A Case for Jury Nullification

To further explain the “biased regard toward the impacts of different recreational drugs used by different cultural groups,” consider that both political parties, in order to appear “tough on crime,” upped the punishable amount for crack cocaine – favored by Black users – at 100 to 1 over the punishment amount for powder cocaine – favored by White users. “One would get the same punishment for possession of one gram of crack that one got for (100) grams of powder” (p. 38, Let’s Get Free, by Paul Butler). Also consider that alcohol use is tolerated far more than its effects would warrant due to its acceptance by the dominant culture. Tobacco use also has deadly effects, but biased cultural values are punishing certain vices more than others.

The “lock-em-up” culture that gets politicians elected has increased incarceration in the U.S. from 110 per 100,000 population before 1975 to the current rate of 751 per 100,000. Comparatively, Russia and Rwanda’s prisoner rates are 445 and 492, whereas Japan and Sweden’s rates are 49 and 60 per 100,000 population.

The “command-and-control” worldview simply isn’t working. It’s not racially equitable and it tragically fails in “equal protection.” The War on Drugs has not just failed, but these feel-good measures are actually making us less safe and should be subject to performance reviews to reduce government waste. There is a consensus among criminologists that increased incarceration may lower crime rates in the short run by about 20%. That is, until a “tipping point” at which over-incarceration disrupts families and the community’s social fabric, and actually leads to an increase in crime.

When felony convictions create unemployable people, when laws are seen as hypocritical, it fosters disrespect for the law. It is now a rite of Black manhood to be imprisoned by a criminal justice system that is itself criminal with its biased laws, biased policing, and extreme sentences. Righteous defiance combined with economic desperation and a deficit of drug rehabilitation service is a recipe for social disintegration.

Considering blatant disparities, the waste of public money, and human rights injustices, a campaign of “Jury Nullification” is warranted in-and-of-itself. The idea is well explained by Doug Linder (http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html) and in the existing campaigns at: http://www.jurybox.org/ and http://fija.org/. There is also a succinct appeal in the book “Let’s Get Free” by Paul Butler, a federal prosecutor who is intimately familiar with the law and racial concerns in this country.

Mr. Butler recommends that juries convict violent criminals if proven beyond a reasonable doubt, but that juries nullify prosecutions against small non-violent drug offenders by voting Not Guilty, in order to send a message to policy makers that the criminal justice system needs to be reformed – in the words of Paul Butler, “a system that defines too many activities as crimes, enforces its laws selectively, and incarcerates far too many of its citizens.”

Common citizens as jurors have the right to monkey-wrench prosecutions until disparities and injustices are resolved. In addition, this author is recommending continued monkey wrenching until valid proposals for other reforms are fairly considered.

One proposal, explained on the following “Police Reform” page, is in the form of a Letter to the Editor. With police culture stereotyped as having a command-and-control worldview, it strikes me as unproductive for reformers to try to command-and-control the police. My proposal suggests that excessive regulatory constraints on police protocol are ineffective and should be reviewed, and that risk pay would be a deterrent against violence toward police. At the same time, we must develop a voting mechanism to measure public satisfaction on police performance, giving the public a measured control on the purse strings of collective police salaries, say 10% up or down. This will reinforce and remind the police of their mission to protect and serve all the public. The idea is that peer pressure within the police ranks is the best proactive control to exercise restraint in the heat-of-the-moment.

We are in a period similar to the Prohibition era, but with racial overtones. It behooves any critic to contribute proposals for public scrutiny, proposals that may make us safer and arrest our slide toward a lawless and a reactionary police state. The Drug Reform page offers a framework proposal. There are other campaigns of “harm reduction” and creating safe consumption sites, all needing public pressure.

The Seattle Police, to their credit, have pioneered an effective harm reduction policy called LEAD (Law Enforcement Assisted Diversion). This cost-effective strategy is being tested in two Seattle neighborhoods, but this program needs to be expanded.