Ny Times Op-Ed: To End Ridiculous Pot Arrests, Jurors Should Refuse to Convict Marijuana Arrestees (And Can Do So Legally)

 Paul Butler, a former federal prosecutor and law professor at George Washington University, has an idea to help everyday Americans stand-up against the harsh marijuana laws most of them do not support: "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 adults,"  he wrote Monday in an op-ed for the New York Times.  The tactic is called "jury nullification," and it is perfectly legal. "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," Butler said. 

Clearly, public opinion is not reflected in the federal government's crackdown on legal medical marijuana programs, nor is it evident in high arrest rates.  A recent Gallup poll showed that  50% of Americans' favor marijuana legalization -- a record high --, and a CBS poll found that even more Americans, 77 percent, believe medical marijuana should be legal, though the majority also said that current medical marijuana programs are not being used to alleviate "suffering serious medical conditions."  And yet, even as more Americans than ever support some kind of marijuana legalization, arrests for medical marijuana are at an all-time high:  "In 2010, police made 853,838 arrests in 2010 for marijuana-related offenses, according to the Federal Bureau of Investigation’s annual Uniform Crime Report," Paul Armentano recently reported on AlterNet. 

Butletr suggests that Americans need not lie down as hundreds of thousands of us are arrested for pot offenses, the majority of which are personal possession charges. According to Butler, jury nullification "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.'"

Prosecutors, however, have taken legal action to prevent Americans from being informed of this right. Butler said disclosing the truth about nullification 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.

According to Butler, nullification is a tool that has been credited with helping to end alcohol prohibition and laws that criminalize gay sex. Racist juries in the south, too, used nullification, to refuse to convict persons charged with violent acts against Civil Rights activists. 

Butler concluded, 

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.

Could ordinary Americans, utilizing their right to determine justice by refusing to convict people of marijuana crimes, be the next wave in the marijuana legalization movement? 

AlterNet / By Kristen Gwynne

Posted at December 21, 2011, 11:01am

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