The Right to Trial is Vanishing. Could Bolder Juries Save It?

When Paul St. Louis voted as a juror in 2017 to convict Frederick Turner for his role in a methamphetamine dealing ring, St. Louis had no idea that prosecutors would stack the charges in such a way that Turner, a first-time offender, received a 40-year mandatory minimum sentence.

The judge presiding over the trial declared Turner’s sentence “excessive” and “wrong,” but had no choice but to impose it. Less than a year later, Turner, 38, was found dead in his cell at a high-security federal prison in Colorado.

Ever since, St. Louis has been haunted by Turner’s death, and the knowledge in hindsight that there may have been more he could have done in his role as a juror.

“If I could go back in time, and if I knew Frederick faced 40 years, I would vote to acquit him,” St. Louis said in a new jury-education campaign launched this week by the Cato Institute, a libertarian think tank. “I could have asked what sentence would be imposed. I could have drawn my own conclusions if no one would answer. And I could have voted my conscience.”

The nonpartisan initiative, Your Verdict Counts, aims to educate jurors on three things the Cato Institute says they should know but are rarely, if ever, told: that jurors have the right to decide if a law is unjust or being applied unjustly, the right to ask what the consequences of a conviction will be, and the right to vote their conscience based on those factors without fear of punishment.

“Jurors are not just called to go in and check boxes and determine if somebody technically violated the law,” says Matthew Cavedon, director of the Cato Institute’s Project on Criminal Justice. “Their job is to use their conscience and their sense of justice, to figure out whether somebody deserves to have their lives, their liberty, or their property denied. That’s a completely different task than the one that judges and lawyers often insist is all that a jury is supposed to do.”

In addition to the website, the Cato campaign will include a series of in-person events in Richmond, Virginia. Cavedon said the Cato Institute chose Richmond for the initiative because Virginia allows convicted defendants to ask to be sentenced by a jury, rather than a judge—a rare if not wholly unique feature of its criminal justice system. Richmond also has a particularly zealous defense bar.

The act of acquitting or refusing to indict a criminal defendant based on moral objections to the laws or charges in question, regardless of whether the defendant is technically guilty, is commonly called “jury nullification,” and it’s a controversial subject in the legal profession.

As George Mason University law professor Ilya Somin wrote at The Volokh Conspiracy in 2018, nullification undermines the rule of law in a system where the criminal codes are more or less uniformly applied, but in the real world it has become, unfortunately,  “a counterweight to the enormous discretionary power already wielded by government officials.”

The Cato campaign conspicuously avoids the term nullification, which Cavedon says gives a rebellious shade to a proper and traditional check on government overreach.

It’s more important than ever for juries to exercise that power, the Cato Institute argues, because juries so rarely can anymore. A Pew Research Center report found that in 2018, only 2 percent of federal criminal cases went to trial. Lengthy mandatory minimum sentences give prosecutors so much leverage over defendants that turning down a plea deal and going to trial becomes an irrationally risky choice. Defendants who turn down plea deals and get convicted, such as Turner, get hammered at sentencing, a phenomenon that criminal justice advocates call the “trial penalty.” The result is that the constitutional right to trial has largely vanished.

The Cato Institute argues that emboldened juries would be a safeguard in a justice system that has mostly taken away judges’ ability to consider individual defendants at sentencing.

However, although jurors can’t be punished for voting their conscience, it’s practically verboten to talk about inside courthouses. Attorneys are usually barred from talking about nullification with juries, and doing so can be grounds for a mistrial.

In 2019, a divided 2nd Circuit Court of Appeals panel chastised a federal judge who complained about an overzealous prosecution and said the case before him “call[ed] for jury nullification.”

Over the years, activists have even been arrested and convicted on jury tampering charges for handing out flyers about nullification outside courthouses, leading to First Amendment lawsuits. In 2022, the 2nd Circuit ruled that a New York man’s free speech rights were violated when he was arrested outside a Bronx courthouse for doing so.

Despite courts’ deep uneasiness with the concept, the Cato Institute argues that there is a long and strong tradition of American juries using their power to resist unjust laws and charges, from the acquittal of Peter Zenger in a famous 1735 libel case to northern juries’ refusal to convict defendants of aiding fleeing slaves under the Fugitive Slave Act.

Likewise, Reason‘s Damon Root wrote in 2018 on the originalist case for jury nullification, finding that there’s “good evidence that many 18th and 19th century Americans understood juries to possess the lawful power to reject guilty verdicts when the jurors believed the underlying law was unconstitutional.”

The concerns that motivated those Americans, Cavedon says, are much the same as today’s.

“There’s such a feeling in America today that government is distant, and that especially lawyers and judges are just part of the elite class, making decisions without the good sense of the people. That’s been a concern all throughout American history, and the jury is supposed to be the antidote,” Cavedon says. “The jury is literally government by the people, and we have lost something in shifting the most important function of the government, criminal punishment, to behind closed doors, to negotiations between lawyers, to a quick sign-off by a judge. That is not the freedom and the democratic order that we were promised.”