I recently had the privilege of joining three jury nullification heavyweights on a panel hosted by the International Drug Policy Reform Conference. The discussion focused on how strategic jury nullification can be used to dismantle the War on Drugs.
If you watch this 84-minute panel from beginning to end, you’ll become a jury nullification genius. But if you don’t have the time to spare, I’ve prepared a rough transcription below featuring my favorite quotes and moments. If you want to jump to the the beginning of a specific speaker’s transcript or video presentation, you can do that after the jump.
Alcohol Prohibition vs. Drug Prohibition
Alcohol prohibition was passed during a rigorous constitutional amendment process, but the War on Drugs was much more easily instituted by presidential edict and statutory law. Alcohol prohibition, like the drug war, was a huge failure, but it was repealed in just over 13 years. Whereas we’ve had 40-plus years of the War on Drugs.
The court system was heavily clogged with alcohol violation cases and prosecutors leaned heavily on the plea bargain to clear the system. They were relatively generous with those pleas. On the other hand, now 90% of felonies, many of which are drug cases, never even get to a jury trial, and that is because prosecutors are maliciously stacking charges. We’re seeing mandatory minimums. We’re seeing drug courts and other elements that are tilting the playing field, bullying defendants into forgoing their right to trial by jury and taking a plea bargain—and those plea bargains are much harsher than they would have been during prohibition.
Drug War & Race
We’re also seeing a two-tiered system just as we did during prohibition. Back then, prominent members of the community, often government officials, would have their own private entrances to speakeasies so that they could violate the law in privacy and comfort. In the current situation we actually have adults alive today who have never had a president who hasn’t violated a drug law, yet none of these presidents have ever been prosecuted under the laws that are typically used to ruin other people’s lives—and especially used against low-income individuals and and people of color.
Kirsten displayed this pre-Civil War know-your-rights flyer, urging Northern abolitionists not talk to police tasked with enforcing fugitive slave laws. She highlights famous Shadrack Minkins fugitive slave case and others where Northern prosecutors repeatedly failed to secure convictions under these onerous laws.
I’d like to reframe something that Clay [Conrad] said. He referred to jury nullification as ‘disingenuous fact finding.’ I’d like to suggest an alternative framing. I consider it a genuine finding that a law applied in a case at hand is wrong. The true disingenuous of the system is from laws that redefine vices, which harm nobody, as crimes. Crimes are actually things that harm people or property. And further disingenuousness comes from judges who explicitly misinform jurors of their rights.
With all of these parallels [between alcohol prohibition and the fugitive slave era], there is a notable missing parallel. Mass jury nullification undermined the Fugitive Slave Act and the Compromise of 1850, contributing to bringing emancipation. Mass jury nullification made a laughing stock of prohibition, but we’re not seeing those things now. Jury nullification really should be a tool that we use to provide relief from the War on Drugs and to protect all of our rights. And the fact that we’re not makes me a little nuts. It boggles my mind. But it is indeed a tool for policy change, and we can see that because two constitutional amendments were helped along to their final passage through jury nullification.
The highest and best purpose of the independent jury is to protect each other from the unjust laws and abusive prosecutions imposed by government.
What is at stake is huge. You can save reputations. You can save relationships. You can save people’s livelihood or property. You can save their educations, because they might not be able to get a student loan if convicted. You can save their freedom, and you can in fact save their life. (Even if it’s not a death penalty case people get killed in prison.) You cannot be required to check your conscience at the courthouse door. No victim means no crime. If there is no victim, then the law is wrong. The person is not guilty.
The Power of Jury Instructions
At the conclusion of every criminal trial just before the jury goes off to deliberate, the judge gives them a set of legal instructions. These instructions are very, very important, because the jurors who show up for service want to do the right thing. And while they listen to the attorneys for the defense and the prosecution, they turn to the judge for guidance on what they can and cannot do.
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The typical instruction that jurors hear goes something like this: ‘Your job is to determine the facts. My job is to instruct you on the law. It is your duty to follow the law as I’ve explained it to you, even if you disagree with it.’ So you get the idea? You’re to leave your conscience and your opinions and your convictions outside the courthouse.
You can understand what happens in these drug cases we all read about. Take a case that goes into federal court where somebody is on trial for marijuana possession and the defense wants to say ‘My client has a medical condition. She was using marijuana for medical purposes. She has cancer. She was using marijuana to help her appetite, because she’s undergoing chemotherapy treatment. The federal prosecutor would say ‘This evidence shouldn’t even come into court, Your Honor. There’s no medical exception under federal law, so all that information is irrelevant. Tell the jury their duty is to follow the law.’ So what’s going to happen in that case? It’s very likely the jurors are going to think ‘I don’t like this, but we have to follow the law’ and they’re going to bring in a conviction.
Yesterday Ethan Nadelman mentioned that even as the momentum for reform swings over into our favor, we do have some odd regulations that are on the books. Here in Colorado you can grow marijuana at home. But there are limits, right? Up to six plants. So what happens if the police arrest someone and they find eight to ten plants in their possession? What’s going to happen to them? Maybe the prosecutor is going to make an example out of this person. ‘We’ve got rules. We’ve got to follow them,’ so what’s going to happen when the jury hears those instructions? Again, they’re likely to get a conviction in that case when those are the jury instructions.
New Hampshire has a new law that makes it unique among the 50 states. Here’s what the new law there says:
In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to those facts in controversy.
This is big. This New Hampshire law is different. In all of the courthouses in all the other states, public defenders and defense attorneys are not allowed to inform the jury of these things. You’ve seen it on TV when the judge gets angry and threatens to hold the defense attorney in contempt of court. That’s the power judges use to keep them from arguing the justice of a law in court.
So we’ve had this new law on the books since January . How’s it working out so far? It’s not the easiest thing to find out because jurors are not organized. At the end of trials they don’t hold press conferences and say ‘This is what we did. This is why we did it.’ There’s no institutional support behind jurors the way there is behind prosecutors and police. When the case is over they go home and back to work.
I called some defense attorneys in NH to give me their impression of how the new law is working. They say it’s been a mixed bag so far. When they’re able to argue jury nullification they get an acquittal or at least a hung jury mistrial. And I said ‘What do you mean when you canargue nullification?’ It turns out some of the judges are fighting back and are basically ignoring the new law. They are doing this in two ways…
First, sometimes the judge might say ‘I’m going to decide if this is a nullification case or not. If I think it’s a nullification case, then you can argue nullification. If I don’t think it’s a nullification case, then you can’t argue nullification.’ It goes right against the spirit of the law.
The second way judges have undermined the law is by allowing the defense to make their jury nullification argument to the jury, but then they give a misleading instruction to the jury right before they go into deliberations. This is what happened in the case of Rich Paul who was convicted of selling marijuana to an undercover agent. This case is pending appeal by the Supreme Court of New Hampshire. There should be a ruling within the next six months.
I think we’re in a pretty good place. If the New Hampshire Supreme Court orders a new trial for Rich Paul, and slaps down what this trial judge has done then we’re back in business and we’re even stronger than we were before. But if the New Hampshire Supreme Court approves the shenanigans of what this trial judge did, I think it’s going to prompt a reaction from the legislature. And then we’ll have a chance to write an even stronger and more explicit law on what should be the nullification arguments and procedures in trial courts.
And then once we have this jurisdiction where nullification procedure is solidly in place for a while, we’re going to demolish one of the primary objections we’ve heard over the years. (This is the same dynamic going on with legalization in Washington and Colorado) We’ve finally got some jurisdictions to break this wide open and say ‘Look now we’re going to find out if there are problems or if things will work out fine.’ Then we can go to other states and say ‘Look, we’re doing it in New Hampshire. It affects some cases, but it’s not a big deal. The sky isn’t falling.’
1) Doesn’t jury nullification undermine rule of law?
“No. Jury nullification is a part of our law. It’s part of the checks and balances in our constitutional system. Just as pardon power is used by governors and the president, juries have the power to bring back acquittals.”
2) Can’t jury nullification blow back on the defendant?
“We can set it up in such a way where the defense will be in control. It will be up to the defense to make a jury nullification argument to the jury. Or it’s up to the defense to ask for a jury nullification instruction from the judge. It’s a tactical decision, just like whether or not the defendant will testify or not in court. It’s totally up to the defense to exercise the option or not.”
3) Doesn’t jury nullification violates the jurors’ oath?
“If there’s any problem, the problem is the way with which these oaths are written. The problem is not with the ability of jurors to vote according to their conscience.”
How Jury Nullification Advances Drug Reform
In Washington and Colorado we won through the initiative process by going around politicians. Jury nullification is another mechanism to go around the politicians by going directly to the people in the community. My role on this panel has been to report on developments in New Hampshire and the prospect for [changing laws in other states]. But in the meantime, before these state legislative battles, we can accelerate the pace for reform by simply spreading the word about jury nullification.
There aren’t many people here who have close ties to politicians. But I bet everybody here has a family member, a friend, an acquaintance, a neighbor, or a coworker who has received—or is going to receive—a jury summons. Don’t let these opportunities slip by. In ten minutes you can share important information about jury nullification from your laptop or iPad. Blast this information to all of your contacts. When we win an acquittal through jury nullification that’s an opportunity to start this cycle all over again. Take that news story and blast it to all your contacts, planting the seeds again for a future case by reminding people that the nullification prerogative is out there and they can use it when the situation is right.