As a former prosecutor, I think it sounds like many of the non-violent drug offenders whom I am responsible for locking up. I can’t take credit for all of the hundreds of thousands of people now in state and federal prisons for non-violent drug crimes but, as a Special Assistant United States Attorney in the District of Columbia, I prosecuted my share. Now, as a “recovering prosecutor,” I want to share a secret power with my fellow Americans --a power that ordinary people have-- that could help end the destructive “War on Drugs.”
The Fifth Amendment prohibits defendants from being tried for the same crime twice. This means that when a jury finds someone not guilty, there can never be a re-trial -- even if the judge disagrees with the jury’s verdict, or if there is compelling new evidence of guilt. The Supreme Court has ruled that this doctrine gives juries the power to nullify the law. If jurors believe the law is unjust, they don’t have to apply it. There is nothing that anyone can do to prevent jurors from nullifying -- under the Constitution, when it comes to acquittals, jurors have the last word.
Nullification works only in one direction -- in favor of acquittals. If a jury finds someone guilty, and there is compelling evidence that the person is innocent, judges have the power to overturn the jury’s conviction (that doesn’t happen a lot in the real world). Giving jurors more power to acquit is based on the constitutional principle that it’s better to let guilty people go free than to allow the innocent to be punished.
The idea that jurors should judge the law, as well as the facts, is a proud part of American history. High school students learn about famous examples of nullification, like the John Peter Zenger case. Zenger was an American revolutionary who was accused of criminal libel when he published statements critical of English rule of the colonies. He wasn’t just accused of this crime -- he was actually guilty! Zenger’s attorney conceded his guilt in his closing statement to the jury but said that the jury should decide whether the law itself was fair. The jury famously acquitted Zenger.
The Zenger case came to stand for the idea that American juries have the power to overturn unfair laws and defeat overzealous prosecutors. The concept that jurors decide justice became an important part of American jurisprudence. For about the first hundred years of our constitutional democracy, most courts endorsed this principle, and jurors were routinely instructed on their power to nullify.
Perhaps the most shining example of nullification occurred during the shameful time in US history when slavery was legal. People who helped slaves escape committed a federal crime -- violation of the Fugitive Slave Act. But [if it’s a shining example it’s not really a “problem” I think] when Northern jurors sat in judgment of these “criminals,” they would often acquit, even when the defendants admitted their guilt. Legal historians credit these cases with advancing the cause of abolition of slavery.
It wasn’t until the late 1800’s that some judges started to question jurors having all this power. The Industrial Revolution created big businesses that wanted the law to be more settled and predictable. The idea of ordinary citizens deciding justice suddenly seemed threatening. In 1895, in Sparf v. United States, the Supreme Court tried to clamp down on nullification. It declared that while nullification is a “physical power” that jurors have, they have no “moral right” to practice it. The Court then created this weird anomaly that is still the law today: jurors have the power to nullify, but defense attorneys can be barred from telling them about that power. Jurors have to learn about it outside the courtroom.
That’s where we come in. In my new book Let’s Get Free: A Hip-Hop Theory of Justice, (The New Press) I suggest that citizens be educated about nullification, and that they be encouraged to consider it in non-violent drug cases. Here’s the idea: as President Obama has stated, “The war on drugs has been a failure.” Obama specifically criticized “the blind and counterproductive warehousing of non-violent offenders.” Locking up so many non-violent offenders has lead to the United States having the highest incarceration rate in the history of the world. Indeed the US incarcerates more people for drug crimes than the European Union does for every crime -- and the EU has 200 million more people than the U.S.!
To protest this senseless and very expensive mass incarceration, I call for “Martin Luther King jurors.” They would engage in strategic jury nullification designed to safely reduce the number of people in prison for non-violent drug crimes, and to send the message that “we the people” ain’t gonna take it anymore. Like the “creative disobedience” that Martin Luther King used to advance civil rights, strategic nullification would be a powerful call for change.
My proposal is that Martin Luther King jurors vote “not guilty” in cases in which a defendant is accused of possessing drugs for his or her own use, or selling a small quantity of drugs to another consenting adult. In cases of violent crime, or selling drugs to minors, jurors should convict, if they are persuaded beyond a reasonable doubt that the defendant is guilty.
This strategic nullification is legal, and already proven to work. During Prohibition, when it was against the law to sell or manufacture liquor, jurors frequently nullified when people were charged with those crimes. Their actions were credited with helping end that “War on Liquor.” Martin Luther King jurors could have the same impact on the present War on Drugs.
Tell everyone you know about jury nullification. It’s legal, it’s powerful, and it could help bring about the change American criminal justice desperately needs.
Paul Butler is the Associate Dean for Faculty Development, and the Carville Dickinson Benson Research Professor, at George Washington University Law School. firstname.lastname@example.org
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