A Dope Decision

I'd better link this before someone starts a rumor that libertarians are no longer obsessed with pot smoking: the Supremes have decided not to revisit a lower court ruling that the federal government can't strip doctors of their licenses for recommending medical marijuana to patients.

Comments

[Patrick]

Seriously, how often do our friends at reason roll a doobie and pass it around the office?

[JSM]

Julian- Libertarians aren't obsessed with pot smoking, drug warriors are. We are obsessed with bringing reality to the war on drugs, beginning with something as harmless and medically beneficial as marijuana.

[Julia]

How do libertarians feel about gun control, late-term abortions, illegal immigration, charter schools, & freedom to practice religion? If conservatives reformed on the drug issue, could there be an Arnold+McClintock-sized supermajority?

[Andy]

On a related topic, has anybody here ever been on a jury where a person was charged with a drug offense. If so, what was the result? Or if you don't have first-hand experience, any 2nd or 3rd hand accounts of decriminilization jurors?

I assume that defense attournies are on the lookout for possible nullifiers, but I'm curious to know if anyone has slipped through the cracks.

[Warren]

The war on drugs IS the greatest evil we face. The war on terrorism may become so. (Just as the WOD is responsible for making drugs a far bigger problem, the WOT looks to do the same for terrorism.) The decision by the Supreme Court isn't progress, but it is a barrier to the strip mining of civil liberties the Bushies are currently wreaking upon us.

[R C Dean]

If conservatives reformed on the drug issue, could there be an Arnold+McClintock-sized supermajority?

Well, drugs and a few other things, maybe. I do think a lib-con coalition is more likely than a lib-lib coalition. The conservatives would only have to shift maybe half of their agenda. The liberals would have to move on more like 80% of theirs.

[James Merritt]

I served on a superior court trial jury once in Santa Cruz CA. The fellow on trial was a recent immigrant from Africa, accused of alcohol DUI. As best we the jury could figure out, the poor fellow had indeed been drinking, but at the time of his arrest, was only carefully going around the block in his girlfriend's neighborhood, trying to find a place to legally park his car, which had previously been parked in a questionable space. Because it was early in the morning on a more-or-less deserted street (except for the ever watchful cops, of course), he was pulled over for the notorious "cracked tail-light." We never were sure whether this was a case of "Driving While Black" or not, but the officers testified that there was nothing apparently wrong with his driving; there was no traffic and no pedestrians on the street to be menaced; he seemed fairly able to pass the field sobriety test; but he did have the smell of alcohol on his breath, at which point the cops decided to haul him in for testing, which determined that he was way over the .08 California blood alcohol limit. (This was after waiting long enough for any recently-imbibed beverages to work their way into his bloodstream, according to the chronology presented to us.)

Because the cops' own testimony indicated that the defendant was driving in a safe -- even careful -- way, we could not convict him of reckless driving. On the other hand, state law says the jury is automatically authorized to convict on the basis of Blood-Alcohol-Content measurements. There seemed to be a lot of pressure to convict on those purely technical grounds, and several of us were not happy with what seemed the unfair mechanical nature of the law. I am proud that we hung on the technical charge, and acquitted on the general charge (basically saying that, at the time the guy was pulled over, we didn't see that he was endangering anyone or behaving in a reckless manner).

I do recall that during jury qualification, many questions were asked to try to filter out nullifiers. There wasn't anyone on the jury who wouldn't have convicted someone who was driving unsafely, impaired; nobody (including me) had any objections to laws preventing operation of dangerous machinery on the public roads while impaired. But the prosecution didn't present enough evidence to show that the accused WAS impaired, except the technical measurement, which we weren't unanimously ready to rubber-stamp.

I feel justice was done, and I'd like to think we would have turned in a similarly humane verdict in a pot possession case, all things being equal. I hope the prosecution got the clear message that you don't waste the time of twelve citizens unless a crime really has been committed, or at least unless the defendant truly presented a clear and present danger. As a group, we definitely did not seem to want to become cogs in the Politically Incorrect Substances War.

[Andy]

James, thanks for the story. Interesting stuff, and a difficult issue of whether to convict a basically harmless drunk driver.

[Ayatollah Usoe]

Well, I went through the voir dire selection process for a jury. To remove nullifiers, two questions were asked, but unlike all the other questions, the potential jurors were told not to respond. If the juror had an "issue" with the questions, they were to answer the two questions in private, to only the judge and two attorneys. These two questions removed nearly 70% of the jury pool.

They were "Have you ever been arrested for drugs?" and "Has a close friend or family member ever been arrested for drugs."

These two questions, aimed to remove nullifiers, removed nearly all the potential jurors as well.

[Mona]

I have seriously considered that a primary route to ending prohibition would be for those of us who see the immorality and gross impracticality of the war on (people who use some)drugs to start a massive campaign explaining jury nullification. If we reached only the denizens of the Internet, that would be a good and possibly sufficient start.

Generally, defense attorneys are not allowed to inform the jury that nullification is an option: the only way to reach them is to permeate the public pool of jurors with this possibility. Your average Jane and Joe Sixpack may approve of the drug laws until they are confronted with a parent or college kid facing a mandatory 10-20 for the non-violent "crime" of selling a mood altering substance to a willing adult buyer(s). But they are given to understand, by the prosecutor and the judge's instructions, that they must -- if the elements of the crime are proven beyond a reasonable doubt -- vote to convict. Unless they know about nullification, jurors often feel they have no choice, even when it feels unjust to send a non-violent citizen to prison for a decade or two.

And yeah, I get so very weary of the notion that as a libertarian opposed to the WOD, I must spend all day rolling joints and snorting white stuff.My grandsons would be surprised to learn these are an interest of mine, since when they see me I'm all about Bob the Builder 'puter games while sipping Crytal Light.

[Mona]

I have seriously considered that a primary route to ending prohibition would be for those of us who see the immorality and gross impracticality of the war on (people who use some)drugs to start a massive campaign explaining jury nullification. If we reached only the denizens of the Internet, that would be a good and possibly sufficient start.

Generally, defense attorneys are not allowed to inform the jury that nullification is an option: the only way to reach them is to permeate the public pool of jurors with this possibility. Your average Jane and Joe Sixpack may approve of the drug laws until they are confronted with a parent or college kid facing a mandatory 10-20 for the non-violent "crime" of selling a mood altering substance to a willing adult buyer(s). But they are given to understand, by the prosecutor and the judge's instructions, that they must -- if the elements of the crime are proven beyond a reasonable doubt -- vote to convict. Unless they know about nullification, jurors often feel they have no choice, even when it feels unjust to send a non-violent citizen to prison for a decade or two.

And yeah, I get so very weary of the notion that as a libertarian opposed to the WOD, I must spend all day rolling joints and snorting white stuff.My grandsons would be surprised to learn these are an interest of mine, since when they see me I'm all about Bob the Builder 'puter games while sipping Crytal Light.

[David Tomlin]

There's been at least one book written on how to be a "stealth juror", to get seated on a jury with the intention of being a nullifier. The publisher is one of several that has me on their mailing list, but I don't recall which one.

[thoreau]

I have to say that I'm uncomfortable with jury nullification.

I'm not saying I'm definitely against it, just that I am undecided. Yes, I object to the thought of imprisoning somebody under an unjust law. But I'm also uncomfortable about 12 people deciding "We don't need the rule of law, we ARE the law." I know, that's a rather negative spin to put on it.

It's easy for us to say "We won't comply with this law because it's unjust." But that can start us down a slippery slope. I know, the problem with all slippery slope arguments is that some slopes aren't really that slippery, and it may very well be that there's nothing wrong with driving a spike into the ice at the top of the slope and staying right there. But consider this:

Suppose somebody forges insurance records to get medical treatment, and then says "I did it because I didn't have any way to pay for health care. Health care is a basic human right." And say we have a jury of lefties who decide "yeah, free health care should be a right, so we won't convict this person of fraud [in a criminal case] nor will we order the person to pay the doctor [in a civil case]." Or they at least get enough lefties to hang the jury.

I know, juries nullifying a bad law (e.g. drug laws) are doing a good thing and juries nullifying a good law (e.g. laws against fraud) are doing a bad thing. We're right and they're wrong. And lefties who would condone fraud to get free health care are (probably) rare (for now), but then again drug legalizers are also (probably) rare (for now).

And I suppose the argument "Let this be decided in the legislative arena" is prone to the same problem: Legislators make good laws (e.g. laws against fraud) and bad laws (e.g. drug laws), so there's no guarantee that the legislative arena will deliver a solution.

The question is, which body has the greater legitimacy to decide on the law? Legislatures or juries?

Put it another way: A lot of people here get upset when courts overturn laws. If a judge can't do it, why can a jury?

Finally, I'm not saying I'm actually 100% against nullification. I'm saying I have qualms, and I'd like to toss these hard questions out to get feedback.

[Anonymous]

When I was called for jury service about six years ago, the judge basically asked the entire jury pool if anyone had a problem with basing their decision on his interpretation of the law. A bit stunned, I said nothing.

The defendant was accused of first-degree assault and "armed criminal action" (double jeopardy, anyone?) for firing a rifle at the cops when they went to his house and executed a no-knock search warrant for methamphetamine, etc. at 1:00 AM.

Then the judge took a break and came back later to release us all since he had a cold and wasn't sure he'd be able to continue for the expected lenght of the trial (three days).

While the judge was out, I couldn't help but ask myself, "Where were the drugs?" I mean, the cops break down the guy's front door in the middle of the night looking for meth and the only thing they can charge him with is shooting at intruders who don't announce that they are LEOs with a warrant?

[Andy]

Thoreau, I share your concerns on this issue. But it's absolutely horrendous that anybody would be obligated by law to punish someone against their conscience. For me to send someone to jail when I believe they have committed no real crime is *the* worst case scenario. Maybe I'm just naturally ideological, but this sort of abstract argument carries more weight for me than all the "practical consequences" in the world.

And speaking of practical consequences... doesn't the old dictim that it's "better to send 1,000 guilty men free than to punish 1 innocent person" apply here?

Anyway, I guess we've reached a somewhat fair compromise on this issue if we allow jury nullification but also allow jury selection by the lawyers.

And the bigger truth is that the war on the war on drugs is best fought in the legislature rather than the courtroom.

[7.62]

thoreau

I'll take a shot at it.

We are guaranteed a right to a trial by our peers. The framers decided that this was an appropriate thing to do. By being judged by peers what is being insured is that the judgment will be given in the context of societal norms, or be reflective of the values we as a group decide are appropriate. This makes inherent sense to me. Am I behaving in a way that is acceptable to the people around me in a general sense? Sort of a "when in Rome" thing.

You make a good argument in your "Lefty jury" example. However if we do believe, or some believe, as the lefties on your jury do, then please let's allow that view to be represented. I think it's that representative cross section that the framers were looking for.

But going back to my previous post, it is extremely disturbing to filter juries as specifically as is done by both the defense and the prosecution. These juries become non- representative of society as a whole.

I certainly wouldn't want to face a charge where the deck had been stacked against me by the prosecution. And this is exactly what the "belief in legalization" question does.

Your thoughts?

7.62

[7.62]

Andy-

The war on the war should be fought on every available front.

7.62

[fyodor]

Andy,

I believe Laura Kriho was hit with contempt charges. I'm more sure her "crime" was to not *volunteer* her beliefs on drug legalization. She answered every question truthfully. But her case certainly does reflect the dangers of lying about one's beliefs on jury nullification.

[Andy]

7.62, yeah, the drug war should be fought on every possible front. All I meant was that some fronts have more potential than others. Because lawyers are looking out for nullifiers, the court system is a relatively innefective arena.

fyodor, I read another link from some here about her case, and it sure does look like you're correct. Thankfully, she was eventually acquitted. Her case comes down to what the facts were, and I'm certainly not the best judge of that at this point.

[Ken]

David,

That would be Loompanics Unlimited.

[digamma]

I do think a lib-con coalition is more likely than a lib-lib coalition. The conservatives would only have to shift maybe half of their agenda.

Does that "maybe half" include the part of the their agenda where they support import tariffs, restrictions on campaign speech, massive growth of federal involvement in education, and farm subsidies?

[Jean Bart]

Abortion should be an inviolable right; late term or not.

[JSM]

Anyone think that the attempt to weed out jury nullifiers is really a case of curbing civil liberties?

[Andy]

JSM, if so, then doesn't much of jury selection fall into the same category? And what specific question do they use to weed out nullifiers? Someone above mentioned questions that might weed out "personal experience bias" nullifiers (personal experience with drug arrests), but the questions mentioned wouldn't necessarily weed out ideological nullifiers.

[grizzly bear]

When I was called up for a federal case against a man for selling crack. The first question the prosecutor asked was "does anyone believe that drugs should be legalized?" I raised my hand, and was out of there fast enough to go have an early brunch.

[grizzly bear]

early brunch? it was damn near breakfast.

[tm]

Well, grizzly, I hope you had a bowl for breakfast.

[7.62]

Good morning all

About 2 years ago I was summoned for duty. It was a case where a gentleman had been arrested for possession and use while on the front porch of his home. Every potential juror was asked about his or her view on legalizing MJ. Anyone for legalization (I'd say about 40%) went home. In retrospect and next time I'll lie and be the Stealth juror. I was excused and went home. I followed up on the case afterward and found out that the gentleman had been convicted to spend six months in county jail.

I still feel guilty about this. Clearly this is not a "jury of peers" when almost half are excused because they don't agree with the state. I would recommend to anyone that they lie to correct the system if summoned in a case like this.

7.62

[Kevin Carson]

I don't know about anyone else, but I haven't smoked any of that stuff in over a decade. So my "obsession" isn't feathering my own nest, it's a matter of principle. Same thing with file-sharing: I've got a shitty dial-up connection, so it's not like I've got a vested interest in one side or the other.

Even people who don't care about pot one way or the other should be alarmed at the creeping jackbootism of local law enforcement brought about by the War on Drugs over the last twenty years: civil forfeiture, SWAT teams, interjurisdictional task forces, erosion of Fourth Amendment rights, rampant corruption and planting of evidence, and in general civilian law enforcement that views those it "protects and serves" the same way an army views an occupied enemy population. The explosion of organized crime isn't so great, either.

The reason is clear. For actual crimes, like assault, robbery, trespass, etc., there is an injured party who complains to the cops. But a victimless "crime" is a voluntary market transaction in which both parties are satisfied: no injured party to complain. So the only way to fight victimless crimes is by placing society as a whole under an increasingly intrusive surveillance network, and watching everybody to make sure we're not doing something we're not supposed to.

Oh, but I forgot: "If you're not doing anything wrong, you've got nothing to worry about."

[Garth]

I was under the impression that most minor drug offenses (possession) rarely went to a jury trial. Am I mistaken? Anyone know?

[Ayatollah Usoe]

Well, we could all visit FIJA.org, the Fully Informed Jury Association's site. But we could also face the fate of Laura Kriho, imprisoned for jury nullification. http://thewinds.arcsnet.net/archive/government/jury_nullification08-98.html

[hey]

hardly any cases go to trial...

either people are destitute and have nothing to lose, or else have sufficient resources to fight when they don't get a sufficiently good deal...

anyone in the middle (and anyone with a decent deal) pleads out and gets on with things...

even a few years in the jug is better than 400k in legal expenses and 10 years in...

of course, if everyone refused to plead, the state couldn't win, and would have to focus on the serious crimes... but its prisoner dilemma time, except with millions of players... there ain't no stable state except everybody pleads

[Andy]

Laura Kriho was charged with perjury when asked about her legal history. She was eventually acquitted.

[Garth]

Hey,

Thanks... this has been my impression....

[joe]

Does the Emmitt Till case count as jury nullification?

[Gologor Matthew]

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