Jury Independence Illustrated
How to be a Monkey Wrench in the Machinery of the Drug War
So you’ve received a notice to report to jury duty.
You’re trying to get out of it?
At the risk of sounding like a herb,
being on a jury can be one of the greatest experiences of citizenship.
As a voter you’re one of millions.
As a juror you are one of twelve, with power over someone’s life.
But there is one thing a jury won’t be told,
by neither “the people,” the defense, nor the judge.
In 1734, John Zenger printed an article condemning the governor of New York. Colonial law prohibited publications that did not meet government approval, and Zenger was arrested for seditious libel.
Zenger did not deny publishing the offending work. During his trial, the judge instructed the jury that this admission was evidence enough to convict.
But the jury disregarded the judge’s instructions and found Zenger not guilty, based on what they deemed to be an unjust law.
This landmark case for freedom of the press is one of the earliest and best-known examples of jury nullification:
When the jury returns with a verdict of “not guilty” despite evidence establishing that the defendant is guilty as charged.
A jury is designed to protect society from lawbreakers, but it is also a means to protect society from bad law.
A jury can nullify a law that it believes unjust or wrongly applied to a defendant.
Jury independence is your power to judge the law as well as the evidence, and to vote on a verdict according to conscience.
Judges are not required to inform you of jury nullification power. In many jurisdictions it is forbidden for attorneys to advise a jury of the possibility, and jurors must learn of it through extra-legal sources.
Fear of jury anarchy guides such restrictions, and there are examples of nullification gone awry (e.g., racist juries refusing to convict white supremacists for killing black people).
So when should this special power be used?
In all criminal drug cases.
In 2008, the writers of HBO’s The Wire wrote an essay in Time Magazine stating,
“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.”
I live in New York, so I just want to pause a moment for Michael Bloomberg, who lead the city toward a historical record of marijuana arrests.
I approached Bloomberg once at a Gracie Mansion BBQ, where I asked him to reconcile his administration of marijuana arrests with his own admission of personal use and enjoyment. He hemmed and hawed. I asked why he wouldn’t arrest himself for the past use, and he said “That’s not how the law works.” I said, “So, really you’re just saying ‘I got away with it.’” At that point he said, “You and I have nothing in common,” and walked away.
How’s de Blasio doing? In the first four months of his administration, the NYPD arrested an average of 80 people a day for possessing small amounts of marijuana. This was slightly higher than average daily arrests under Bloomberg in 2013. Brooklyn District Attorney Ken Thompson announced his office wouldn’t prosecute first-time offenders charged with possession of small amounts of marijuana. NYPD commissioner Bill Bratton responded to say that “will not result in any changes [of police operations].” A de Blasio spokesperson said the mayor agreed with both men. The most recent data indicates that extreme racial disparities remain in the enforcement of marijuana laws. In New York City, African-Americans and Latinos make up about 45% of the population, and yet they represent roughly 95% of arrrests and summonses issued for marijuana violations and offenses in 2020.
So… let’s get back to nullification.
If you object to how drug use and addiction are treated as crimes, rather than as medical or liberty issues, then jury duty is one of the most powerful legal weapons you have against the Drug War.
The defendant’s apartment was raided, police discovered marijuana plants?
The prosecution’s case is airtight?
The defendant even confessed?
The defendant sold an envelope of cocaine to an undercover officer?
On video?! It’s pretty much a wrap?
No matter what the evidence, it is within your rights to declare the defendants of non-violent drug charges