This summer's release of the documentary The Internet's Own Boy is reminding the public of the lamentable fate suffered by my friend and co-founder at Demand Progress, the technologist and activist Aaron Swartz. Aaron hanged himself early last year after federal prosecutors wielded against him the threat of decades in prison as punishment for downloading too many academic articles from the JSTOR cataloging service—he supposedly "hacked" MIT's notoriously open computer network.
He fell prey to a criminal justice system that has recently prominently pursued, or sought to pursue, the prosecution of activists like Barrett Brown, Jeremy Hammond, and Cecily MacMillan, as well as whistleblowers like Thomas Drake, Chelsea Manning, and Edward Snowden. And we mustn't forget, of course, that it regularly commits to prison thousands upon thousands of people whose names don't make headlines and aren't carried hundreds of miles via IRC channels or Twitter, or on the still-potent winds of the Occupy network—and are disproportionately poor people and people of color. It is structural racism epitomized.
All of the above feeds a daunting, seemingly intractable problem: 2.3 million Americans are behind bars, but there is little sign of meaningful revision to the structures that have trapped them there. Yet we needn't entrust our hopes for reform to risk-averse politicians who fear their constituents' reactions and, sometimes of greater bearing, those of their underwriters in the private prison industry. We can take matters into our own hands, by engaging in conscientious jury nullification—and perhaps force a reorientation of the entire criminal justice system.
Earlier this month, as I sat on a panel following the Washington, DC premiere of The Internet's Own Boy, a questioner asked what single act an individual could undertake to help make sure what happened to Aaron never happens again.
I've heard that question posed what seems like hundreds of times in the year and a half since Aaron's passing. There's a natural desire to divine the germ of something constructive out of such seemingly senseless tragedy. But I've only now formulated what feels like a satisfying answer, one deeper than encouraging people to sign up for activist email alerts or call a member of Congress. (While these tactics can of course be essential in the right places and at the right times, they are determinative of political outcomes only when part of mass actions.)
Here it is: targeted jury nullification. Most of us don't realize it, but each and every American has dispositive power over a small corner of our country's criminal justice complex—and we must choose to employ it. We should politicize the jury process by encouraging the conscientious exercise of the right of jurors to nullify unjust prosecutions. It's simple: A single juror has every right to hang a jury by declining to vote to convict a defendant who is prosecuted for an unjust crime, or whose prosecution is otherwise unethical, even if the defendant is likely to have violated the letter of the law.
If enough of us do so, we could jeopardize the stability of the modern criminal justice system, and compel its transformation into one that legitimately claims a focus on achieving justice.
Michelle Alexander, author of the seminal book The New Jim Crow, recognizes that the criminal justice system is highly leveraged, so to speak: Its continued functioning requires prosecutors to extract from defendants the quick acceptance of plea deals. Alexander argues that defendants should, en masse, stop pleading out: "If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers, or prison cells to deal with the ensuing tsunami of litigation."
"What can I, as an individual, do to make a difference?" You can vote to acquit, and thereby save a life, or at least a livelihood.
She's absolutely right about the likely results: The prosecutorial system as we know it would cease to function, forcing a new conversation about its purpose, and a much more targeted—and likely more virtuous—use of prosecutorial resources.
Yet Alexander's prescription—basically, asking the defendants to take their chances, together, and to strain the system—forces the accused into a literal variant of the famous Prisoner's Dilemma, but from a perch even more precarious than the subjects in the familiar paired-prisoner scenario. Rather than rely on the altruism of one peer, each accused must lean on the collective magnanimity of tens of thousands in order to secure the sought-after effect. That's far too severe a burden to expect them to bear.
Mass conscientious jury nullification would induce the desired outcome, while placing the onus primarily on those who have nothing to lose—the jurors—rather than on the most vulnerable.
The first impulse for many principled people who are called to jury duty is to seek a way to wriggle free. They're simply busy, or would rather not serve as a cog in a prejudiced system. But this is exactly the wrong inclination: They should instead proactively strive to be empaneled (without perjuring themselves, of course)—and to undermine unjust prosecutions.
Were even six percent of the population to commit to considering nullifying under appropriate circumstances, then more than half of 12-person juries would include at least one potential nullifier. The chance that the accused would not be convicted would incentivize a decline in plea deals (and plea deal offers with better terms) and the pursuit of more jury trials, concomitant resource strain, and eventually the fundamental reorientation of the criminal justice system that Alexander seeks.
Even if we fail to spark a movement so widespread that it achieves the powerful meta-effects that would flow from mass, collective nullification, the practice provides a satisfying reply to that question whose answer is so often elusive: "What can I, as an individual, do to make a difference?" You can vote to acquit, and thereby save a life, or at least a livelihood.
Let me quickly dismiss two common objections.
Some argue against jury nullification because white racists have in the past used it to decline to convict perpetrators of hate crimes. This has undoubtedly happened, but the federal government may take up cases where racial bias is understood to have determined a verdict. Moreover, nullification is but a tactic, and as with most tactics, people can use it for good or for ill. Jury nullification has a storied history of use in service of the common good: It was employed to protect those found in violation of the Fugitive Slave Act for facilitating the escape of slaves and to defend those prosecuted for supposedly seditious speech acts; and it is used in a quiet way, even today, in communities oppressed by discriminatory drug laws and other perversions of our justice.
To someone who expresses such concerns, one must also ask which is the weightier contemporary threat to the well-being of minority communities: criminal acts perpetrated by individual white racists, or a structurally racist criminal justice complex that currently incarcerates more than one million people of color?
The other objection—spoken by those with more authoritarian impulses—is that jurors simply can't be left to make such heady determinations about the fundamental righteousness of a law or prosecution. If you're a prosecutor or police officer who finds yourself thinking such thoughts then it's time to find a new profession. This line of reasoning implies a much deeper indictment of the criminal justice system as whole, whose essential legitimacy is predicated on the reasonability of the common man and woman, and their ability to distinguish fact from fiction and right from wrong.
Half of Americans believe Snowden is a hero. Tens of millions know that our drug laws are racist and cruel and recognize that much crime is but a surface projection of the deep rot of our socioeconomic structures. Aaron's prosecution has been roundly decried. If there's a legitimate threat that a juror who holds these convictions might choose to act upon them, then perhaps Snowden gets offered a reasonable plea deal (or chooses to come home without one yet secured); perhaps untold thousands are no longer imprisoned unjustly; and, perhaps, Aaron is still with us today.
So I beseech you: Nullify, if you're on a jury and it's the right thing to do. It's a hack of our criminal justice system that would have made Aaron proud.