Should juries vote "not guilty" on low-level marijuana charges to send a message about our country's insane marijuana arrest policy?
Jury nullification is a constitutional doctrine that allows juries to acquit defendants who are technically guilty but who don't deserve punishment. As Paul Butler wrote recently in The New York Times, juries have the right and power to use jury nullification to protest unjust laws.
Butler points out that nullification was credited with ending our country's disastrous alcohol 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 with today's marijuana arrests.
There is growing recognition that today's drug laws are ineffective and unfair. For the first time, a recent Gallup Poll found that 50 percent of Americans want to legalize the use of marijuana. Despite half of our country wanting to end marijuana prohibition, the war on marijuana users is as vicious as ever. There were more than 750,000 arrests last year for possession. In New York City, marijuana possession was the No. 1 reason people were arrested last year, making up 15 percent of all arrests.
People hoping for change should not expect it to come from our "leaders" in Washington. While most of our elected officials know in their hearts that our drug war is an utter failure that fills our prisons while doing nothing to help people struggling with addiction, there is deafening silence when it comes to offering alternatives to the war on drugs. Democrats and Republicans are both cowardly and opportunistic and don't want to give up their "tough on crime" credentials.
Here is where jury nullification comes in. If our leaders aren't going to stop the madness, maybe it is up to our peers to say enough is enough.
In Montana last year, a group of five prospective jurors said they had a problem with someone receiving a felony conviction for a small amount of marijuana. The prosecutors, freaked out about the "Mutiny in Montana," feared they would not be able convince 12 jurors in the state to convict. The judge was reported in the Times 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 for drug offenses is from the creators of the HBO hit series "The Wire." Former Baltimore Sun staffer David Simon and the other creators of "The Wire" wrote a passionate piece in Time magazine in which they called on Americans to join them in the use of jury nullification as a strategy to slow the drug war machine. From the article:
"'A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,' wrote Thomas Paine when he called for civil disobedience against monarchy - the flawed national policy of his day. In a similar spirit, 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 President 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 and stop sending our loved ones to cages because they have a drug problem. We have more power than we realize. If the people lead, the leaders will follow.
Tony Newman, director of media relations at the Drug Policy Alliance, wrote this for the Baltimore Sun. Email him at firstname.lastname@example.org.