’t aware of the concept of jury nullification,” St. Louis told my colleague who recently interviewed him for the Cato Institute’s Free Society magazine. “If I could go back in time, and if I knew Turner faced 40 years, I would nullify.”
Even U.S. District Judge T.S. Ellis bristled at the mandatory 40-year term and lamented that he had “no discretion to change the punishment” because of a combination of mandatory minimums and stacked charges. As a juror, however, St. Louis did have a choice — one that judges and prosecutors go to considerable lengths to ensure juries don’t exercise.
St. Louis didn’t know at the time that he didn’t have to vote to convict, regardless of how strong the government’s case against Turner may have been. That’s because jurors in our system have the unquestioned power to acquit factually guilty defendants to prevent injustice, including the imposition of horrific trial penalties such as the one inflicted on Turner.
St. Louis could have asked what sentence would be imposed if Turner were convicted and what collateral consequences, such as permanent loss of certain civil rights, might also occur. And if that information were not forthcoming — as it most likely would not be — then he could draw whatever inference he wished from the refusal to provide such basic information, which would be available to anyone who cared to look it up.
With countless examples like St. Louis, Congress should consider legislation to help empower criminal juries to exercise their full measure of powers and prerogatives and better equip them to play their historic injustice-preventing role in our breathtakingly punitive criminal justice system. They could call it the Judicial Undermining Rights Originally Recognized (JUROR) Act.
The act would codify the institution of jury independence in statute by requiring federal judges to inform jurors of their historical powers and duties, including the prerogative to not only acquit against the evidence but also to ask questions and draw inferences based on how their questions are answered or ignored. Additionally, the act would ensure that judges apprise jurors that they are not obliged to accept the judge’s interpretation of the law. Had this law been in effect at the time, St. Louis could have asked, reasoned and acted — potentially saving Turner’s life.
At the founding, criminal jurors weren’t relegated to the role of mere fact-finders, as they are today. Historically, the institution of jury independence, which includes but is not limited to the power to acquit against the evidence, played a vital role in assessing the wisdom, fairness and legitimacy of a given prosecution. Founding-era jurors were tasked not just with finding facts but also with preventing injustice. Jurors could acquit factually guilty defendants if they perceived a law as immoral as applied to a specific case or if they considered the sentence disproportionate to the wrongfulness of the crime. Independent jurors can blunt the force of immoral laws and arbitrary prosecutions by refusing to subject their neighbors to unjust laws or overtly cruel punishment.
The institution of jury independence is nothing new. In 1735, dissident publisher John Peter Zenger was charged with seditious libel for criticizing New York’s royal governor. A New York jury acquitted Zenger in what came to be a celebrated early example of so-called jury nullification in the New World. Whether protecting dissident publishers such as Zenger from politically motivated prosecutions or acquitting abolitionists prosecuted for delivering fellow human beings from bondage under the Fugitive Slave Act, jurors acquitted against the evidence without controversy before, during and after the founding to shield victims of an excessively punitive government.
Just as Zenger’s jury defied a tyrannical governor, St. Louis likely would have defied an overly harsh drug law and blatant prosecutorial overcharging if only he’d known he could. The JUROR Act could ensure that future federal criminal jurors are cognizant of their historic powers and duties — allowing jurors to serve as guardians against unjust laws, precisely as the Framers intended.
Mike Fox is a legal fellow with the Cato Institute’s Project on Criminal Justice.
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