This one should be more self-contained! Let's get into it.
In the United States of America, like in many other countries, there are laws that restrict what you can and cannot do, and breaking certain laws can be crimes. The Sixth Amendment reads that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State" as "ascertained by law", and have "compulsory process." The Fifth Amendment describes that you cannot deprive "life, liberty or property" without "due process of law."
So that's the ideal: that's as it should be. But this system requires good will from a couple of sources. Perhaps the most important of those sources is the jury. The jury has to be "impartial" as James Madison wrote all those years ago: the jury must make a just decision. Alexander Hamilton in Federalist No. 83 calls the right to trial by jury "the very palladium of free government", "a defense against the oppressions" and "a barrier to the tyranny of popular magistrates." It is through the good will of the jury, that justice can be realized. Right?
To understand what power the jury really has, we have to look at where it came from. In 1670, Bushel's Case, the juror Edward Bushel, among others disagreed with the ruling of the judge. The judge found the jury in contempt of court, and fined them; in England, at the time, you would be imprisoned until you paid the fine. Bushel refused nonetheless. Chief Justice John Vaughan ruled that jury's could not be punished based on the verdict they returned, absolving Bushel. In 1735, this principle was exercised in the colonies, with Peter Zenger being charged with libel for criticizing the governor of New York. His lawyer, Andrew Hamilton (unfortunately not the father of Alexander Hamilton, what could have been...) called this "loss of liberty" to be "worse than death." He told the jury not to focus on the "small or private concern", but to look above at how this may "affect every freeman that lives under a British government in the main of America", to "take the cause of liberty" and go beyond the law. And despite the judge's instructions, the jury went beyond the law. This is jury nullification, when juries choose to take the matters of law into their own hands, and return a verdict different to the one they believe is according to the law. John Jay, the first Supreme Court justice, in 1794, instructed the jury that although a jury's domain was "questions of fact", they had the right to be "judge of both" fact and law, "to determine the law as well as the fact in controversy."
Alexander Hamilton, while not directly discussing jury nullification, did conclude that the jury had a role as a balance against tyranny, implying they should be able to override the law with their views if such views were unjust. And Andrew Hamilton before him argued the same, to prioritize liberty over law. But how do we determine if the law is just? The jury decides if the law is just. What happens then, if the jury rules the just law as unjust? And what if citizens take matters into their own hands, ignoring "due process" and finding themselves judge, jury, and executioner?
This tragedy was most realized in, of course, the lynchings. These were extrajudicial killings done by white Americans, accusing African Americans of committing horrible crimes, and killing them for it. Typically, these were hangings, but they were also done in other ways like shootings, burning, etc. And unfortunately, as bitterly as it was, the public, particularly the white majority, loved these killings. As sociologist Ida B. Wells-Barnett wrote, this was "the reign of the unwritten law", and "no colored man, no matter what his reputation, is safe from lynching if a white woman" "charges to charge him with insult or assault." She describes how the killings were done "with the greatest publicity", and how the mobs mutilated parts of victims to use as crowd souvenirs.
In 1955, Emmett Till, a fourteen year old boy visiting his family was accused of flirting with a wealthy white woman named Carolyn Bryant. Her husband Roy Bryant with the help of his half-brother J.W. Milam abducted him, driving him into a storage shed on Milam's property. They took turns "torturing and beating him with a pistol" before driving him to the edge of the river and shooting him in the head before dumping the body into the river, horrifically. An all-white, all-male jury was selected (since African Americans and women literally could not serve on a jury.) The prosecution was courageous as Till's great uncle gave an incredible testimony and identified the men who abducted the boy from his home, as did other witnesses from the family identify the body, and others still corroborated the story. His mother describes "the way how the jury chose to believe the ridiculous story of the defense attorneys, I just can't go into detail to tell you the silly things, the stupid things, that were brought up as possibilities", "just anything, just any excuse to acquit these two men." The jurors were only out for 67 minutes. For the equivalent of $50,000 in today's money, the savages sold their story to Look Magazine. The Look article describes how "by no means all, but the majority of white people in Mississippi either approve Big Milam's actions" or "don't disapprove enough to risk giving their 'enemies' the satisfaction of a conviction." The jury knew what they were doing. The two murderers lived happy, uneventful lives, both dying of cancer thirty or forty years later. Justice was never served.
Only forty years earlier was Leo Frank targeted for the same reason, accused of the rape and murder of a 13-year-old employee in his factory. Frank was a minority, targeted because he was Jewish. Populist Tom Watson, a prominent media figure and soon to be U.S Senator, published a serious of articles fueling the violence including the statement "Our little girl – ours by the eternal God! – has been pursued to a hideous death by this filthy perverted Jew from New York." The prosecution based the case off of the testimony of one Jim Conley, who contradicted himself four times, but used as the primary testimony nonetheless. Crowds chanted, "Hang the Jew!" His lawyers were too scared to be in the courtroom when the verdict was read, fearing they would be lynched. Of course, the evidence was far from sufficient, but the jury was not afraid to choose a verdict they found unlawful. Instead, some were afraid to choose the lawful one, for fear of being lynched themselves. Governor Slaton, believing Frank to be innocent had his sentence commuted to life in prison, which moved the "Knights of Mary Phagan" to storm the prison, kidnap Frank, and hang him the next day. They were never tried. Seventy years later, justice Oliver Wendell Holmes discussed the case's repugnance, describing, "Mob law does not become due process of law by securing the assent of a terrorized jury."
In these cases, as in many others like them, due process was ignored, and juries went against the law. In the first, the jury allowed the killers to get away with it out of prejudice, ruling a guilty man innocent. In the latter, they ruled an innocent man guilty, not because of the law but because of prejudice or fear of being targeted by those with prejudice. Jury nullification has been sold as the way to make the unjust law just, but it has at least as much so made the just law unjust.
Is jury nullification okay then? Should the courts really be arbitrators of morality? Should the law really be allowed to be selectively applied and molded to the whims of juries? Or should we, the people, change the unjust law instead of ripping on a bandage that at best risks corruption, and at worst enables fascism? Seventy years ago, a fourteen year old boy was killed to protect against "the tyranny of popular magistrates." But it seems the answer isn't to give any one person the power to preside over the righteousness of another, but to allow for the law to reflect our justice. Justice cannot be decided by the few; only by the many.