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Jurors Need to Know That They Can Say No

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C

Chuck (Old)

Banned
IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.

The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.

The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)

There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.

How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.

Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made 50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.

In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.

Paul Butler, a former federal prosecutor, is a professor of law at George Washington University and the author of “Let’s Get Free: A Hip-Hop Theory of Justice.”
Click to expand...

Source (NYT)

Here is an illustrated pamphlet about jury nullification by the author of Go the Fuck to Sleep.
 
D

demon

I don't mean to alarm you but you have dogs on your face
Thanks for posting. Didn't really know anything about jury nullification before this. Sounds like an effective tool for fighting archaic laws if used/known about by enough people.
 
E

Epic Drop

Member
I didn't know that jurors had this power, and I've been called for jury duty twice now. This, and the provided link, were an eye-opening read. Thanks OP!
 
K

Kai Dracon

Writing a dinosaur space opera symphony
Seanspeed said:
I dont like the idea of a jury in the first place.

Having average Joe's decide my fate is a terrifying idea to me.
Click to expand...

So you'd rather have The Great Machine that sees you as a data point (unless you're rich, powerful, and one of the direct contributors to the machine's upkeep)?

Here's the thing; there is not a perfect system or method of dealing with human behavior, so a jury is flawed too. As pointed out, juries drawn from pools of backwards, racists persons can cripple the system's ability to perform authentic justice.

On the other hand, with a jury, you at least have a chance of appealing to real people. Without juries, you are at the mercy of society's impersonal machine, and in the states, a machine that has been corrupted nearly beyond redemption in many areas.
 
N

Neuromancer

Member
I'm pretty sure most Americans support at least some anti-drug laws. Most of us are not OK with people running around selling heroin/cocaine/meth.
 
S

Sanjuro

Member
grap3fruitman said:
You're a horribly selfish person.


It's still a federal crime I'm pretty sure you could still get prosecuted for it.
Click to expand...

So, because I'm not going to vote not guilty against someone who broke the law I'm a "horribly selfish person"?

Of course you can still get prosecuted. I'm talking about small quantities of pot.
 
C

Cyan

Banned
Like the hat? said:
Same here on both counts but I don't understand why people act like they aren't breaking the law
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Because people don't think of themselves as criminals, only other people. Instead they think about the extenuating circumstances in their crime. And with something as ludicrous as our marijuana laws, it's easy to come up with extenuating circumstances (like "this law is stupid").
 
Sye d'Burns

Sye d'Burns

Member
Chuck said:
Source (NYT)

Here is an illustrated pamphlet about jury nullification by the author of Go the Fuck to Sleep.
Click to expand...

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)

There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.
Click to expand...

Good on the article for including the bolded bit. Nullification does have its dark side.
 
N

Neuromancer

Member
Next time I'm on a jury where a guy is being charged with distributing large amounts of cocaine to people in my community I'm going to take a stand and vote NOT GUILTY regardless of the evidence against him. Basically just to give the finger to The Man. It's what the founding fathers would have wanted me to do.
 
T

toxicgonzo

Taxes?! Isn't this the line for Metallica?
Counterpoint:

Prosecution should not depend on the personal preferences of the jury at hand.
A person found guilty of one crime while another found not guilty because the jury thought they'll just let it slide? No thanks.

You have a law you find unfair, you take it through the proper venue which is legislatures.
That means putting in power those law makers who you agree will make fair laws. And that means voting responsibly.

Can't get your legislature to pass fair laws? Then don't live there. You know what the laws are there so don't be surprised when you get arrested and your only chance of salvation is the personal preferences of the jury.
 
T

The Technomancer

card-carrying scientician
Cyan said:
Because people don't think of themselves as criminals, only other people. Instead they think about the extenuating circumstances in their crime. And with something as ludicrous as our marijuana laws, it's easy to come up with extenuating circumstances (like "this law is stupid").
Click to expand...
Yup. "I'm breaking the law, but I'm not a bad person, so therefore this law isn't a very good one"
 
S

Steelrain

Member
I, for one, am going to propose the death penalty. I hope i'm allowed to do that.

Stop shitting up my air broseph.

Fucking potheads make me SICK!!!
 
S

Seanspeed

Banned
Kaijima said:
So you'd rather have The Great Machine that sees you as a data point (unless you're rich, powerful, and one of the direct contributors to the machine's upkeep)?

Here's the thing; there is not a perfect system or method of dealing with human behavior, so a jury is flawed too. As pointed out, juries drawn from pools of backwards, racists persons can cripple the system's ability to perform authentic justice.

On the other hand, with a jury, you at least have a chance of appealing to real people. Without juries, you are at the mercy of society's impersonal machine, and in the states, a machine that has been corrupted nearly beyond redemption in many areas.
Click to expand...

My ideal system would be to have a team of hired experts that make judgements. But maybe they can only serve for a certain period of time so they're not becoming completely desensitized to the human aspects.

And I'm not talking about the racists and backwards-ass people out there, I'm talking about the AVERAGE person. That still scares me as I dont think the average person is generally all that rational and fair and intelligent enough to be making serious choices that are going to massively effect somebody's life.
 
S

saunderez

Member
toxicgonzo said:
Counterpoint:

Prosecution should not depend on the personal preferences of the jury at hand.
A person found guilty of one crime while another found not guilty because the jury thought they'll just let it slide? No thanks.
Click to expand...

My counterpoint to you is why are people being charge for crimes when the jury doesn't think it warrants punishment? That's exactly what nullification is about. The masses refusing to comply with a law they think is unjust.
 
S

Sanjuro

Member
lunchtoast said:
So you don't see a reason getting rid of a stupid law if it arises during a trial? I wasn't just talking about weed here.
Click to expand...

I don't see the reason in harping about some silly pamphlet when the entire purpose of serving on a jury is to absorb the information and make a proper decision.
 
lunchtoast

lunchtoast

Member
Sanjuro Tsubaki said:
I don't see the reason in harping about some silly pamphlet when the entire purpose of serving on a jury is to absorb the information and make a proper decision.
Click to expand...

Of course the info and evidence are the main factor. I just don't want to see someone go to jail when they don't deserve it or the offense is minimal and waste more resources.
 
J

jorma

is now taking requests
Steelrain said:
I only partake in legal drugs good sir.

Thank you for letting our peers become aware of this.
Click to expand...

Oh, so when they legalise you will stop hating potheads who currently are shitting up your air and are also making you sick?

protip: it's not the potheads making you sick, it's the alcohol.
 
S

Seanspeed

Banned
toxicgonzo said:
Counterpoint:

Prosecution should not depend on the personal preferences of the jury at hand.
A person found guilty of one crime while another found not guilty because the jury thought they'll just let it slide? No thanks.

You have a law you find unfair, you take it through the proper venue which is legislatures.
That means putting in power those law makers who you agree will make fair laws. And that means voting responsibly.

Can't get your legislature to pass fair laws? Then don't live there. You know what the laws are there so don't be surprised when you get arrested and your only chance of salvation is the personal preferences of the jury.
Click to expand...

I agree with most of that. Juries aren't there to make personal moral decisions, but to uphold the law.

Also, since when are there juries for minor drug offences? Seems to me that if you're 'on trial by jury' for something drug-related, its gonna be for dealing and not just some personal possession charge.
 
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