What if they held a drug war and nobody showed up?
Last week's jury selection in Missoula County District Court didn't go quite as planned. The Montana court was preparing to prosecute, as a felony, the possession of 1/16th of an ounce of marijuana. But the jurors balked:
The tiny amount of marijuana police found while searching Touray Cornell’s home on April 23 became a huge issue for some members of the jury panel. No, they said, one after the other. No way would they convict somebody for having a 16th of an ounce. In fact, one juror wondered why the county was wasting time and money prosecuting the case at all, said a flummoxed Deputy Missoula County Attorney Andrew Paul. District Judge Dusty Deschamps took a quick poll as to who might agree. Of the 27 potential jurors before him, maybe five raised their hands. A couple of others had already been excused because of their philosophical objections. “I thought, ‘Geez, I don’t know if we can seat a jury,’ ” said Deschamps, who called a recess. And he didn’t. During the recess, Paul and defense attorney Martin Elison worked out a plea agreement. That was on Thursday. On Friday, Cornell entered an Alford plea, in which he didn’t admit guilt. He briefly held his infant daughter in his manacled hands, and walked smiling out of the courtroom.
Their act has been misleadingly termed "jury nullification." I can only assume that the term was an attempt to stop people from imitating them. Although I'm not a lawyer, it seems pretty clear that these people aren't nullifiers -- they are conscientious objectors to the drug war.
Here's the difference. In jury nullification, jurors purposefully reach a verdict that runs against the evidence. The object is to frustrate a law or an application of law that they don't like. Nullification is a rare maneuver and a risky one for those invovled -- doing so with premeditation may require, among other things, violating your oath as a juror.
The Missoula jurors, however, simply refused to serve. They violated no oaths and did nothing illegal. As anyone who has ever had jury duty knows, potential jurors are screened before the trial. They are asked careful questions about possible biases or conflicts of interest. The system wants people like this not to serve, and frankly, they shouldn't.
During jury selection, questions like "Could you impartially hear testimony from a priest?" or "Could you convict if it meant the possibility of capital punishment?" are common. If jurors have any reservations, they are allowed, even encouraged, to step aside. The system is stronger, not weaker, as a result.
Unlike jury nullification, it's not a civil or even a moral infraction to note one's biases and be removed. The courts might or might not find another panel to fulfill your jury service, but either way, life goes on. (Some potential jurors show up, get rejected, and just go home. Better this than a biased jury.)
When I had jury duty a couple of years ago, the potential jurors were asked a blanket question -- as I recall, it went something like, "Do you know of any reason why you might not be able to serve impartially?"
I had one. I work for the Cato Institute, a libertarian think tank that has opposed the war on drugs since its founding. As readers may know, I share that position rather strongly. Not yet knowing the issues of the case, I stood up.
The judge asked me to approach the bench -- less scary than it sounds, as it turned out -- and I told him: I could not vote to convict anyone for a nonviolent drug offense, because I believe our laws against recreational drugs are wrong.
I was prepared to give him the usual speech -- Drug abuse is a public health problem, not a criminal one. Addicts are sick, but locking up sick people is unconscionable, and it certainly doesn't help them get any better. Most of the time, drug sentences are worse than whatever the drugs themselves might do. Law enforcement wastes its time on this, while murders, rapes, and thefts go unpunished. All of this is shockingly wrong to me. I try to see the other side of every issue, but here, on this issue, I'm unable to look at things in any other way.
The speech wasn't necessary, and I didn't need to defend myself. The judge told me that the drug laws weren't at issue in the case, and they weren't. (It turned out to be an attempted murder, something I am more than happy to see prosecuted.) But if it had been a drug case, I would have been off the panel, as simple as that.
The message here is also very simple. If you oppose the prosecution of minor, nonviolent drug offenses, speak up. Speak up at the polls. Speak up in the media. Speak up especially when you are selected for a jury. Let the system know that we don't all consent to these laws. If you're like me, and if your conscience says no, say something. Nothing requires you to be a cog in the system, so don't be one.
Sooner or later, the system will notice.