By Mark Jordan

In the face of an overwhelming crisis in the American criminal justice system, where mass incarceration has reached staggering levels, individuals are left searching for ways to effect real change. As of 2023, the United States supports the highest incarceration rate in the world, with 2 million people behind bars. This crisis disproportionately affects communities of color and the poor, entrenching cycles of poverty and systemic racism. Despite growing calls for reform, legislative efforts remain slow and often ineffective. In this context, jury nullification emerges as a powerful tool for citizens to push back against unjust laws and a system that perpetuates mass incarceration. By exercising their right to nullify unjust prosecutions, jurors can send a clear message of protest and, in doing so, contribute to meaningful change.

Jury nullification occurs when a jury, despite finding the facts of the case align with the prosecution’s charges, decides to acquit the defendant because the law itself is unjust, or its application in the case is inequitable. This practice is rooted in the power of the jury to render a verdict that reflects not only a judgment of the facts but also the conscience of the community. It is a recognized, albeit controversial, part of the American legal system that has been used in various forms throughout history. Most notably, it was used to resist the Fugitive Slave Act in the 19th century and to acquit activists prosecuted for civil disobedience during the Civil Rights Movement.

In the current era, jury nullification offers a direct means to resist the mechanisms of mass incarceration. When faced with cases where offenders are swept into prison under draconian sentencing laws or unjust practices, jurors can choose to reject the automatic functioning of the system. They can assert that while the defendant may have technically broken the law, not only is it likely that the punishment is disproportionate or the law itself immoral or outdated, but the very perpetuation of a system that uses imprisonment as a response to criminal offending is something worthy of protest. Nullification in these contexts lets those in charge of the criminal justice system know that we have had enough and will no longer condone the systemic and inherent tortures of mass incarceration. In this way, nullification serves as an act of civil disobedience by ordinary citizens, disrupting a system that too often prioritizes punishment over justice.

Mass incarceration is driven by laws that disproportionately target vulnerable populations, such as mandatory minimum sentencing statutes, three-strikes rules, and harsh drug laws. These policies-many championed by Senator Joe Biden-are remnants of the so-called “War on Drugs” and “tough on crime” era which disproportionately impacted communities of color and exacerbated the over-policing of urban areas. While political figures have begun to acknowledge the failures of these policies, substantive change remains elusive. In this climate, jury nullification offers an immediate and potent counterbalance.

For example, a juror in a drug possession case might decide that while the defendant did possess a controlled substance, the application of mandatory minimum sentencing laws would result in an unjustly long prison term. By nullifying the charge, the jury rejects not only the punishment but also the legitimacy of laws that perpetuate mass incarceration for minor offenses. This form of protest does not require waiting for a slow and often gridlocked legislative process to repeal or amend laws; it allows citizens to take action at the moment when injustice is poised to occur.

One of the key strengths of jury nullification is that it empowers ordinary people to directly influence the criminal justice system. In a system that often seems impenetrable and unresponsive to calls for reform, the jury box becomes a venue where citizens can exercise power. Instead of passively accepting the laws and sentencing structures imposed by legislators, jurors can engage with the moral and ethical implications of the cases before them. They are no longer merely arbiters of fact, but agents of justice capable of pushing back against the machinery of mass incarceration.

Moreover, jury nullification can be a profound tool for communities disproportionately harmed by mass incarceration. African Americans, for instance, are incarcerated at more than five times the rate of white Americans. In areas where the criminal justice system is viewed with deep suspicion, encouraging awareness of nullification as a form of protest could enable communities to resist policies that continue to harm them. Jurors can reject prosecutions based on racial profiling, over-policing, and other discriminatory practices, thereby protecting their communities from further harm.

Despite its potential, jury nullification is not without controversy. Critics argue that nullification could lead to inconsistency in the application of justice, with verdicts driven more by jurors' personal beliefs than the rule of law. Some fear it could undermine legal authority and lead to chaos in the courtroom. However, these criticisms overlook the systemic injustices that jury nullification seeks to address. The very laws that critics wish to see uniformly applied are often the same laws that create the conditions for mass incarceration. Uniformity in applying unjust laws is not justice; it is the perpetuation of injustice.

Furthermore, juries have always been tasked with bringing their moral compass into the courtroom. The legal system recognizes that laws are not infallible and that juries serve as a check on the state’s power. In many ways, nullification is an extension of this principle, allowing citizens to resist the state’s overreach and to protect individual rights in the face of oppressive laws.

Jury nullification is not just a legal option—it is a moral imperative in the fight against mass incarceration. At a time when legislative change seems inadequate to address the magnitude of the crisis, nullification offers a way for ordinary citizens to engage directly with the system. By refusing to enforce unjust laws, or criminal laws generally, jurors can protect their communities, uphold principles of fairness, and contribute to the dismantling of mass incarceration. This power should not be taken lightly, but neither should the opportunity to use it as a force for justice. As the criminal justice system continues to incarcerate millions, jury nullification stands as a crucial tool for protest and reform. It is a way for individuals to say no to unjust laws and to demand a fairer, more humane system for all.

By Mark Jordan