Juries as a Bulwark Against Oppression
Imagine at 22, you were driving recklessly with a group of friends when a drunk driver crossed the center line and hit you head-on, killing several of your passengers. If you think the grief from feeling responsible for the death of your friends would be unfathomable, imagine the state charged you with causing your friends’ deaths, confining you to an approximately 70-square-foot cage for over three decades.
In 2022, Floridian Devin Perkins was driving 100 mph in a posted 35 mph zone when a drunk driver going the wrong way slammed into him, killing three of his passengers before fleeing the scene. Prosecutors charged Perkins with three counts of vehicular homicide and one count of reckless driving resulting in serious bodily injury. Perkins rejected a plea offer recommending 10 to 20 years in prison, opting to exercise his Sixth Amendment right to a jury trial.
At his September trial, jurors convicted Perkins after deliberating for just 20 minutes. Awaiting sentencing, Perkins faces a possible life sentence and a mandatory minimum of over three decades behind bars. Perkins made a terrible mistake—one he should certainly be held accountable for. But the penalty is excessive, particularly in light of the reality that several of the victim’s family members have even said that he should never have been charged.
The Framers entrusted jurors to wrestle with the toughest of questions to resolve disputes between citizens and their government. It is no accident that the jury trial is the constitutionally prescribed mechanism by which we adjudicate criminal cases. The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” After much deliberation, the Framers chose their words carefully. They knew from experience that having a powerful, disconnected government posed an existential threat to their freedoms. So, they counted on their neighbors to shield them against government oppression.
At the Founding, criminal jurors were not relegated to the role of mere factfinders, 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 an important role in assessing the wisdom, fairness, and legitimacy of a given prosecution. Founding-era jurors were tasked not just with finding facts, but 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.
This practice is widely known as “jury nullification,” but that term is misleading because only judges can nullify laws, whereas the most jurors can do is simply refuse to convict a given defendant in a particular prosecution. Unlike when a judge strikes down a law, when jurors exercise their power to acquit against the evidence, the law remains on the books, and prosecutors remain free to enforce the same law again, even against that same defendant. Thus, a more precise term is “conscientious acquittal.”
Independent jurors have the prerogative to not only acquit against the evidence but also to ask questions and draw inferences based upon how their questions are answered or ignored. Additionally, independent jurors can refuse to accept the judge’s interpretation of the law despite being told they must. In Devin Perkins’ case, the judge did not inform jurors of their power to acquit against the evidence. Nor did the judge tell jurors that, if convicted, Perkins would serve at least thirty years—and up to life in prison. Had jurors known all this, perhaps they might have acquitted him.
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 like Zenger from politically motivated prosecutions or acquitting abolitionists prosecuted for delivering fellow human beings from bondage under the Fugitive Slave Act, jury nullification was employed without controversy before, during, and after the Founding to safeguard victims of an excessively punitive government.
The recent prosecution of Daniel Penny in New York City illustrates how judges sometimes mislead jurors into believing they lack the power to acquit against the evidence. While it may have been reasonable for prosecutors to decline to file charges, the decision to prosecute is not the final say. When reasonable people can disagree about whether someone committed a criminal act, the Framers left it to a jury of ordinary citizens to determine that person’s fate. Penny had his day in court. He had the opportunity to face his accuser and question the witnesses against him. The prosecution tried and failed to prove its case beyond a reasonable doubt.
Jurors eventually acquitted Penny of the lesser criminally negligent homicide count after the prosecution moved to dismiss the more serious second-degree manslaughter count due to a deadlocked jury. However, there is more to Penny’s case than meets the eye: New York pattern jury instructions inform jurors that if the state proves every element of the charged offense beyond a reasonable doubt, they must convict. This means that whenever anyone, including President Donald Trump, exercises their Sixth Amendment right to a jury trial in the New York court system, they are not tried by the truly impartial jury that the Sixth Amendment commands. Why? Because the judge will explicitly—and erroneously—tell jurors that they may not exercise their prerogative to acquit against the evidence. This jury instruction—despite having been upheld by the New York Court of Appeals—renders convictions infirm, violates the Sixth Amendment, and poses serious due process concerns.
While prosecutors had a weak case against Penny, he may also have benefited from key provisions of the Sixth Amendment right to a trial by jury—including the Vicinage Clause. The Vicinage Clause ensures that jurors come from the community where the alleged crime was committed, precisely because the Framers did not want jurors to be far removed from the cases they adjudicate. The Framers envisioned jurors with similar lived experiences. While New Yorkers may disagree as to whether Penny’s response was appropriate—like Penny—many have likely encountered severely mentally ill individuals while riding the subway.
The Framers devised a system where defendants might well be personally known to jurors. Yet in jury selection today, people who know the accused are nearly always struck. By refusing to subject their neighbors to unjust laws or overtly cruel punishment, independent jurors can pass judgment on immoral laws and arbitrary prosecutions. Independent jurors force legislators and prosecutors to be more responsive to the will of the people.
The Vicinage Clause helped ensure Penny’s jury was not too far removed from his predicament. The Clause required jurors in Penny’s case to reside in Manhattan, where it is seemingly impossible to strike every eligible juror who has had an uncomfortable encounter on the subway.
Another key provision of the Sixth Amendment is the right to an impartial jury. What constitutes an appropriately impartial jury for constitutional purposes remains largely undefined. One might well argue that striking all jurors who express sympathy towards jury nullification undermines the constitutional requirement of jury impartiality. Nevertheless, judges and prosecutors have created a framework that all but guarantees that anyone who expresses support for jury nullification—or any other facet of jury independence—is excluded from jury service.
And across the nation, judges routinely mislead jurors with incomplete or even inaccurate jury instructions. Judges say things like “Your role is to be a judge of the facts.” Judges tell jurors they cannot consider punishment in rendering a verdict since sentencing is left up to the judge. Judges inform jurors that they must apply the law even if they disagree with the premise of the law. And perhaps most importantly, judges sometimes tell jurors, “If the state proves every element of the charged offense beyond a reasonable doubt, you must convict.”
As noted above, the notion that jurors must convict just because the state meets its evidentiary burden is demonstrably false. Jurors can convict if the state proves every element beyond a reasonable doubt but are not obligated to do so.
All this raises the question of why judges and prosecutors insist on misleading criminal jurors about their proper role. Consider the ongoing case of John Moore and Tanner Mansell. They were operating a charter boat in Florida and came across a fishing line they believed to be the work of poachers. They hauled in the line, released several fish, and took the rig back to the marina after notifying state officials. It turned out they were mistaken and had actually stumbled onto a bona fide research project. The US Department of Justice pursued felony charges against Moore and Mansell for theft of property within the “special maritime jurisdiction” of the United States.
A jury reluctantly convicted Moore and Mansell after sending out multiple notes to the judge and nearly deadlocking. The Eleventh Circuit reluctantly affirmed, with one judge—herself a former federal prosecutor—penning a concurrence in which she castigated by name the Assistant United States Attorney who prosecuted the case for “taking a page out of Inspector Javert’s playbook.” She noted that Moore and Mansell “never sought to derive any benefit from their conduct” and have been branded as lifelong felons “for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in.”
The Cato Institute filed an amicus brief in Moore’s and Mansell’s case, arguing that “[i]t is highly doubtful that a Founding-era jury, fully cognizant of their historic powers and duties, would have branded John Moore and Tanner Mansell lifelong felons for their misguided attempt to fulfill what they perceived to be a civic duty.”
The Framers did not intend for it to be easy to deprive citizens of their liberty, and they established 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.
Prosecutors understand that Founding-era informed jurors seriously threaten the government’s ability to dispose of cases on its own terms. And many judges—who are disproportionately former government lawyers themselves—are likely to keep going along with it. Thus, even though jurors indisputably have the power to acquit against the evidence, it’s a safe bet prosecutors will do everything in their power to ensure jurors remain ignorant of it.
So, the next time you get summoned for jury duty, rather than view it as a burden, try to see it instead as an opportunity for public service—because you just might have the opportunity to save your neighbor from government oppression.