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How Extreme Right-Wingers Are Using Marijuana as Trojan Horse for Their Schemes

Jury nullification is a long-term pet project.

Can members of juries really stand in judgment of the laws they are sworn to apply? Can jurors really choose to acquit someone of a crime because they believe a law is unjust?

This concept – known as “jury nullification” – has been promoted in previous decades by far-right extremists who sought to “nullify” a variety of federal laws by encouraging jurors not to enforce them. The cases involved civil rights laws, tax statutes and criminal acts by white perpetrators aagainst black victims. It was avidly promoted in the 1990s by members of the antigovernment “Patriot” movement, particularly so-called “Freemen” in Montana who promoted the sovereign citizen ideology.

More recently, it has popped up in the context of the debate over marijuana legalization. It was signaled by a 2011 New York Times op-ed that advocated nullification in court battles over marijuana arrests, which disproportionately affect young black men.

A 2013 case, in which a medical marijuana dispensary owner was accused of breaking federal laws, gained even more attention after then-San Diego Mayor Bob Filner urged the jury to nullify the man’s arraignment. (The defendant eventually accepted a plea bargain.)

A 2012 case, in which a New Hampshire man accused of growing marijuana was found innocent by a local jury, is widely regarded as an instance of nullification. Recently, New Hampshire magazine ran an article examining the question titled “Understanding Jury Nullification” that presented it in a largely positive light. Executive Editor Rick Broussard told Hatewatch that the magazine – which mostly features lifestyle-oriented fare – included the piece because nullification had become part of an ongoing legal debate in the state.

Far-right activists also remain prominent promoters of the concept, which continues to percolate in anti-tax and antigovernment circles. The efforts to promote the idea were applauded by the Washington Times in an article last year, as well as in a John Birch Society magazine article. Most recently, a paleoconservative Republican from Alaksa sponsored legislation in the state assembly that would explicitly permit jury nullification, raising concerns in the law enforcement community.

So, what is “jury nullification” all about?

There is in fact a long history of jury nullification both in American and English law –  cases in which the jurors simply ignored the requirements of the law and set the accused free. However, it has primarily been viewed as a malfunction of the law, not as a principle to be embraced.

“Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court,” according to a 1997 ruling by Judge Jose Cabranes, who said jurors who reject the law should not be allowed to serve. An appeals court upheld the ruling but determined that only “unambiguous evidence” of a juror’s disregard of the law can justify dismissal.

Other jurists have been equally clear about the actual standing of jury nullification:

“It is a recipe for anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established law.” – Colorado circuit Judge Frederic B. Rodgers

“Jury nullification is indefensible, because, by definition, it amounts to juror perjury – that is jurors lying under oath by deciding a case contrary to the law and the evidence after they have sworn to decide the case according to the law and the evidence.” – D.C. Superior Court Judge Henry F. Greene

The leading proponent of jury nullification is a Montana-based outfit called the Fully Informed Jury Association (FIJA), which has attracted a substantial audience among libertarians and drug-war critics (a small splinter group, also based in Montana and with a similar name, was overtly extremist and closely associated with the Montana Freemen). Here’s how the group touts itself on its website:

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