TV writers endorse jury nullification

What happens when you spend years writing about gritty life in an old-line city like Baltimore, and the tribulations visited on everyday people by the prohibition of certain disfavored intoxicants? If you're smart, you turn against the war on drugs and defect to the opposition. Five television writers, Ed Burns, Dennis Lehane, George Pelecanos, Richard Price and David Simon, for The Wire, HBO's acclaimed crime drama, penned an OpEd for Time magazine denouncing drug laws.

[F]or five seasons, we answered lamely, offering arguments about economic priorities or drug policy, debating theoreticals within our tangled little drama. We were storytellers, not advocates; we ducked the question as best we could.

Yet this war grinds on, flooding our prisons, devouring resources, turning city neighborhoods into free-fire zones. To what end? State and federal prisons are packed with victims of the drug conflict. A new report by the Pew Center shows that 1 of every 100 adults in the U.S. — and 1 in 15 black men over 18 — is currently incarcerated. That's the world's highest rate of imprisonment.

Just as important, the authors announced their own plans for undermining prohibitionist efforts. And they call on readers to join them.

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.

I've written often about both the immorality and the failures of efforts to criminalize people's politically incorrect taste in cocktails. I've also mentioned jury nullification -- the right of jurors to judge the laws as well as the facts, and to render a "not guilty" verdict even in defiance of the law if they believe the law to be unjust or improperly applied.

But I don't have the reach of Time magazine or of TV writers; it's a pleasure to see new names join the fight, and lend their stature to the cause.

Jury nullification has enormous potential as a powerful tool for defanging the government's efforts to enforce many of its more obnoxious and intrusive laws. There's also evidence that the tactic is in wider use than is often credited. In 1999, the Washington Post wrote:

The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries. For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location. Some local courts in California, for example, have reported more than 20 percent of trials ending in hung juries. Federal criminal cases in Washington, D.C., averaged 15 percent hung juries in 1996 (the most recent year for which data were available), three times the rate in 1991.

A hung jury is simply one in which the 12 men and women around the table disagree over whether to convict or acquit. But judges, lawyers and others who study the phenomenon suspect that more and more differences are erupting not over the evidence in these cases, but over whether the law being broken is fair.

Very little has appeared in the popular press since that article about jury nullification, but I suspect that's no accident. If juries are rebelling in increasing numbers, as the Post suggested, it's unlikely that judges and prosecutors want to advertise the fact, and further encourage opponents of various intrusive and oppressive laws to take their battles into the courtrooms. Many advocates of jury nullification lament the supposed failure of their efforts to take root in the public imagination. I suspect that they're underrating their success. I think nullification has become fairly widespread, and the powers-that-be are desperate to downplay the threat.

I hope I'm right. And I hope The Wire writers help to spur interest in a powerful tool for hobbling government efforts to continue the brutal and oppressive drug war, as well as other laws that violate individual rights and offend jurors' consciences.