Jurors Need to Know That They Can Say No
By PAUL BUTLER
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 adult. 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.
The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in
Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in
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.
The doctrine 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
In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.
Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year,
There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.
How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in
Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the
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
Paul Butler, a former federal prosecutor, is a professor of law at
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs
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