If You Are a Potential Juror, Do Not Read This Post

Writing in The New York Times, George Washington University law professor Paul Butler, a former federal prosecutor, defends jury nullification as a response to drug prohibition and other unjust laws:

If you are ever on a jury in a marijuana case, I recommend that you vote "not guilty"—even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer….

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn't think he could find enough jurors to hear the case. 

Butler notes that the power of the jury to judge the law as well as the facts has a long and venerable pedigree, defended by the likes of John Adams and John Hancock, although it is understandably unpopular with judges and prosecutors. In fact, federal prosecutors argue that simply talking about this power is a crime if the message is aimed at potential jurors. Butler cites the case of Julian P. Heicklen, the activist who was indicted last February for distributing leaflets about jury rights outside courthouses. The prosecutors in that case argue that "advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred"—meaning that Butler himself is guilty of "jury tampering," since he has been "recommending nullification for nonviolent drug cases since 1995—in such forums as The Yale Law Journal, '60 Minutes' and YouTube." Not surprisingly, Butler takes issue with this reading of the law:

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as "a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse," is not only unconstitutional but unpatriotic. 

Brian Doherty profiled Heicklen in the June issue of Reason and has been following his case here. Last December I noted the Montana marijuana case that Butler mentions. More on jury nullification here.