We Got the Power!
“Panhandle Cocaine Case Stands Out” was the headline of the AP story. At first glance the case didn’t stand out at all. It had all the usual dreary trappings of a big cocaine bust. Snitching, spying, hidden cameras (one inside a private home) wiretaps, hidden microphones, secret court sessions, quick plea bargains, a fast grab of suspects’ property — nothing unusual there. Another sleazy victory for drug prohibition.
Apparently what stood out was the large number of prominent citizens caught face down in the muck. These were not the “usual suspects.” The victims of this bust included lawyers, business owners, a millionaire college philanthropist, a high school soccer coach, a probation officer, a contractor ― successful, influential citizens who took active part in community life.
These particular Drug War casualties are unusually respectable, but typically harmless and otherwise law abiding citizens. Although some are surely addicts, they can afford their addiction. They are not boosting car stereos to feed their habits. Most of them are cocaine users, not cocaine addicts. Their Cocaine use has harmed no one and hasn’t kept them from enjoying successful careers and active public lives in their community.
I don’t point this out to defend cocaine use. Snorting cocaine is the worst of habits. But arresting everyone with a bad habit wouldn’t leave many of us on the streets. In this case alone, scores of honest, productive citizens will be imprisoned and financially ruined because they have a bad habit. The entire undertaking will consume massive amounts of time, effort and treasure. There will be no public benefit.
To this you say, “Of course the War on Drugs is stupid, wasteful and unjust, but no politician is ever going to vote to legalize drugs.” And you’re right. You note with keen insight, “There are so many people benefiting from the War on Drugs that ending it will be nearly impossible.” And once again, you are correct. You ask, “Why are you wasting ink on this, O’Boyle? There’s nothing we can do about it.” But in this you are mistaken.
The growing numbers of Americans who recognize the waste, corruption and injustice of the War on Drugs are not helpless. The War on Drugs is a political war. Drug crimes are political crimes, not ethical crimes like robbery or murder.
To fix political problems we need political tools. A peek into the musty old tool box of history reveals the secret jack hammer of justice, a political institution that gives majestic power to the lowliest citizen — the jury.
Our Constitution guarantees the right to a public jury trial in all criminal matters. The jury has the unchallenged power to judge the law and the facts. The jury’s job is to deliver justice and protect citizens from the abuses of government. If a jury finds a defendant not guilty he may never be tried for the same offence again. A jury is not simply a committee who must obey a judge’s orders.
The power of juries to judge the law dates to at least 1670 and the trial of William Penn. Penn was accused of preaching a Quaker sermon. Preaching Quaker sermons was against the law. Penn had certainly broken the law. A jury refused to convict him, however, even when ordered to do so by a judge. The judge then locked the jurors up for days without food, water or chamber pots. The four most stubborn jurors spent nine weeks in the slammer.
England’s highest court released them and in doing so clearly stated that jury members could not be punished for their verdicts. Our most fundamental freedoms of religion, assembly and speech all trace back to this decision that juries may not be intimidated by the government.
The power of jury nullification carried over into our legal traditions when we won our independence. John Jay, the first Chief Justice of the U.S. Supreme Court, said in a decision in 1794: "The jury has a right to judge both the law as well as the fact in controversy."
Early in the 19th century judges routinely told juries of their power. In their role as the conscience of the community, juries often acted wisely and nobly in the face of unjust laws. Juries refused to convict those accused under the despotic Alien and Sedition Acts of the late 1700’s and later Northern juries released defendants who were caught illegally aiding fugitive slaves.
Judges and prosecutors over time came to resent the power of juries. It made their jobs more difficult. In an important case at the beginning of the 20th century, the Supreme Court decided there was no reason to inform the jury of its power, we would just assume they knew about it. Jurors still had the power to overrule bad laws, but now no one could mention it in court.
By the 1920’s juries were still well aware of their power, refusing to convict many charged under alcohol prohibition. Not long ago a jury declined to convict Dr. Kavorkian of murder. And more infamously, a jury let O.J. Simpson get away with killing his wife.
For the last 100 years judges have tried to hide this power from the American people, and most recently have actively tried to suppress it. Never the less, it takes just one juror voting his conscience to prevent an unjust conviction. You can’t be punished for any decision you make as a juror.
We don’t have to see your communities wrecked for the impossible dream of a drug free society. We are free citizens. We don’t have to take orders from anyone. Serve on a jury. Vote your conscience. Do the right thing. We got the power.