Creators of The Wire: "We'd Nullify"


A pretty bold statement in Time magazine from the show's head writers, Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David Simon.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional.

Regular readers of reason can think back to very real names like Kathryn Johnston, Isaac Singletary, Daniel Castillo, Tarika Wilson, or Jarrod Shivers. Or for that matter, any of these.

The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process. Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant's guilt or innocence, explicitly instructing that they aren't to judge the justness or morality of the law itself.

One of the most significant policies drug reformers could get enacted would be to work Congress and state legislatures to pass legislation protecting and preserving the rights of jurors to nullify—or better yet, to even force courts to notify them of that right before deliberation.