All Commentary
Thursday, July 1, 1993

Requiring Citizens to Do Evil

Few jurors are aware of their jury nullification powers.

Michael Pierone is New Jersey coordinator of the Fully Informed Jury Association.

Does civil disobedience have any place in a lawful society? If so, under what circumstances, and if not, then what is the consequence? Recently the physician-host of a radio program answered a question about using marijuana to treat glaucoma. He told the listener that as a physician it was his responsibility to prescribe effective remedies even though it may violate the law, and so advised the listener to break the law if need be, but to preserve her own health. Should he have kept his silence?

We used to have slavery in this country, and naturally enough as a consequence, we had the Fugitive Slave Act. The intent of this legislation was to return slaves to their owners; harboring fugitive slaves would not be countenanced. Juries in the northern states routinely refused to convict people who by their own admission were quite clearly “guilty” of violating the law. Would it have served justice to convict the violators?

Today, the right to trial by jury is seriously compromised because jurors do not understand that they have the same right to disregard the direction of the judge as jurors who disregarded the judge when ruling on the justice of the Fugitive Slave Act. Unfortunately, judges are instructing jurors that they are to judge only the facts and that they must accept the law as the judge charges it to them.

We have tens of thousands of laws in this country now, some good, some not so good, some poorly applied to individual circumstances. Is it appropriate that the letter of the law be the rule, or should juries attempt to provide justice, rather than law?

A concrete example may be helpful here. As New Jersey coordinator for FIJA, the Fully Informed Jury Association, I have direct experience in civil disobedience. Recently I mailed letters to county prosecutors in New Jersey asking them their opinion as to the legality of passing out brochures to jurors describing their jury nullification powers. An early response from a prosecutor in Morris County was that I would be “tampering” with the jury to inform them of this power. What was FIJA’s response? We ignored the prosecutor’s advice and handed out the pamphlets anyway. No arrests were made, largely due to the fact that the press was present and that we also passed out a copy of the Governor’s Proclamation of Jury Rights Day, in which he describes jury nullification powers. But would it have served justice to heed the prosecutor’s warning? There is a good reason for jury tampering laws, but here we have a clear instance of misapplication of a good law. Jury tampering occurs when someone uses coercion or incentives to try to alter a juror’s verdict. What we were doing was informing the juror that he has a responsibility to use his conscience to arrive at his own verdict, rather than allow the judge to force him to rule against his own best judgment. Is it not the judge who is “jury tampering”?

In his essay on civil disobedience, Henry David Thoreau stated:

Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ, and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?

When government creates laws that require citizens to do evil to return fugitive slaves, to refrain from harboring Jews, to place Japanese-Americans in concentration camps, or to report on their neighbors, will not men of good conscience disobey and endure the consequences? Or is the virtue of obeying the law so overwhelming that we must abandon virtue itself?