Learning about the myriad ways our legal system destroys people’s lives can be overwhelming and leave people wondering what they can do about it. All over the country, people are exploring and finding creative ways to use their individual and collective power to fight back. One of the most direct and concrete ways to say no to the mass incarceration machine is by serving on a jury. However, some systemic issues stand in the way.

This story also appeared in Baltimore Courtwatch

The Baltimore City Circuit Court website refers to jury trials as “the foundation of the American judicial system.” As such, the history of jury duty in this country is, unsurprisingly, a history of the systematic exclusion of and harm to Black people, women, indigenous people, and other marginalized communities. Currently, jury pools are selected from voter registration rolls. Nominal victories to expand the right to serve on juries are systematically undermined by white supremacy. The game is rigged, and white supremacy will always win. 

In Maryland, the barriers to fair and representative jury pools are firmly and deeply entrenched. Maryland is one of 12 states where Black people make up more than 50% of the incarcerated population. In fact, a 2021 report by The Sentencing Project, an organization that advocates for legal system policy reforms with a racial justice lens, found that in Maryland, 71% of incarcerated people are Black – the highest rate in the country. Black people make up just 29% of the total population. State Senator Jill P. Carter (D) has led efforts over the last few years to address some of these systemic issues. These include raising jury pay and reinstating people with a criminal conviction to the jury pool

Jury nullification is a concept that is hundreds of years old. It has been used by jurors who refuse to find people guilty in cases involving escaped enslaved people, union busting, war resisters, alcohol and cannabis prohibition, and other unjust laws.

Like most reform efforts, it’s useful to consider what a victory would truly mean. Surely it’s better, but what good is a more representative jury that still enforces the laws produced and maintained by white supremacy? Enter the concept of jury nullification. 

Jury nullification is a concept that is hundreds of years old. It has been used by jurors who refuse to find people guilty in cases involving escaped enslaved people, union busting, war resisters, alcohol and cannabis prohibition, and other unjust laws. In the last several decades, prison-industrial complex abolitionists have advocated for people of conscience to use this power in all cases. 

Beyond criminal courts is a digital resource hub collaboratively created by abolitionist organizations working to dismantle the entire prison industrial complex. Their jury nullification toolkit describes it as “a concrete, practical way that jurors can assert their values and express their moral disagreement with unjust laws and punishment, by refusing to convict someone who is being charged with a crime.”

Many people react to a jury summons by asking, “How do I get out of this?” For people who are disgusted by courthouses and the administration of laws in this system, it can feel like participating in that oppressive system. Public defenders and defense attorneys often privately complain that many people who are skeptical of police and the criminal justice system will intentionally work to have themselves removed. The effect is that juries are even further from a representative and just process.

Jury nullification is an opportunity to use your power as an individual to intervene and preserve one person’s freedom. It is a rejection of punitive justice, a recognition of the harm being caused by the prosecution, and a refusal to turn your back on the person being prosecuted. Courts recognize that this is a denial of and threat to their legitimacy. 

Judges and prosecutors actively discourage or prevent nullification from even being discussed. Federal courts have ruled that defense attorneys cannot mention jury nullification to jurors, judges can remove jurors who indicate they will nullify, and judges can instruct jurors that they would be breaking their oath if they nullify. Public interest attorney Jordan Paul describes it as the “erosion of the right to jury nullification.” 

In unconnected 2015 cases, two Coloradans and a Michigander were charged with jury tampering for passing out pamphlets with information on jury nullification outside a courthouse. Both cases were fought all the way to the highest courts in their states. Both won their appeal, with many, including the ACLU, defending their First Amendment right to discuss jury nullification. 

In 2020, the Supreme Court of Maryland recognized the threat to the system and ruled that jurors have the “inherent ability” but not the “authority” to engage in jury nullification. But they recognized that juries have the power to nullify and that jury nullification occurs. 

While you may be removed for stating your intentions to nullify, the truth is that an individual always has the power to act on their conscience to stop injustice, and no one can force you to discuss why you made your decision on a jury. You can commit to not convict a person based on your own reasoning and try to convince your fellow jury members to take the standard of “beyond a reasonable doubt” seriously.

At a moment of rising fascism, jurors across the country will be asked to decide cases involving abortion, drag show bans, resistance to police training facilities and many other attacks on marginalized people. If you are called to serve on a jury in Baltimore, in addition to the above examples, you may be asked to decide on a case where police planted evidence. Or where a teenager was targeted and arrested for “displaying the characteristics of an armed person.” Or where a man was shot by police and subsequently charged – as five sets of juries did in the case of Keith Davis Jr. All of these cases will be inextricably tied to the Baltimore Police Department with its anti-Black past and present. 

We encourage you to research jury nullification for yourself and consider showing up for jury duty to exercise your power to keep a human out of a cage. It is a small way to show up for others. Each jury holds someone’s freedom in their hands, and every guilty verdict we allow empowers and emboldens this system.

Baltimore Courtwatch is made up of Baltimore citizens who watch court proceedings and report what they see in order to hold court actors accountable and end the injustice of the criminal legal system. Learn more about them at baltimorecourtwatch.org