In Parts One, Two, and Three, I explained the history and application of how the “jury pardon power”, retained by We the People, can derail the federal criminal justice system.
The power still exists today.
The impetus for enshrining the right to a jury trial in Magna Carta was abuse of the criminal law by King John. To finance his wars in France, he repeatedly taxed the Barons. If one of them balked at paying, he charged him with treason — a felony. When convicted (the King himself was the judge and one man jury) all the Baron’s property “escheated” to the King.
William Penn’s charge of “illegal preaching” — also a felony — was another example of a King using a criminal charge for political reasons. So abuse of the law by the government against its political enemies underlies both the right to a jury trial, and the jury pardon. But the jury pardon power is not limited to politically motivated prosecutions. It applies in all criminal cases.
It’s important to understand that the pardon power is not a finding of “innocence”. It’s a determination the accused is “not guilty” — which is legally distinct from “innocence”. The later means the accused did not commit the crime charged. The former may mean that as well. Or it may mean only that the government did not prove guilt “beyond and to the exclusion of every reasonable doubt”. A “not guilty” verdict is not necessarily synonymous with “innocent”.
A jury can pardon an accused without having to decide innocence, thus the pardon power does not create a moral dilemma for jurors. It’s merely a way for the citizens to give a middle finger to the federal government.
Particularly since the founders never intended that (other than treason) the federal government would prosecute crimes. The United States Supreme Court has repeatedly said so:
“It cannot be denied that the power of the state to protect the lives, health and property of its citizens and to preserve good order and the public morals, the power to govern men and things within the limits of its dominion, is a power originally and always belonging to the state, not surrendered to the general [federal] Government…” (1895)
“The regulation of the conduct of its own citizens belongs to the state, not to the United States.” (1935)
“The States possess primary authority for defining and enforcing the criminal law.” (1982)
“Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the ‘police power.'” (2012)
“The independent power of the States also serves as a check on the power of the Federal Government: By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” (2012)
Jury pardons serve as a penultimate “check on the power of the Federal Government”.
The ‘jury pardon’ is a totally legal, non-violent means of protest against the federal government, in the tradition of Mahatma Gandhi (a lawyer trained in English law.) Gandhi asked the British Viceroy in India how the Brits thought they could rule 100 million Indians if the Indians refused to be ruled. The same can be asked about the 75 million who voted for Trump.
As I explained in Part Three, it only takes one juror to thwart the prosecution. If each of those 75 million, when serving on a federal jury in a criminal case, simply exercise their “jury pardon power” by refusing to convict anyone charged with a federal crime, then the federal government will in effect have lost the ability to govern.
We have the power, and the right to deprive the federal government of its ability to prosecute any citizen for any crime.
“Whenever any form of government becomes destructive… it is the right of the People to alter or abolish it…” (The Declaration of Independence)
The federal government can not legally prevent 75 million of us from using our lawful power of the jury pardon to “alter” it.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.