Break out the world’s smallest violin for prosecutors in Alachua County, Florida: They’re having problems finding citizens who’ll jail other citizens for marijuana possession. In one recent case it took hours to weed out (pun intended) prospective jurors who didn’t think marijuana should be illegal.
Cindy Swirko’s “When opinions on pot, and the law, collide” (March 22, Gainesville Sun) is a refreshingly fair-minded piece on this “problem” and on the wider phenomenon of jury nullification.
Jury nullification occurs when a jury bases its verdict not on the facts of a case, but on the jurors’ opinion that the law is defective or morally wrong. That may sound strange but it’s an important part of American legal history.
Jury nullification was a key tool of the 19th century’s anti-slavery movement. The Fugitive Slave Act imposed criminal penalties for assisting fleeing slaves. Northern juries refused to convict Underground Railroad activists.
Jury nullification also helped end alcohol prohibition as juries frequently declined to convict bootleggers. In one (perhaps apocryphal) case, the jury allegedly “drank the evidence,” then acquitted.
In a 1969 case, United States v. Moylan — the defendants stood accused of impeding the military draft — the Fourth Circuit Court of Appeals held, unanimously, that “if the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide that decision.”
As more and more Americans conclude that the “war on drugs” — especially marijuana — is impractical and immoral, that force is once again making itself felt.
Prosecutors hate jury nullification. It messes up their batting averages.
The measure of prosecutorial effectiveness is the conviction rate. That’s why “plea bargains” are so popular. 92% of Americans charged with crimes plead guilty in return for lesser charges or lighter sentences. Of the 8% who go to trial, 3/4 are convicted.
Yes, that’s right — of 50 Americans accused of crimes, 49 plead guilty or are convicted. But that one acquittal drives prosecutors nuts. So, with the cooperation of judges, they’ve turned jury selection into an extended interrogation with only one acceptable answer: “Yes, I will serve unquestioningly as your rubber stamp.”
The Fully Informed Jury Association (fija.org) fights this trend, working to ensure that prospective jurors know about their right to “judge the law as well as the facts,” and to explicitly codify in our laws an obligation of judges to inform them of that right.
Are your legislators sponsoring a Fully Informed Jury Act in your state? If not, maybe you should call their offices and ask why.
Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.
- “An American spelling lesson: J-U-R-Y does not spell ‘rubber stamp,’” by Thomas L. Knapp, Batesville, Arkansas Daily Guard (paywall), 03/24/15
- “J-U-R-Y does not spell ‘rubber stamp,'” by Thomas L. Knapp, University of Indiana Daily Student, 03/24/15
- “J-U-R-Y doesn’t spell ‘rubber stamp,'” by Thomas L. Knapp, Nogales, Arizona International, 03/27/15
- “Juries don’t have to roll over in trials,” by Thomas L. Knapp, Green Valley, Arizona News & Sun, 03/28/15
- “J-U-R-Y Does Not Spell ‘Rubber Stamp,'” by Thomas L. Knapp, St. Joseph, Missouri Telegraph, p. 5, 04/02/15