My Jury Service to America

I have jury duty on July 2, and I can't wait. If I get put on a jury in a non-violent drug case, I'll vote "not guilty," based on my principles -- even if I think the defendant actually did it. As I report for jury duty just before July 4, I'll declare my independence from costly and ineffective punishment for non-violent offenders.

As a former federal prosecutor, I worked on scores of cases that helped keep the War on Drugs alive and drained tax dollars to finance an exploding prison population. I now know that the best way to send a loud and clear message for change in the criminal justice system is to use my constitutional power, as a juror, to "nullify."

Inner-cities across the nation, from the Bronx, NY, to Washington, D.C., are home to "million dollar" blocks -- neighborhoods where, on just one street, the government is spending that much money to lock up citizens. Now, during a time when we can least afford wasteful government spending, when President Obama has stated that locking up non-violent drug offenders is a "blind and counterproductive policy," some jurors are saying enough is enough.

Jury Nullification is perfectly legal and has a long history- indeed the framers of the Constitution intended jurors to serve as a check on bad prosecutions and ineffective laws. Northern jurors helped abolish slavery by refusing to convict people "guilty" of helping slaves escape. Nullification was also a factor in ending Prohibition, which locked up people for selling liquor, and created the same violent market and drive-by shootings (remember Al Capone?) that we now see for other illegal drugs.

The Supreme Court ruled about a century ago that jurors don't have to be told about jury nullification, so it's a secret power that all ordinary citizens possess. To this day, no juror has ever been punished for nullifying. The federal appeals court in Washington D.C. described nullification as "hard medicine," saying it was appropriate in special cases, but not for every day.

But the D.C. court made that ruling in 1973 -- long before the War on Drugs resulted in the greatest expansion of prison population in the history of the free world. There are now more Americans in prison for drug offenses alone than there were for every crime in 1973. If our criminal justice system ever needed hard medicine, it needs it now.

The War on Drugs has proven to be a colossal failure. It doesn't get dealers off the street because there are always new workers willing to enter this lucrative market. Punishment doesn't get people off drugs; treatment programs are more effective at getting addicts the medical care they need.

The main lesson that the 500,000 non-violent drug offenders are learning is prison is how to be a better criminal -- taught by the experienced murders, rapists, and armed robbers they're locked up with. My years as a federal prosecutor have made public safety my primary concern. One of the reasons I'll vote not guilty is to stop a non-violent drug offender from going to the state penitentiary -- finishing school for criminals.

Voting on principal in non-violent drug cases is part of a nationwide movement that is quickly gaining momentum. The TV series "The Wire" vividly depicted the havoc that the war on drugs has wrecked upon Baltimore. Last year the program's writers -- including David Simon, Richard Price and George Pelacanos -- said that their experience in Baltimore led them to one conclusion -- if they were ever on a jury in a drug case, they would vote to acquit.

Like all the old school civil rights activists who refused to convict those accused of helping slaves see their way to freedom and whose "creative disobedience" stopped legal segregation, new school jurors have the power to change bad drug policies that destroy communities. If selected for jury duty in a non-violent drug case, I will ask my fellow jurors if putting the defendant behind bars will make the community safer. I want to inspire a jury deliberation about justice as well as law.

Paul Butler is a law professor at George Washington University. He recently published "Let's Get Free: A Hip-Hop Theory of Justice" (The New Press).

Comments

[BillHarris]

A double digit demographic is aware that the Controlled Substances Act is unjust. That is my peer group. But if I were busted, none of them would be allowed on my jury of peers. None of them would be able to even consider further waste of taxpayer resources by a guilty verdict. The bleeding hearts will be free to go with no blood on their hands. Look at the size of the jury pools needed to fill a panel with the right stuff. The so-called jury of peers is a jury of only the accuser's peers.

[modwiz]

Another thing the average American is unaware of is how many prisons are now privately run for profit corporations. Now if your way of rewarding shareholders is to incarcerate more people then you have a system that should be made illegal...­.yesterday­. Ponder the possible back room deals of judges who impose harsh sentences. The D,A.'s who seek them, perhaps even underpaid public defenders can be ''convinced'' ( do I smell lobbyist money?) that their clients must do some time. And public tax dollars pay these corporations to lock up our citizens and neighbors. Why do legislators still uphold and pass drug laws even though the majority of people think it is bogus and criminal in and of itself? Lobbyists!!!
Until politicians are afraid for their jobs and possibly their health we will continue to be ignored and shat upon.

[LawrenceOfAcademia]

Nice way to get out of jury duty, professor, even if you're correct.

Wouldn't it have been more effective -- not to mention shielding you from such accusations as mine -- if you had written this AFTER you had or had not been called?

[Mike Armstrong]

Our drug laws were engineered and retained by racists and fascist. Alcohol prohibition victimized too many whites for white society to continue the damage.

Current proponents of prohibition fit into one or both of two groups: Evil or ignorant.

Economic fact amply demonstrates the evil this inflicts on society:
http://mises.org/books/prohibition.pdf

[ash711]

Thank you for your article. I think the America I grew up in is being destroyed daily. Drug laws have made lawyers rich, and taxpayers poor due to the cost of sending someone to prison. In California we are spending $47,000 a year per inmate. If anyone has seen LOCKUP ON MSNBC, you soon realize that prison is no country club. Anyone who has done a few weeks in jail to 6 months realizes what a "hell on earth" type of place it is. As someone who has done a done a few weeks related to a DUI, all you get from going to prison is a hatred of the system and to a degree the police. As I have thought it through, I think the police are victims of the laws also. They have to enforce laws that even they might think are crazy. Of course, this is where cameras in police cars comes into play. I always thought these cameras were a good idea, but not anymore. I think police need discrection in making arrests and these cameras are there for the bloodsucking lawyers who want to make a case either on the person being stopped(as in a DUI case) or the cop doing something questionable. These same lawyers have made the laws that screw men in domestic violence cases and divorce court. We need to stop the legal system from destroying America, just like HMO's are destroying health care, and politicians are destroying America with the laws.

[jhamm1]

Whoops, sorry. I meant to say "not only unwinnable".

[jhamm1]

Obviously, this is the best we can hope for, pending the realization of elected officials that the so-called drug war is not unwinnable, but amoral in the context of locking up thousands of non-violent individuals who, aside from doing harm to no one but themselves, are only likely to re-emerge from the company of robbers, rapists, and serial killers, as more likely to commit crimes of a violent nature.

[Flavor]

I really wish you would not state that to them,because then you'll go home, so how will that change anything? but moving right along I basically agree with you it is really ironic you wrote this article beause I was just thinking on yesterday that we need to stop building all these prisons because everybody don't need to go to prison for a drug sell, they need rehabilitation but if there going to build a jail build one for these crooked politicians who are being exposed for all these wrong their doing. You need not to go and voice that and then not be chosen to sit on a drug trial, you know the buisness better than us, you know when you get thru being asked, can you be fair on this trial what your answer will be and then they won't choose you, then they will turn around and change the way they will pick a juror because you would have tainted the the people so the prosecutors would think, so you need to be a juror thats where you would be effective.

[dan-o]

If you are prejudging a case shouldn't you tell that during jury selection? Are you guilty of anything if you don't disclose your views before the trial startsand you are selected. I agree with you that people convicted of non-violent drug charges should be treated versus jailed. If you prejudge a case based on the type of case then you need to be prosecuted. How are you any different than those who violated our judicial system by refusing to convict white defendents in the old south.

[medic628]

I agree with you. the so called war on drugs was code to lock up a certain part segment of the population. However, you have to show up but you are going home.

[onepotatotwopotato]

You may also want to check out the following:

Fully Informed Jury Association: http://fija.org/

Libertarian Party: http://www.lp.org/

[WorkingClass]

I'm with you Professor. But if you tell the truth during jury selection, wont they send you home?

[WilliamProc]

Good for you sir! However, doesn't posting your feeling on the subject here invalidate you from serving?

[mfprtoo]

A-Men !

[matthewdfleming]

good for you. I feel exactly the same way about jury nullification and have been eagerly awaiting my chance to nullify some non-violent drug charges.