A new campaign from the Cato Institute seeks to inform jurors of their prerogatives to follow their conscience when confronted with laws or punishments they deem unjust.
When Paul St. Louis served as a juror in 2017 and helped convict Frederick Turner for his role in a methamphetamine distribution network, he had no notion that prosecutors would structure the charges in a way that led a first-time offender to receive a 40-year mandatory minimum sentence.
The judge overseeing the trial described Turner’s sentence as “excessive” and “wrong,” yet was left with no option but to impose it. Less than a year later, Turner, aged 38, was found unresponsive in his cell at a high-security federal prison in Colorado.
Since that moment, St. Louis has been haunted by Turner’s death, and by the retrospective realization that he might have acted differently in his capacity as a juror.
“If I could go back in time, and if I knew Frederick faced 40 years, I would vote to acquit him,” St. Louis said in a new jury-education initiative launched this week by the Cato Institute, a libertarian think tank. “I could have asked what sentence would be imposed. I could have drawn my own conclusions if no one would answer. And I could have voted my conscience.”
The nonpartisan project, Your Verdict Counts, aims to inform jurors about three points that the Cato Institute asserts they should know but are rarely, if ever, told: that jurors possess the authority to decide whether a law is unjust or applied unjustly, the right to inquire about the consequences of a conviction, and the right to cast a conscientious verdict based on those factors without fear of repercussions.
“Jurors are not just called to go in and check boxes and determine if somebody technically violated the law,” says Matthew Cavedon, director of the Cato Institute’s Project on Criminal Justice. “Their mission is to apply their conscience and sense of justice to decide whether someone deserves to have their life, their liberty, or their property denied. That is a fundamentally different task from the one that judges and lawyers often insist is all a jury is supposed to do.”
In addition to the website, the campaign will feature a series of in-person events in Richmond, Virginia. Cavedon noted that Richmond was selected because Virginia permits convicted defendants to petition for sentencing before a jury rather than a judge—a feature that is rare, if not unique, in its criminal-justice framework. Richmond is also known for a notably vigorous defense bar.
The act of acquitting or declining to indict a criminal defendant on moral grounds, regardless of technical guilt, is commonly referred to as “jury nullification,” and it remains a contentious topic within the legal profession.
As George Mason University law professor Ilya Somin wrote at The Volokh Conspiracy in 2018, nullification undermines the rule of law in a system where criminal codes are applied uniformly, but in practice it has become, unfortunately, “a counterweight to the enormous discretionary power already wielded by government officials.”
The Cato campaign intentionally avoids the term nullification, which Cavedon says lends a rebellious edge to what he views as a legitimate and traditional check on government overreach.
According to the institute, the need for juries to exercise that power is more pressing than ever because juries rarely get the chance to do so. A Pew Research Center report found that in 2018 only 2 percent of federal criminal cases proceeded to trial. The presence of lengthy mandatory minimum sentences gives prosecutors substantial leverage over defendants, making a trial after rejecting a plea deal an irrationally risky choice. Defendants who decline plea agreements and are convicted—like Turner—tend to receive harsher sentences, a phenomenon criminal-justice advocates call the “trial penalty.” The result is that the constitutional right to trial has largely faded from practice.
The Cato Institute argues that empowered juries would serve as a safeguard in a justice system that has largely stripped judges of the ability to tailor sentencing to individual defendants.
However, although jurors cannot be punished for voting their conscience, discussing such matters inside courthouses is virtually taboo. Attorneys are typically barred from discussing nullification with juries, and doing so can lead to a mistrial.
In 2019, a divided 2nd Circuit Court of Appeals panel chastised a federal judge who complained about aggressive prosecution, saying the case before him “call[ed] for jury nullification.”
Over the years, activists have even been arrested and convicted on jury-tampering charges for distributing flyers about nullification outside courthouses, prompting First Amendment lawsuits. In 2022, the 2nd Circuit ruled that a New York man’s rights to free speech were violated when he was arrested outside a Bronx courthouse for engaging in such activity.
Despite the courts’ lingering discomfort with the notion, the Cato Institute contends that there exists a long and storied tradition in the United States of juries using their power to resist unjust laws and charges, from the acquittal of Peter Zenger in a renowned 1735 libel case to northern juries’ refusal to convict defendants who aided fleeing slaves under the Fugitive Slave Act.
Similarly, Damon Root of Reason wrote in 2018 about the originalist rationale for jury nullification, noting that there is “good evidence that many 18th and 19th century Americans understood juries to possess the lawful power to reject guilty verdicts when the jurors believed the underlying law was unconstitutional.”
The concerns that motivated those early Americans, Cavedon says, are not distant from those we see today. “There’s such a feeling in America today that government is distant, and that especially lawyers and judges are just part of the elite class, making decisions without the good sense of the people. That’s been a concern all throughout American history, and the jury is supposed to be the antidote,” Cavedon asserts. “The jury is literally government by the people, and we have lost something in shifting the most important function of the government, criminal punishment, to behind closed doors, to negotiations between lawyers, to a quick sign-off by a judge. That is not the freedom and the democratic order that we were promised.”
