How Jury Nullification Accelerates the Drug Wars DemiseSteve Silverman If you watch this 84-minute panel from beginning to end, youll become a jury nullification genius. But if you dont have the time to spare, Ive prepared a rough transcription below featuring my favorite quotes and moments. If you want to jump to the the beginning of a specific speakers transcript or video presentation, you can do that after the jump. Alcohol Prohibition vs. Drug Prohibition Alcohol prohibition was passed during a rigorous constitutional amendment process, but the War on Drugs was much more easily instituted by presidential edict and statutory law. Alcohol prohibition, like the drug war, was a huge failure, but it was repealed in just over 13 years. Whereas weve had 40-plus years of the War on Drugs. The court system was heavily clogged with alcohol violation cases and prosecutors leaned heavily on the plea bargain to clear the system. They were relatively generous with those pleas. On the other hand, now 90% of felonies, many of which are drug cases, never even get to a jury trial, and that is because prosecutors are maliciously stacking charges. Were seeing mandatory minimums. Were seeing drug courts and other elements that are tilting the playing field, bullying defendants into forgoing their right to trial by jury and taking a plea bargainand those plea bargains are much harsher than they would have been during prohibition. Were also seeing a two-tiered system just as we did during prohibition. Back then, prominent members of the community, often government officials, would have their own private entrances to speakeasies so that they could violate the law in privacy and comfort. In the current situation we actually have adults alive today who have never had a president who hasnt violated a drug law, yet none of these presidents have ever been prosecuted under the laws that are typically used to ruin other peoples livesand especially used against low-income individuals and and people of color. Kirsten displayed this pre-Civil War know-your-rights flyer, urging Northern abolitionists not talk to police tasked with enforcing fugitive slave laws. She highlights famousShadrack Minkins fugitive slave case and others where Northern prosecutors repeatedly failed to secure convictions under these onerous laws. Id like to reframe something that Clay [Conrad] said. He referred to jury nullification as disingenuous fact finding. Id like to suggest an alternative framing. I consider it a genuine finding that a law applied in a case at hand is wrong. The true disingenuous of the system is from laws that redefine vices, which harm nobody, as crimes. Crimes are actually things that harm people or property. And further disingenuousness comes from judges who explicitly misinform jurors of their rights. With all of these parallels [between alcohol prohibition and the fugitive slave era], there is a notable missing parallel. Mass jury nullification undermined the Fugitive Slave Act and the Compromise of 1850, contributing to bringing emancipation. Mass jury nullification made a laughing stock of prohibition, but were not seeing those things now. Jury nullification really should be a tool that we use to provide relief from the War on Drugs and to protect all of our rights. And the fact that were not makes me a little nuts. It boggles my mind. But it is indeed a tool for policy change, and we can see that because two constitutional amendments were helped along to their final passage through jury nullification. The highest and best purpose of the independent jury is to protect each other from the unjust laws and abusive prosecutions imposed by government. What is at stake is huge. You can save reputations. You can save relationships. You can save peoples livelihood or property. You can save their educations, because they might not be able to get a student loan if convicted. You can save their freedom, and you can in fact save their life. (Even if its not a death penalty case people get killed in prison.) You cannot be required to check your conscience at the courthouse door. No victim means no crime. If there is no victim, then the law is wrong. The person is not guilty. At the conclusion of every criminal trial just before the jury goes off to deliberate, the judge gives them a set of legal instructions. These instructions are very, very important, because the jurors who show up for service want to do the right thing. And while they listen to the attorneys for the defense and the prosecution, they turn to the judge for guidance on what they can and cannot do. The typical instruction that jurors hear goes something like this: Your job is to determine the facts. My job is to instruct you on the law. It is your duty to follow the law as Ive explained it to you, even if you disagree with it. So you get the idea? Youre to leave your conscience and your opinions and your convictions outside the courthouse. You can understand what happens in these drug cases we all read about. Take a case that goes into federal court where somebody is on trial for marijuana possession and the defense wants to say My client has a medical condition. She was using marijuana for medical purposes. She has cancer. She was using marijuana to help her appetite, because shes undergoing chemotherapy treatment. The federal prosecutor would say This evidence shouldnt even come into court, Your Honor. Theres no medical exception under federal law, so all that information is irrelevant. Tell the jury their duty is to follow the law. So whats going to happen in that case? Its very likely the jurors are going to think I dont like this, but we have to follow the law and theyre going to bring in a conviction. Yesterday Ethan Nadelman mentioned that even as the momentum for reform swings over into our favor, we do have some odd regulations that are on the books. Here in Colorado you can grow marijuana at home. But there are limits, right? Up to six plants. So what happens if the police arrest someone and they find eight to ten plants in their possession? Whats going to happen to them? Maybe the prosecutor is going to make an example out of this person. Weve got rules. Weve got to follow them, so whats going to happen when the jury hears those instructions? Again, theyre likely to get a conviction in that case when those are the jury instructions. New Hampshire has a new law that makes it unique among the 50 states. Heres what the new law there says: In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to those facts in controversy. This is big. This New Hampshire law is different. In all of the courthouses in all the other states, public defenders and defense attorneys are not allowed to inform the jury of these things. Youve seen it on TV when the judge gets angry and threatens to hold the defense attorney in contempt of court. Thats the power judges use to keep them from arguing the justice of a law in court. So weve had this new law on the books since January [2013]. Hows it working out so far? Its not the easiest thing to find out because jurors are not organized. At the end of trials they dont hold press conferences and say This is what we did. This is why we did it. Theres no institutional support behind jurors the way there is behind prosecutors and police. When the case is over they go home and back to work. I called some defense attorneys in NH to give me their impression of how the new law is working. They say its been a mixed bag so far. When theyre able to argue jury nullification they get an acquittal or at least a hung jury mistrial. And I said What do you mean when you canargue nullification? It turns out some of the judges are fighting back and are basically ignoring the new law. They are doing this in two ways First, sometimes the judge might say Im going to decide if this is a nullification case or not. If I think its a nullification case, then you can argue nullification. If I dont think its a nullification case, then you cant argue nullification. It goes right against the spirit of the law. The second way judges have undermined the law is by allowing the defense to make their jury nullification argument to the jury, but then they give a misleading instruction to the jury right before they go into deliberations. This is what happened in the case of Rich Paul who was convicted of selling marijuana to an undercover agent. This case is pending appeal by the Supreme Court of New Hampshire. There should be a ruling within the next six months. I think were in a pretty good place. If the New Hampshire Supreme Court orders a new trial for Rich Paul, and slaps down what this trial judge has done then were back in business and were even stronger than we were before. But if the New Hampshire Supreme Court approves the shenanigans of what this trial judge did, I think its going to prompt a reaction from the legislature. And then well have a chance to write an even stronger and more explicit law on what should be the nullification arguments and procedures in trial courts. And then once we have this jurisdiction where nullification procedure is solidly in place for a while, were going to demolish one of the primary objections weve heard over the years. (This is the same dynamic going on with legalization in Washington and Colorado) Weve finally got some jurisdictions to break this wide open and say Look now were going to find out if there are problems or if things will work out fine. Then we can go to other states and say Look, were doing it in New Hampshire. It affects some cases, but its not a big deal. The sky isnt falling. 1) Doesnt jury nullification undermine rule of law? 2) Cant jury nullification blow back on the defendant? 3) Doesnt jury nullification violates the jurors oath? How Jury Nullification Advances Drug Reform In Washington and Colorado we won through the initiative process by going around politicians. Jury nullification is another mechanism to go around the politicians by going directly to the people in the community. My role on this panel has been to report on developments in New Hampshire and the prospect for [changing laws in other states]. But in the meantime, before these state legislative battles, we can accelerate the pace for reform by simply spreading the word about jury nullification. There arent many people here who have close ties to politicians. But I bet everybody here has a family member, a friend, an acquaintance, a neighbor, or a coworker who has receivedor is going to receivea jury summons. Dont let these opportunities slip by. In ten minutes you can share important information about jury nullification from your laptop or iPad. Blast this information to all of your contacts. When we win an acquittal through jury nullification thats an opportunity to start this cycle all over again. Take that news story and blast it to all your contacts, planting the seeds again for a future case by reminding people that the nullification prerogative is out there and they can use it when the situation is right. 