Three and a half centuries of saying no.

William Penn, later the founder of Pennsylvania, and William Mead were tried at the Old Bailey for preaching to a Quaker gathering in Gracechurch Street, an unlawful assembly under the Conventicle Act. The evidence was not in dispute; Penn had preached. The jury returned a verdict of guilty of speaking in Gracechurch Street and nothing more, which was no crime. The court sent them back. They returned the same verdict. The Recorder had them locked up for two nights without food, drink, fire, or tobacco. On the third day they returned not guilty for both men.

The court fined every juror forty marks and jailed them until they paid. Edward Bushel refused and sued for a writ of habeas corpus. Chief Justice Vaughan of the Court of Common Pleas freed him and, in an opinion that still governs, held that a judge may not punish a jury for its verdict, because a jury that could be punished for disagreeing with the judge would be no jury at all. Every fact on these pages descends from that ruling.

Twenty-two years later, in Salem, a jury acquitted Rebecca Nurse of witchcraft, was pressed by the court to reconsider, and returned guilty. She was hanged. Bushel's protection reached Massachusetts slowly. You can retry her case on this site.

John Peter Zenger printed the New-York Weekly Journal, which attacked the royal governor, William Cosby. He was jailed for seditious libel. Under the law of the day the only question for the jury was whether Zenger had printed the words; whether they were true was irrelevant and, if anything, made the libel worse. Andrew Hamilton of Philadelphia, the most celebrated lawyer in the colonies, admitted the printing and asked the jury to decide the rest for itself: that the words were true, and that no free people should be punished for publishing the truth about their rulers.

The jury acquitted after a short deliberation. The verdict changed nothing in the written law of libel, which remained as it was for decades. It changed what prosecutors could expect from a colonial jury, and it became the founding story of American press freedom. It is also the clearest early example of the mechanism: a jury that cannot change the law can still refuse to apply it.

The men who built the American system were explicit about the jury's role. John Adams wrote in his diary in 1771 that it was “not only his right, but his duty” for a juror “to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Thomas Jefferson, writing to Thomas Paine in 1789, called trial by jury “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

In Georgia v. Brailsford (1794), one of the few jury trials ever held before the Supreme Court itself, Chief Justice John Jay instructed the jurors that while the court's opinion on the law deserved respect, “you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.” A decade later Alexander Hamilton, defending the printer Harry Croswell in New York, argued the same principle and won a change in the state's libel law.

Whether these statements described a right or merely the practice of the age is the question later courts fought over. What is not in doubt is that the founders expected juries to stand between the citizen and the state, and said so.

The Fugitive Slave Act of 1850 made it a federal crime to help an escaped slave and required Northern citizens to assist in captures. In February 1851 a crowd walked into a Boston courtroom and carried Shadrach Minkins out to freedom. Federal prosecutors charged the rescuers. Boston juries would not convict, and the prosecutions failed. In Syracuse the same year, a crowd freed William Henry, known as Jerry, from federal custody; of the many indicted, the government secured a single conviction, and the defendant died before his appeal.

Southern politicians understood exactly what had happened and said so in Congress: the law could not be enforced where juries would not enforce it. The episode is the strongest American example of nullification used against a law that the country later repudiated entirely, and it is the one most often cited by the power's defenders. It should be read alongside the cases on the other edge, a century later, when Southern juries used the same power to protect murderers.

Two sailors were tried for murder on the high seas. Their lawyers asked the judge to tell the jury it could return a lesser verdict than the law, on those facts, allowed. The judge refused, and the Supreme Court upheld him, five to four. Juries in federal court, the majority held, must take the law from the judge, and the judge has no duty to tell them they may do otherwise. Justice Gray's long dissent traced the older practice back through Jay and the colonial courts.

Sparf did not and could not abolish the power. An acquittal remained final and a juror remained unpunishable. What it ended was the instruction. From 1895 forward, American juries would exercise the power without being told they had it, and most would be told the opposite. Nearly every later fight on this subject is a fight about Sparf.

The Volstead Act gave the country thirteen years of a law that millions of ordinary citizens broke and that many jurors declined to punish. In some cities acquittals in liquor cases became common enough that prosecutors stopped bringing marginal ones, and defendants began demanding jury trials for precisely that reason. Kalven and Zeisel, whose 1966 study The American Jury remains the standard work on how juries actually decide, treated Prohibition as the modern proof that juries will quietly refuse to apply a law the community has rejected.

Historians count juror resistance among the pressures that produced repeal in 1933. It is the last time the power was used at national scale, and it worked the way its defenders say it should: not by argument in the courtroom, but by the accumulated weight of verdicts.

Antiwar defendants who had raided draft boards asked the courts to let their juries hear about nullification. In United States v. Moylan (1969) the Fourth Circuit refused, while acknowledging that the power was real. In United States v. Dougherty (1972) the D.C. Circuit did the same at greater length. Judge Leventhal's majority opinion conceded that “the pages of history shine on instances of the jury's exercise of its prerogative,” and argued that telling jurors about it would convert an occasional act of conscience into a routine invitation to anarchy. Judge Bazelon, dissenting in part, replied that a system which depends on jurors discovering their power by accident is not being honest with the people it asks to serve.

A year later, in Camden, New Jersey, twenty-eight people who had broken into a draft board stood trial for it. The judge allowed the jury to hear how far an FBI informant had gone to make the raid possible, and the historian Howard Zinn testified about civil disobedience. The jury acquitted every defendant on every count. The Camden 28 verdict is routinely described as nullification, and it followed a trial in which, unusually, the jury had been allowed to see the whole picture.

In 1996 Laura Kriho, a juror in a Colorado drug possession case, was the lone vote for acquittal. After the mistrial the judge charged her with contempt, in part for failing to volunteer during jury selection that she knew about nullification and in part for what she had said in the jury room. She was convicted and fined. The Colorado Court of Appeals overturned the conviction in 1999, and the case was dropped. Kriho is the modern warning about jury selection: the protection covers the verdict, and courts will look hard at anything a juror said under oath to get there.

In 2003 a San Francisco federal jury convicted Ed Rosenthal of growing marijuana. The jurors had not been allowed to hear that he was growing it for the city of Oakland's medical program under a city permit. When they learned it from reporters after the verdict, several held a press conference to apologize and said they would have acquitted. It is the clearest recent picture of what the Sparf settlement looks like from the jury box.

In 2012 New Hampshire enacted RSA 519:23-a, which allowed the defense in criminal trials to inform the jury of its right to judge the application of the law. That September, Doug Darrell, a Rastafarian charged with growing fifteen marijuana plants for his own religious and medicinal use, was acquitted in Belknap County after the judge read the jury an instruction on its power to acquit when a conviction would be unjust. The jury deliberated six hours and asked to hear the instruction twice more.

Two years later the New Hampshire Supreme Court, in State v. Paul (2014), read the statute narrowly and upheld a conviction in which the trial judge had declined to give the defendant's requested nullification instruction. Later bills to put the instruction itself into the statute have not become law. New Hampshire remains the only state to have attempted the instruction by statute in modern times, and its experience shows how hard the courts will push back.

Julian Heicklen, a retired chemistry professor, stood outside the federal courthouse in Manhattan handing out Fully Informed Jury Association leaflets. He was indicted for jury tampering. In 2012 Judge Kimba Wood dismissed the indictment: the statute reaches attempts to influence a juror in a particular case, not general advocacy to the public about what juries may do.

In Denver in 2015, Mark Iannicelli and Eric Brandt handed nullification brochures to people who said they were reporting for jury duty. They were charged with seven counts of jury tampering each. The trial court dismissed the charges, and in 2019 the Colorado Supreme Court agreed (People v. Iannicelli): the statute requires an attempt to influence a juror in an identifiable case.

In Michigan the same year, Keith Wood handed out the same pamphlets on the sidewalk outside the Mecosta County courthouse and was convicted of jury tampering. In 2020 the Michigan Supreme Court vacated the conviction (People v. Wood), holding that people arriving for the first day of jury service who have not yet been seated in a case are not “jurors” under the statute. None of the three courts reached the First Amendment, and all three said the same thing in different words: telling the public about the power is not a crime; trying to steer a particular jury in a particular case is.

Until 2020, Louisiana and Oregon allowed felony convictions on ten-to-two verdicts, rules with roots in the Jim Crow era that were designed in part to dilute the votes of Black jurors. In Ramos v. Louisiana the Supreme Court held that the Sixth Amendment requires a unanimous jury for a felony conviction in state court, as it always had in federal court. The practical effect for this subject is simple: in every American felony trial, one juror who will not convict prevents a conviction. The state may retry the case, but it cannot have the verdict.