Jury Nullification

 Posted by on 15 August 2008 at 11:06 am  Law
Aug 152008

This interesting Volokh Conspiracy post on jury nullification reminded me that I’ve been called for jury duty on Tuesday.

Suppose that I’m asked to sit on a trial of a person for possessing and/or selling illegal narcotics. Suppose that he’s obviously guilty. Should I vote to convict or not?

If America were substantially free, I would be somewhat more inclined to oppose jury nullification, on the grounds that any bad laws can and perhaps ought to be repealed by the legislature or struck down by the appeals courts. Moreover, to engage in jury nullification might seem to be an attack on the principle of the rule of law, as it would permit juries to decide willy-nilly whether to enforce the law of the land or not.

However, I’m not convinced that that’s right for two reasons. First, that approach involves sending people to prison (or inflicting some other punishment) for something that they have a perfect right to do. That seems to be a moral sanction of the unjust law, not to mention participating in a blatant rights violation. Second, jury nullification on a high profile case can serve as a major public rebuke to an overreaching legislature. (That happened in some of the sedition cases in America’s early years.) Moreover, the judicious use of jury nullification in select cases is not tantamount to anarchy, I don’t think. It can and ought to be used selectively and purposefully.

However, America today is not a substantially free society, so the case for jury nullification is even stronger. In fact, as concerns drug laws, America is far closer to a police state than a free society. The most recent mind-numbing case is the raid on the home of Berwyn Heights Mayor Cheye Calvo: “A Prince George’s County, Maryland SWAT team raided the home of Berwyn Heights Mayor Cheye Calvo last night, shooting and killing his two black labs in the process.” The man was totally innocent: drug dealers sent a 30 pound package of marijuana to his house, planning to intercept it. The police treated him as guilty until proven innocent, despite the fact that all evidence pointed to his being an upstanding citizen. (You can find links to more posts on the story here. Here’s another horrific case. In general, Radley Balko is a good source for news about the frightening tactics of police in pursuit of the war on drugs. He’s on vacation now, however, so other people are guest-blogging for him.)

So… back to my original question: If I’m picked for a jury, should I send a person to jail for an action that ought not be a crime at all — on the grounds that I ought to respect the rule of law, even when I disagree with the particular law in question?

Unless someone offers a good reason for me to think otherwise, I’ll have to say “no way, buster.” You’ve got until Tuesday morning to convince me otherwise, if you wish!

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