A Nullification Crisis
Jason Kuznicki on Jun 10th 2006
Julian Sanchez discusses jury nullification:
I was once again invited to do my civic duty by going through the Brazil-esque process of juror selection at a courthouse in downtown D.C. today, and I found myself thinking of a quandary my friend Baylen Linnekin faced last year. A commited anti–Drug War activist, he’d had an opportunity to serve on a drug case, but been promptly removed from the pool upon revealing his views on the subject. He’d solicited comments, and at the time, I opined that it would’ve been perfectly morally justifiable to fudge that point (or, if we want to be sticklers about it, to perjure yourself) in the interest of preventing someone from being convicted of violating an unjust law. I even recalled musing it was a shame I hadn’t had a chance to do something like that last time I was called, when (thanks to a last-minute settlement) I didn’t even make it to voir dire.
Sanchez and I are both strongly against the Drug War. I know that I write about same-sex marriage more often than I do about the Drug War, but if anything, I feel more strongly about the latter. Mostly it’s a question of what firsthand source material I have. (I’m not into drugs.) But the Drug War destroys lives and families. It tramples the liberties of everyone, whether they’re into drugs or not. It is not worth what we pay for it, and it is by far the most serious abuse in our system of government today.
Sanchez continues:
We went through the usual litany of questions, with each of the hundred or so prospective jurors writing down the numbers of any they answered “yes” to. “Number Six: Are you or any close friends or relatives lawyers, or have you or any of those people studied law?” Oh, goodness yes… “some of my best friends,” as they say. “Number Nine: Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.”
But if I read this right, I do not think it would not be perjury for him to answer “no.” If he truly believes that prohibitionary drug laws are unconstitutional — and I certainly think that they are — then this is an objective application of the law at hand. Jurors are not to ignore the Constitution when they take the jury oath, I’d think.
What do others think? Unlike half of Positive Liberty, I’m not a lawyer, so I would be interested in hearing from those who are.
Filed in The Bench
Here is what would happen:
At the end of the trial, the judge will tell you that he is the sole arbiter of the law. And he will explain “the law” to you, often in great detail. He (or she) will also tell you that the law requires that you the jury are to judge the facts only, not the law. He might also remind you of your oath to follow the law.
You then have to decide if your understanding of the Constitution trumps that situation.
Jury nullification is a very complex issue, one which I haven’t given enough thought to give a good legal answer.
I will say that were I on the jury there is no way in Hell I’d vote to convict. Is this jurors exercising their right to interpret the Constitution or simple civil disobedience? I’m not sure.
The Supreme Court is the ultimate arbiter of what is constitutional and civil disobedience comes with the risk that you accept the punishment for violating the civil law.
But, I’m not sure if jury nullification violates any law.
Were I in Sanchez’s position, I’d do the same thing, honestly tell the court that I don’t believe in the drug war and let them dismiss me as a juror.
I could certainly see that if enough people refused to serve on juries, it might send a signal to the courts, but I’m not sure how much impact that signal would really have. By contrast, voting to acquit a nonviolent drug user would save at least one person from a punishment he doesn’t deserve.
I understand a similar dynamic can be seen in death penalty cases. A relative of mine declared in the voir dire for one of these that she would be unable to vote for the death of another human being. She was dismissed.
It’s simply this. You don’t, as a juror, get to decide what you think the law ought to be and decide on that basis. You, as a juror, get to decide based on the facts and the law as it stands. If you have a problem with that, you need to state that and let the voir dire process do its thing. Don’t like the law? Fine. There are ways to effect change. Jury duty is not it.
I hung a jury in a gun case. The defendent’s “crime” was not having his paperwork in order for a gun he owned. During deliberations I argued the facts of the case and not the law — it’s important not to argue the law.
You should know enough about what’s right and wrong to know what to do during voir dire.
[...] Although I agree that the Drug War is immoral, unconstitutional, and unjustifiable in every way, I’m not so confident in my thoughts about jury nullification. It is obviously an important and legitimate part of the judicial system—I’m not sure what the point of having a jury system would be if jury nullification did not exist. That being said, we have to think about these things as realistically as possible. [...]