[Peace-discuss] Jurors: Just Say No

[Carl G. Estabrook]

NEW YORK TIMES
December 20, 2011
Jurors Need to Know That They Can Say No
By PAUL BUTLER
Washington

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.”


MORE IN OPINION (8 OF 24 ARTICLES)
Opinionator | Fixes: Why ‘Solutions Journalism’ Matters, Too
Read More »
Close

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.chambana.net/pipermail/peace-discuss/attachments/20111221/18e42d85/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: upnext_rest.png
Type: image/png
Size: 583 bytes
Desc: not available
URL: <http://lists.chambana.net/pipermail/peace-discuss/attachments/20111221/18e42d85/attachment-0001.png>