Should juries vote “not guilty” on low-level marijuana charges to send a message about our country’s insane drug policies?
Jury nullification is a constitutional doctrine under which jurors can acquit defendants who are technically guilty but don’t deserve punishment.
As law professor Paul Butler wrote recently in the New York Times, juries have the right and power to use it to protest unjust laws.
Butler points out that nullification was credited with helping to end Prohibition, as more and more jurors refused to send their neighbors to jail for a law they didn’t believe in.
He says we need to do the same in the case of today’s marijuana arrests.
There is growing recognition that our drug laws are ineffective and unfair. For the first time, a recent Gallup Poll found that 50 percent of Americans want to legalize marijuana use.
Despite that, the war on marijuana users is as vicious as ever. There were more than 750,000 arrests for possession last year.
In New York City, marijuana possession was the No.1 reason people were arrested last year, accounting for 15 percent of all arrests.
People hoping for change should not expect it to come from Washington.
While most of our elected officials know in their hearts that the drug war is an utter failure, filling our prisons while doing nothing to help people struggling with addiction, there is a deafening silence when it comes to offering alternatives.
Democrats and Republicans alike are too cowardly and opportunistic to give up their “tough on crime” credentials.
This is where nullification comes in. If our leaders aren’t going to stop the madness, maybe it is up to our peers.
In a Montana case last year, several prospective jurors said they would not vote to convict someone of a felony for possessing a small amount of marijuana.
Prosecutors feared they would not be able find 12 jurors in the state who would.
The judge in the case was quoted as saying, “I’ve never seen this large a number of people express this large a number of reservations,” adding “it does raise a question about the next case.”
Perhaps the highest-profile call for jury nullification in drug cases came from the creators of the hit HBO series The Wire.
In a passionate Time magazine piece, they called on Americans to join them in using jury nullification as a strategy to slow down the drug-war machine. From the article:
“We offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds.
It doesn’t resolve the myriad complexities that a retreat from war to sanity will require.
All it does is open a range of intricate, paradoxical issues. But this is what we can do – and what we will do.
“If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented.
Save for a prosecution in which acts of violence or intended violence are alleged, we will, to borrow Justice Harry Blackmun’s manifesto against the death penalty, no longer tinker with the machinery of the drug war.
No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.”
Forty years after Richard Nixon launched the war on drugs, the casualties continue to mount, with no end in sight.
We need to step up our efforts to end this war at home. We have more power than we realize. If the people lead, the leaders will follow.