Tuesday, February 24, 2009

Another Way To End The War On Drugs

I read a story recently about a jury in rural Illinois that found one of their peers not guilty of possession of marijuana with intent to deliver, a crime that would have resulted in a mandatory minimum sentence of six years. Now that alone may not sound like much, but this guy was caught with 25 pounds of marijuana and a number of live plants in his home. It was an open and shut case, and conviction appeared certain. Nevertheless, the jury acquitted the defendant.

How can that be? If you’ve ever served on a jury, you know that the judge instructs you to base your decision on the law and the facts of the case. No other factors, including the possible sentence, should influence your decision. But what the judge never tells you is that as a member of a jury you are a part of your government’s system of checks and balances. You are the last line of defense against unjust laws and cruel or unusual punishment. If you feel a law or its application is unjust or the penalty too severe, even if the evidence overwhelmingly indicates guilt, you have the right to find a defendant not guilty. In other words you, as a member of a jury, have the power to nullify a law. This power is called jury nullification, and is a right that has been exercised by U.S. juries throughout our nation’s history. It is also a right that judges and prosecutors do their best to keep jurors ignorant of. In fact, it is not unusual for a judge to declare a mistrial if the defense mentions anything even remotely related to jury nullification.

Officially, jury nullification is defined as “the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against them.” What this means in practice is that not only is the defendant on trial, but the law is as well. Of course a jury’s decision applies only to that one particular case. But if a pattern develops over time, it can essentially prevent a law from being enforced. And thus it provides a way for the people to express opposition to an unpopular law.

Jury nullification is nothing new. In fact John Jay, first Chief Justice of the U.S. is quoted as saying, “The jury has the right to judge both the law as well as the fact in controversy.” There are several notable examples of the use of jury nullification in our history. Way back in the colonial days, juries refused to convict for certain violations of English law. And in the pre-Civil War days, juries sometimes refused to convict for violations of the Fugitive Slave Act. And in the last century it is estimated that 60 percent of the time juries refused to convict for violations of the 18th Amendment (alcohol prohibition). Some consider this refusal to convict as contributing to the adoption of the 21st Amendment (repeal of prohibition).

The tricky thing about jury nullification is that even though the courts have upheld this right since 1840, recent decisions have also upheld the court’s right to refuse to allow the defense to instruct a jury about it. What that means is that as a citizen it is your responsibility to know your rights as a member of a jury. Regardless of what a judge might or might not tell you, it is up to you to know that as a member of a jury you have the right to nullify a law. So now you know. Wake the kids and phone the neighbors. Tell everyone you know. If someone you know is going to serve on a jury, especially for a case that involves simple possession of marijuana, please mention this power to them. It is starting to look like this is the only way the will of the majority is going to be heard when it comes to the war on drugs.

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