Good Jurors, Bad Laws

After convicting Occupy activist Cecily McMillan of felony assault on a police officer on May 5, twelve jurors walked into the light and discovered that they had, perhaps, condemned the twenty-five-year-old to turning thirty on Rikers Island. “Most just wanted her to do probation, maybe some community service,” said one juror to the Guardian. “But now what I’m hearing is seven years in jail? That’s ludicrous. Even a year in jail is ridiculous.” The trial was a travesty, as has been reported elsewhere: the judge was prosecutorial, the officer’s history of violence was disallowed in court, and the crux of the case—whether Cecily had intentionally elbowed Officer Grantley Bovell in the face as he cleared the park of Occupy activists on the movement’s six-month anniversary—was supported only by a blurry video.

But suppose the trial had been fair and McMillan guilty. Should she have gone to prison for the New York State recommended sentence of two to seven years, for an action that in ice hockey carries two to five minutes in the penalty box?

McMillan’s jurors, who found her guilty, thought no. Nine out of twelve signed a letter to the judge begging for no jail time. The jurors’ pleas that they had not been told the sentencing guidelines, and were in fact forbidden by the judge from looking them up, were at that point as formally useless as the protesters’ #NoJail4Cecily signs. But what could the jurors have done differently?

Last year a different sort of protest sign appeared outside the Judiciary Square Metro stop in Washington, D.C. Funded by supporters of the Fully Informed Jury Association (FIJA), it read, “Good jurors nullify bad laws.” FIJA’s sign referred to jury nullification, a practice by which jurors may find a defendant “not guilty” because they disagree with the law under which the defendant is being prosecuted. Americans used jury nullification in the mid-1800s to defy the Fugitive Slave Act and later to defy Prohibition.

In a 2008 symposium on jury duty in this magazine, the editors quoted Alexis de Tocqueville’s observation that “the jury is . . . above all a political institution.” Considering that a whopping 88 percent of respondents to a 2008 Pew Poll thought too many nonviolent offenders were locked away, we might consider harsh sentencing a proper target for jurors’ political agency.

When jury nullification was adopted in the 1800s, it expressed many political perspectives, including resistance to the violent oppression of black people in America. Today, black people constitute about 1 million of the 2.3 million incarcerated people in the United States. One in three black men will be arrested in their lifetimes. Our prisons feature forced labor, physical abuse, rape, deficient physical and mental health care, and a use of solitary confinement that has drawn condemnation from the Inter-American Commission on Human Rights. The policies of the...