John Whitehead's Commentary
Not Guilty: The Power of Nullification to Counteract Government Tyranny
“The people have the power, all we have to do is awaken that power in the people. The people are unaware. They’re not educated to realize that they have power. The system is so geared that everyone believes the government will fix everything. We are the government.”—John Lennon
How do you balance the scales of justice at a time when Americans are being tasered, tear-gassed, pepper-sprayed, hit with batons, shot with rubber bullets and real bullets, blasted with sound cannons, detained in cages and kennels, sicced by police dogs, arrested and jailed for challenging the government’s excesses, abuses and power-grabs?
Politics won’t fix a system that is broken beyond repair.
No matter who sits in the White House, the shadow government will continue to call the shots behind the scenes.
Relying on the courts to restore justice seems futile.
Indeed, with every ruling handed down, it becomes more apparent that we live in an age of hollow justice, with government courts, largely lacking in vision and scope, rendering narrow rulings focused on the letter of the law. This is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.
Even so, justice matters.
It matters whether you’re a rancher protesting a federal land-grab by the Bureau of Land Management, a Native American protesting an oil pipeline that will endanger sacred sites and pollute water supplies, or an African-American taking to the streets to protest yet another police shooting of an unarmed citizen.
Unfortunately, protests and populist movements haven’t done much to push back against an authoritarian regime that is deaf to our cries, dumb to our troubles, blind to our needs, and accountable to no one.
It doesn’t matter who the activists are (environmentalists, peaceniks, Native Americans, Black Lives Matter, Occupy, or the Bundys and their followers) or what the source of the discontent is (endless wars abroad, police shootings, contaminated drinking water, government land-grabs), the government’s modus operandi has remained the same: shut down the protests using all means available, prosecute First Amendment activities to the fullest extent of the law, and discourage any future civil uprisings by criminalizing expressive activities, labelling dissidents as extremists or terrorists, and conducting widespread surveillance on the general populace in order to put down any whispers of resistance before it can take root.
Thus, if there is any means left to us for thwarting the government in its relentless march towards outright dictatorship, it may rest with the power of juries and local governments to invalidate governmental laws, tactics and policies that are illegitimate, egregious or blatantly unconstitutional.
Just recently, in fact, an Oregon jury rejected the government’s attempts to prosecute seven activists who staged a six-week, armed takeover of the Malheur National Wildlife Refuge.
In finding the defendants not guilty—of conspiracy to impede federal officers, of possession of firearms in a federal facility, and of stealing a government-owned truck—the jury sent its own message to the government and those following the case: justice matters.
The Malheur occupiers were found not guilty despite the fact that they had guns in a federal facility (their lawyers argued the guns were “as much a statement of their rural culture as a cowboy hat or a pair of jeans”). They were found not guilty despite the fact that they used government vehicles (although they would argue that government property is public property available to all taxpayers). They were found not guilty despite the fact that they succeeded in occupying a government facility for six weeks, thereby preventing workers from performing their duties (as the Washington Post points out, this charge has also been used to prosecute extremist left-wingers and Earth First protesters).
Many other equally sincere activists with eloquent lawyers and ardent supporters have gone to jail for lesser offenses than those committed at the Malheur Refuge, so what made the difference here?
The jury made all the difference.
These seven Oregon protesters were found not guilty because a jury of their peers recognized the sincerity of their convictions, sympathized with the complaints against an overreaching government, and balanced the scales of justice using the only tools available to them: common sense, compassion and the power of the jury box.
Jury nullification works.
As law professor Ilya Somin explains, jury nullification is the practice by which a jury refuses to convict someone accused of a crime if they believe the “law in question is unjust or the punishment is excessive.” According to former federal prosecutor Paul Butler, the doctrine of jury nullification is “premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished.”
Imagine that: a world where the citizenry—not the government or its corporate controllers—actually calls the shots and determines what is just.
In a world of “rampant overcriminalization,” where the average citizen unknowingly breaks three laws a day, jury nullification acts as “a check on runaway authoritarian criminalization and the increasing network of confusing laws that are passed with neither the approval nor oftentimes even the knowledge of the citizenry.”
Indeed, Butler believes so strongly in the power of nullification to balance the scales between the power of the prosecutor and the power of the people that he advises:
If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.
In other words, it’s “we the people” who can and should be determining what laws are just, what activities are criminal and who can be jailed for what crimes.
Not only should the punishment fit the crime, but the laws of the land should also reflect the concerns of the citizenry as opposed to the profit-driven priorities of Corporate America.
This is where the power of jury nullification is so critical: to reject inane laws and extreme sentences and counteract the edicts of a profit-driven governmental elite that sees nothing wrong with jailing someone for a lifetime for a relatively insignificant crime.
Of course, the powers-that-be don’t want the citizenry to know that it has any power at all.
They would prefer that we remain clueless about the government’s many illicit activities, ignorant about our constitutional rights, and powerless to bring about any real change.
In an age in which government officials accused of wrongdoing—police officers, elected officials, etc.—are treated with general leniency, while the average citizen is prosecuted to the full extent of the law, jury nullification is a powerful reminder that, as the Constitution tells us, “we the people” are the government.
For too long we’ve allowed our so-called “representatives” to call the shots. Now it’s time to restore the citizenry to their rightful place in the republic: as the masters, not the servants.
Nullification is one way of doing so.
Various cities and states have been using this historic doctrine with mixed results on issues as wide ranging as gun control and healthcare to “claim freedom from federal laws they find onerous or wrongheaded.”
Where nullification can be particularly powerful, however, is in the hands of the juror.
The reality with which we must contend is that justice in America is reserved for those who can afford to buy their way out of jail.
For the rest of us who are dependent on the “fairness” of the system, there exists a multitude of ways in which justice can and does go wrong every day. Police misconduct. Prosecutorial misconduct. Judicial bias. Inadequate defense. Prosecutors who care more about winning a case than seeking justice. Judges who care more about what is legal than what is just. Jurors who know nothing of the law and are left to deliberate in the dark about life-and-death decisions. And an overwhelming body of laws, statutes and ordinances that render the average American a criminal, no matter how law-abiding they might think themselves.
If you’re to have any hope of remaining free—and I use that word loosely—your best bet remains in your fellow citizens.
Your fellow citizens may not know what the Constitution says (studies have shown Americans to be abysmally ignorant about their rights), they may not know what the laws are (there are so many on the books that the average American breaks three laws a day without knowing it), and they may not even believe in your innocence, but if you’re lucky, those who serve on a jury will have a conscience that speaks louder than the legalistic tones of the prosecutors and the judges and reminds them that justice and fairness go hand in hand.
That’s ultimately what jury nullification is all about: restoring a sense of fairness to our system of justice. It’s the best protection for “we the people” against the oppression and tyranny of the government, and God knows, we can use all the protection we can get. It’s a powerful way to remind the government—all of those bureaucrats who have appointed themselves judge, jury and jailer over all that we are, have and do—that we’re the ones who set the rules.
We could transform this nation if only Americans would work together to harness the power of their discontent.
Unfortunately, the government’s divide and conquer tactics are working like a charm.
Despite the laundry list of grievances that should unite “we the people” in common cause against the government, the nation is more divided than ever by politics, by socio-economics, by race, by religion, and by every other distinction that serves to highlight our differences.
The real and manufactured events of recent years—the invasive surveillance, the extremism reports, the civil unrest, the protests, the shootings, the bombings, the military exercises and active shooter drills, the color-coded alerts and threat assessments, the fusion centers, the transformation of local police into extensions of the military, the distribution of military equipment and weapons to local police forces, the government databases containing the names of dissidents and potential troublemakers—have all conjoined to create an environment in which “we the people” are more divided, more distrustful, and fearful of each other.
What we have failed to realize is that in the eyes of the government, we’re all the same.
In other words, when it’s time for the government to crack down—and that time is coming—it won’t matter whether we supported Hillary or Trump, whether we stood with the pipeline protesters or opposed BLM, or whether we spoke out against government misconduct and injustice or remained silent.
When the government cracks down, we’ll all suffer.
Here’s the thing: the government wants a civil war.
The objective: compliance and control.
Its strategy: destabilize the economy through endless wars, escalate racial tensions, polarize the populace, heighten tensions through a show of force, intensify the use of violence, and then, when all hell breaks loose, clamp down on the nation for the good of the people and the security of the nation.
The government has been anticipating and preparing for such a civil uprising for some time now.
Those protests in Ferguson, Baltimore and Baton Rouge to protest police brutality? The militarized police “clad in Kevlar vests, helmets, and camouflage, armed with pistols, shotguns, automatic rifles, and tear gas” turning towns into war zones? The kenneling of pipeline protesters in North Dakota?
Those were just dress rehearsals for the government to work out the kinks in its operating manual on how to deal with civil unrest.
They were also previews of what’s in store if we continue to challenge the powers-that-be.
After all, it’s hard to persuade anyone to stand against tyranny when all you can promise them as a reward is persecution, prosecution and a one-way trip to the morgue. And when the outcome seems to be a foregone conclusion—the government always wins—it can seem pointless, even foolhardy, to dare to challenge the system.
So how do you not only push back against the police state’s bureaucracy, corruption and cruelty but also launch a counterrevolution aimed at reclaiming control over the government using nonviolent means?
You start by changing the rules and engaging in some (nonviolent) guerilla tactics.
Employ militant nonviolent resistance and civil disobedience, which Martin Luther King Jr. used to great effect through the use of sit-ins, boycotts and marches.
Take part in grassroots activism, which takes a trickle-up approach to governmental reform by implementing change at the local level (in other words, think nationally, but act locally).
And then, as I explain in more detail in my book Battlefield America: The War on the American People, nullify everything. Nullify the court cases. Nullify the laws. Nullify everything the government does that is illegitimate, egregious or blatantly unconstitutional.