Last modified: 7:58 AM Saturday, 14 January 2017

A bounty of mutinies?

Why jury revolt cuts both ways

Jury nullification is not a new idea, and although it is often a means of dispensing justice in an unjust judicial system, it has also amassed a history of misuse that makes it a double-edged weapon which cannot easily be either dismissed or accepted.

Jury nullification: not a new idea.

If Thomas Jefferson were alive today, saying what he said at the founding of our republic, what would the government call him?
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In the case described in this article, we see the power of the jury used for good. It has long been clear that laws criminalizing possession of marijuana, particularly in small quantities, are inherently unjust and counterproductive, and are enforced inconsistently and unfairly. Although this understanding has only begun to penetrate the stolid judiciary, most of the public has been quicker to grasp it, and if the antiquated and illogical prohibition of recreational cannabis is not soon formally repealed, jury mutinies like this one will cease to be news — this because they have become the rule rather than the exception and thus no longer newsworthy. Long before this happens, the laws will cease to be enforced because law enforcement agencies will not be willing to make arrests and prosecute in cases where their work will go for naught.

However, we must treat this weapon with respect, and must be prepared to constrain its freedom of action when necessary.

The reason for this caution traces back to the late 19th and early 20th centuries, when Ku Klux Klan and other white vigilantes made a common practice of lynching black crime suspects. The killers were then acquitted by sympathetic juries of their racist peers, using the argument that the laws forbidding such extrajudicial murders were in fact unjust to them. In the 1990s, racialist groups began to advocate the tactic to constrain the power of what they called the “Zionist Occupation Government.” And in 2009, a defendant accused of shooting a Wichita, Kansas, abortion provider suggested that the jury might nullify any conviction on moral grounds, believing that abortion is itself murder and that the shooting was therefore a justifiable homicide. This is why even today we find the leading advocates of this tactic on the political libertarian far right, and it is cause to approach the issue with extreme caution.

How to constrain this potential for mischief is not easy to answer. Perhaps the key lies in accepting jury nullification, but also in routinely holding trials in venues other than the defendants’ home cities. This would raise the cost of trials, but it would also reduce the likelihood of finding a jury pool a bit too sympathetic with the defense. But this is only one idea, and I solicit any suggestion that would tend to leave the useful aspects of this tactic unimpaired while forestalling its abuse.

Originally published as a review of a article on marijuana law and jury nullification.

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