Courts around the country are having more trouble prosecuting marijuana cases because of increasing awareness of a constitutional doctrine called jury nullification.
Under the Bill of Rights, jurors have the power to find a defendant not guilty if they find the law in question is flawed – even if the person being accused actually did smoke pot (or commit another victimless crime).
In his NY Times piece titled Jurors Need to Know That They Can Say No, Paul Butler explained the history and purpose of nullification:
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 Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”
Unfortunately, though, jurors are not always informed about the option, Butler goes on to explain:
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.
About three years ago, a judge in Montana threw out a man’s criminal marijuana possession charge because he could not find a jury that would convict the man for simple possession of marijuana:
Ed Forchion is also known as NJ Weedman. He’s a medical marijuana patient who was diagnosed with bone cancer 13 years ago. A New Jersey state trooper pulled Forchion over for a minor traffic violation in 2010. That stop escalated into a search of his vehicle, during which police found more than a pound of marijuana and a large amount of cash.
Forchion faced up to 10 years in prison for “possession with intent to distribute”, but he took a unique approach to his jury trial: he represented himself in court, and argued not only for his innocence but also against the morality of the law itself.
“The only reason I’m standing here is because I happened to know about jury nullification. And I used it.”
Here, he shares his story with Reason TV:
In 2012, 59-year-old New Hampshire resident Doug Darrell was arrested after a National Guard helicopter flying over his home found he was growing 15 marijuana plants in his backyard. At Darrell’s trial, jurors nullified the case against him. His case was unusual – during the trial, the judge, per request from defense attorney Mark Sisti, notified the jury of their nullification power by reading them the following:
“Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.”
Last June, New Hampshire passed a bill that explicitly allows defense attorneys to tell jurors about jury nullification.
But many courts still do not inform juries of the right to nullify, and some say prosecutors will weed out potential jurors who reveal that they are aware of that right, per the Informed Jury Association:
I believe the reason why prosecutors don’t want a juror to know about jury nullification are because they know that if people were to be aware of this that they would lose. The big bad tiger called government does not like losing. They will intentionally screen out potential jurors who they think will impose jury nullification, or are aware of it. If you contest a cannabis charge, they feel impelled to stack the deck against you to use the jurors to support their weak law.
Jury nullification works, and it’s exactly why the prohibition of alcohol was overturned years ago.
It is up to us, as Americans, to ensure that our fellow citizens don’t become a victim of the senseless – and astronomically expensive – “drug war”.
If you are summoned for jury duty and would like to know how to jury nullification works, Steve Silverman of Flex Your Rights explains the process here.
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Contributed by Lily Dane of The Daily Sheeple.
Lily Dane is a staff writer for The Daily Sheeple. Her goal is to help people to “Wake the Flock Up!”