With Colorado and Washington passing laws to make marijuana legal (the initiative failed in Oregon), backers of saner drug laws have to be celebrating as the nation moves a step closer to the day when hundreds of thousands of Americans annually won’t be needlessly turned into felons.
But even in states with pot laws still on the books, there is a relatively simple way we can quit filling our nation’s prisons: Jury nullification.
During Prohibition there were large pockets of resistance to the wrongheaded and ineffective law of the land that made the manufacture and consumption of alcohol illegal.
In the hills and hollers of Kentucky, Tennessee and other part of the south, backwoods distilleries operated with virtual impunity.
Indeed, because of the smoke created in the whisky-making process, it was exceptionally easy for the hated government “revenooers” to spot stills … but getting convictions for violating the 18th Amendment was entirely another matter.
Juries simply nullified the government’s charges by returning “not guilty” verdicts in case after case … no matter the evidence.
Neighbors who dared to vote to convict fellow neighbors of moon shining ran the risk of having their barns burned down … or worse. Soon the arrests ceased.
In a recent segment on 60 Minutes, veteran newsman Steve Kroft took an in-depth look at the use of marijuana in Colorado, where voters legalized it for medical purposes back in 2000.
In spite of the change in Colorado law, the state, however, is still in conflict with federal statues, which places pot in the same category as heroin. But the feds don’t attempt to move in, make arrests, and shut down the numerous clinics throughout the state that dispense a wide variety of marijuana products.
Kroft interviewed Boulder County District attorney Stan Garnett who said “… it's virtually impossible to impanel a jury on a marijuana case here, let alone get a conviction.
“What we deal with is what prosecutors call jury nullification, where juries say, ‘I know what the law is, but I'm not going to follow it.’ This community has made it very clear that criminal enforcement of marijuana is not something they want me to spend any time on.”
So, in spite of federal laws against marijuana, folks in Colorado found a way to bring the huge underground marijuana economy above ground, turn it into a profitable (and taxable) industry, while ceasing the criminalization of citizens.
And guess what? Their world didn’t come to an end as some law enforcement types predicted.
The question is, could what the folks have accomplished in Colorado be replicated in other states — even those states where no medial marijuana laws are on the books — if jurors simply refused to convict fellow citizens for pot possession?
Could jury nullification be a back-door way to finally bring the nightmare of the so-called “war on drugs” (which really has turned out to be a war on people) to an end?
Our Founding Fathers intended for both grand and petite juries to act as bulwarks against heavy-handed, unnecessary and tyrannical government intrusion into citizens’ lives … and what can be more unnecessarily intrusive than being arrested and prosecuted for smoking weed?
During the early years of the Republic, jurors felt it was their civic duty to protect their fellow citizens from unwarranted prosecutions, and the system worked well. Grand juries routinely refused to indict fellow citizens on picayune charges and the country was better off for it.
However, over time, government turned the grand jury into a prosecutorial rubber stamp. At trial, judges routinely instruct juries on what they are allowed to consider during deliberations: Only guilt or innocence, not the fairness of the law.
But an organization known as the Fully Informed Jury Association has argued for years that jurors have a right to determine for themselves which laws are just and which are corrupt, and to vote to convict or acquit based on that determination—a position strenuously opposed by virtually all law enforcement.
Indeed, in the last few years more than a few people in America have been arrested and charged with a felony for informing fellow citizens on their nullification right when serving on a jury.
Nonetheless, if citizens — lovers of the Constitution — quietly took matters into their own capable hands when serving on juries we could begin to put an end to our 40-year nightmare
And not one moment too soon.
Editors Note: This is the first of a series of Viewpoints by our contributors analyzing the impact of the 2012 elections on criminal justice policy.
Mansfield Frazier serves as the executive director of Neighborhood Solutions, Inc.in Cleveland.. His column can currently be seen weekly on CoolCleveland.com and The Cleveland Leader. He also occasionally contributes to The Daily Beast. Frazier is the co-publisher of Reentry Advocate, a magazine that currently goes into all Ohio prisons, select prisons in Michigan, and the Federal Bureau of Prisons. He welcomes reader comments.