March 7, 2008

Jury nullification is American Dissent

I'm not big fan of America's drug war. But in a recent conversation I made some approving comments about busts of drug dealers in a Massachusetts high school. All drug busts involve a deceptive tactic, since no knowingly selling to a cop is the same as turning yourself in. But this bust involved social aspects that some found questionable. I was a little over-zealous in my defense of the busts.

While I don't think that there ought to be people selling drugs in school, the experience taught me something about myself, and about how easy and quickly it is to get overzealous with one's emotions when we feel we need to protect society from a perceived danger.

I feel that America's drug war is that reaction writ large and that it has become institutionalized and ingrained to the point where it is a pathological aspect of our society.

A friend responded to the drug bust story saying that she would hang the jury, were she seated in that trial. I read a similar statement in an article in Time Magazine tonight.

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.

Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest.

Is our government capable of fixing the drug war by stopping it? Politicians are addicted to the idea of outdoing each other in showing how ruthless they will be toward crime, so they have no motivation or credibility on taking an honest look at what our war on drugs has done to society. If drugs have wounded our society, then the drug war has poured gasoline into that wound and lit it ablaze. I don't understand how otherwise compassionate people can look at the situation and say it's helping.

The quotation above is from an article by the writers of the HBO television program The Wire. It's one of the best shows I've seen in the last three years. I urge you to rent it on DVD. It's not a documentary, just good TV. The dissent suggested is their response to viewers who ask them how to fix the drug war that destroys lives and is portrayed in their TV show. The show offers little hope for a solution, because there is no political will to actually change anything. Change must come from elsewhere.

Jury nullification is a power of jurors, one that judges omit when the juries are being instructed about their rights and responsibilities. A juror may refuse to deliver a verdict based on the law as instructed by the judge. I have often heard jurors say "the judge told us the law, so we really only had to decide whether he had broken the law." That's not true. There is the possibility that you disagree with the law, or think it is being applied unjustly. If that is the case, it behooves you to nullify. Don't expect the court to tell you this.

If enough juries nullify a law, it becomes a dead letter.

I can't tell you which laws are just. But I suggest you do consider that question when you are faced with a jury situation. Are you being asked to bring a verdict for a just law? If not, nullification as an option you might not have realized you had.

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Posted by James at March 7, 2008 12:52 AM
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If you are asked to sit on a jury they are going to ask if you can make a decision based on the law as it exists. For example anyone being asked to sit on a death penalty case will be asked up fronty in the jury screening process if they could give someone the death penalty. If they can't or won't then they will not be chosen as jurors. Unless they lie with the intent of hanging the jury. I'm fairly certain that is not legal although I don't really know. What would it be contempt of court, purjury? I'm fairly certain when you are sworn in you are asked to judge according to the law not your version of it so you will be lieing under oath. It certainly wouldn't be ethical. I'm sure in most cases it wouldn't be punished but if enough people started doing it would it be?

I have big problems with trial by jury (more in civil cases than criminal ones) to begin with, don't start making me wish even more that we could do away with juries.

Posted by: B.O.B. (bob) at March 7, 2008 8:40 AM

It is the state's responsibility to screen me out if it doesn't want my opinion heard. I am not concerned about that.

It is my responsibility, as a citizen, to be true to my values and to assist the state when I think it has lapsed in its responsibility to its citizens.

If they ask a blanket question such as "will you uphold the law" before instructing you precisely on what the law is, then they deserve to have more hung juries. How can I agree to uphold an unknown law? Just laws can also be applied unjustly. You can agree to uphold the law, but feel that the spirit of the law has been violated. There is nothing unethical about that.

In the long run, ethics are a specific concern of law officials. Morals should be a concern of the individual.

Posted by: James at March 7, 2008 9:00 AM

"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."

This is a ridiculous argument.

Tax cheats are nonviolent offenders, so by this argument, they should also not take up sapce in jail that could be used to house dangerous criminals.

Posted by: Patti M. at March 7, 2008 9:08 AM

You will absolutely know what kind of case you are being screened for so if you go in knowing you won't under any circumstances convict than you are going to have to lie to get on that jury. I agree you can be on a jury and see during ta trial that the law is being applied unfairly and if it is you must vote to aquit.

On the jury I was on for a murder trial they explained the laws on 1st and 2nd degree murder as well as on the so called "insanity" defense. Everyone (around 150 of us) were asked if we could make judgements on the laws as explained. For me to have said no would have been a lie (the immoral thing to do right?). If I had simply said no I could have spared myself the most stressfull 2 weeks of my life (by far). If it happens again I'll do the same thing. I won't lie to get out of a jury and I wouldn't lie to get onto a jury. If we had the death penalty in this state i would say no i couldn't sentence someone to death.

The judicial system is there to enforce the laws as written not to decide if they are good laws or just or moral. that's the job of the legislative branch. If you are against certain laws call your congressman, stage rallies, run for office. the laws are what they are because the majority agree with them. If they didn't then there would be a reason for politicians to change them (as has been done for many; the death penalty in most states, prohibition, segregation, etc.). None of those things changed becasue a few people in juries decided that they wouldn't uphold the law. What this advocates is going against democratic principles. You or I might not agree to a law but that doesn't give us the right to break it. Or if we do not face the consequences of our actions. If I get a ticket for speeding i will shut up and pay it. I know speeding is against the law and i choose to do it anyway sometimes. I know what the consequences are.

Posted by: B.O.B. (bob) at March 7, 2008 9:44 AM

James: Yes, it's the states responsibility to screen you out, but Bob addresses that, and he's right. It's likely that they'll ask if you could convict on a drug offense. If you say "no", they'll toss you. If you say "yes", get on the jury, and ignore the evidence and vote to acquit, you can, indeed, be prosecuted for perjury and sent to nonviolent-offenders' prison yourself.

Part of being true to your values involves deciding whether you want to be up front about them, or lie during jury selection in order to make a point. Just don't forget that the latter has consequences.

Patti: Yes, exactly: tax offenders should indeed NOT take up space in jail that could be used to house dangerous criminals. The argument isn't ridiculous at all.

We should be making far more use than we are of alternatives to prison for non-violent offenders, especially first-time ones. If every non-violent first-time offender had to work instead of sit in prison, the prisons would be less crowded, the system would cost less, the offenders' families would benefit, and the criminals would still be punished.

This is especially good in tax cases, and other cases where the offender is likely to be affluent. There's so much we can do with that, making the offenders work in homeless shelters, giving money to the poor, and that sort of thing. And no one is well served by having them sit in prison instead.

Posted by: Barry Leiba at March 7, 2008 9:45 AM

[Hm. Your server's clock seems to be about five minutes fast. I posted my comment at 9:40, and it's marked 9:45.]

Posted by: Barry Leiba at March 7, 2008 9:47 AM

You mean knitting ponchos for the poor isn't a valuable use of time? Aw, c'mon!

Posted by: Patti M. at March 7, 2008 9:51 AM

I didn't advocate lying, so I guess we agree there. Perhaps we disagree about whether the state will always be thorough in its screening.

Repeating myself in brief: it is not my responsibility to make sure the state has properly screened me. On the other hand, I am not trying to dishonestly insinuate myself into juries.

Perhaps my past can be summarized thusly. Do not assume you must go with the law as it is described to you by a judge, but be honest in response to the screening questions.

The issue of lying is also an interesting one. If we are to argue about whether someone must never lie to defend a greater value, I have to disagree. "Always telling the truth" is a good general rule but also strikes me as a simplistic approach to morals.

Forcing the individual to always tell the truth, even in extreme cases, is a way for society to control that individual, not a way for them to exercise their morality. I can see that, even with the high value I place on honesty.

Posted by: James at March 7, 2008 11:04 AM

That'd be my POST not my PAST.

Posted by: James at March 7, 2008 11:05 AM

Also, I wasn't aware the our prisons were filled with tax cheats. There is no war on tax cheats, as far as I am aware. The context is not irrelevant to the argument.

Posted by: James at March 7, 2008 11:10 AM

I don't think never lying is realistic or important. i think there are times lying is actually a good way to go [presidential campaigns maybe;)]. Perjury is not the same thing as lying. What is advocated by the statment in your original post would to me imply you are going into a jury knowing what you are going to vote without listening to any evidence or laws. You will be asked to adjudicate based on the law when you are sworn in. If you do anything else I would say you are minimally in contempt of court and possible guilty of tampering with a jury. If you are willing to risk that then go for it.

If the person that wrote that was ever on a jury in a drug trial and voted to aquit and the judge or prosecutors found out about that statement I'd say that person should be prepared to be made an example of. What you are saying is "your legal system stinks, my ideas are better so I'm going to follow what I believe". That's fine just be prepared for the consequences.

Posted by: B.O.B. (bob) at March 7, 2008 12:37 PM

Hi commenters! I'm the jury hanger.

I never said I would lie to get on a jury. But if we can uphold the 2nd Amendment based on perceived intent, I can certainly be seated on a jury and hang it based on perceived intent. I do not think that the case in question was just. I think that placing an undercover agent in a school and giving her a HUGE backstory and making her a pretty girl when around minors is entrapment. This wasn't a question of an undercover agent walking in and buying drugs from known dealers. This was preying on teens whose emotional reactions will cloud judgment. If we can't trust them to vote or to drink, why do we expect them to be able to react in an adult manner when pressed between "pretty girl with sad story paying attention to me" and "ZOMG, it's against the law?"

I refuse to believe that the current drug laws were enacted to prosecute 15-year-old kids who scored a bag of weed for said girl, just as I refuse to believe that our founding fathers intended the right to bear arms as giving every git in America the right to carry concealed in public. Yes, we are putting poor people with few options in jails based on selling weed while we have rich people who go free on far more heinous crimes simply based on the amount of money spent on getting through loopholes.

The writers of The Wire are far more eloquent than I.

Posted by: pippa at March 9, 2008 12:34 PM

I've reread my post again and am still wondering where the suggestion of lying came from.

Posted by: James at March 9, 2008 7:54 PM
It was well known to John Adams, who said, "It is not only (the juror's) right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." He even went further and called it "absurdity" for a court to expect a juror to be required to accept the judge's view of the law. The principle was well known to those two political opposites, Jefferson and Hamilton, and yet they both agreed on this point.

Need more legal celebrities? Justice Oliver Wendell Holmes wrote in 1920: "The judge cannot direct a verdict, it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts." In more recent years, the Fourth Circuit Court of Appeals wrote: "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence."

Posted by: James at March 11, 2008 7:01 PM

Pippa- I don't disagree with you in that particular case. i disagree that you can (OK technically you can) go into any and all drug trials saying you will not say anyone is guilty.

James- I think I raised the lying because I don't see how you could get onto a jury in a drug case without lying if you held the opinion stated.

Even if you did I don't believe it could ever be enough of a movement to bring about anty change. First of all prosecutors would start being more carefull with screening out people with this opinion and prosecuting those who don't uphold the law. Second most people don't have what it takes to hang a jury. On the murder jury I was on the one holdout wanted to go for the so called "not guilty for reason of insanity". She was pounded with the evidence for hours. We didn't think she'd change her mind and asked the judge how long this had to go on for. The reply was it hadn't been long enough and the bailif implied it would have to go on for days. This woman was faced with 11 very angry people pounding the evidence at her for days. She finally broke down crying during lunch the next day and agreed with the verdict (we then spent an hour making sure she really was OK with it). You're going to have to have pretty damn stong convictions to put up with that for an extended period and know that the rest of the jury is going to tell the court the reason they can't come to a verdict. It's just not realistic. If you don't agree with a law (and I don't agree with a lot of the sentencing for drug offenders) then you should work to change that law.

Posted by: B.O.B. (bob) at March 12, 2008 8:29 AM

Looks like we have the choice of a naive view of what one juror can do vs. the naive view that you can actually work with today's politicians to change the law.


Law has been changed through jury nullification. But I agree with you completely when you note that it hinges on the strength of one's convictions, and that such traits are in short supply today. Many of us are very comfortable in our lives and it would probably take personal or familial problems to get us to make such a stand.

I can hardly imagine being jailed in an attempt to change the law or gain attention, until I imagine my children, or other family and friends depending on such an action. It then becomes a little easier to envision.

Posted by: James at March 12, 2008 9:27 AM

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