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Function of Juries & Jury Nullification | 18 Feb 2014

-Are Unjust Laws Enforceable? Understanding Jury Nullification


Jury BoxWith the introduction of New Hampshire’s HB 1452 in the legislature this year, jury nullification is once again in the news in New Hampshire. Jeff Woodburn discusses it in the March edition of New Hampshire Magazine.

Understanding Jury Nullification

The times are changing. Polls consistently show a growing majority of people support marijuana legalization. The New Hampshire House of Representatives recently made history by becoming the first legislative body in the country to endorse legalizing possession of small amounts of cannabis. Colorado and Washington did the same thing by voter referendum. But don’t light up that joint quite yet. The bill faces another House vote, a tough fight in the Senate and a veto by Gov. Maggie Hassan.

This leaves New Hampshire in a bit of legal quandary. Is growing popular support running headlong into the region’s toughest marijuana prohibition laws? It begs the basic question: Are widely unpopular laws enforceable?

The question is both theoretical and practical. Will growing grassroots support for changing cannabis laws have more influence over politicians or the judiciary? Will a new state law that permits explicit instruction to juries that they have the right to thumb their noses at the evidence if the law itself is unjust render the state’s marijuana possession laws meaningless? And, are these laws going to be heaped on the dump pile of unenforceable, antiquated laws that ban things like adultery?

One notably ridiculous point is made by Deputy Attorney General Ann Rice:

“The NH Legislature, not the jury,” Rice continued, “is responsible for establishing the law … And, once passed, there is a common understanding that the law will apply equally to all.”

This is particularly rich given data from The Sentencing Project indicating that New Hampshire incarcerates more than 9 times as many blacks as white and more than 3 times as many Hispanics as whites despite the fact that its population is less than 2% black or African American and only about 3% Hispanic or Latino.

Marc Mauer of The Sentencing Project explains how the law is not applied equally to all, LONG before questions of law ever reach a jury:

N.H. has low crime rate, but high rate for incarcerating minorities

The higher incarceration rate for minorities can stem from a number of factors, such as policy set by legislatures, stepped-up policing in communities and neighborhoods with large minority populations and decisions made by people in the criminal justice system, said Marc Mauer, executive director of the Sentencing Project.

“Broadly speaking, it’s often a mix of things like that,” he said.

Higher incarceration rates often are the results of economic factors rather than race or ethnicity, Mauer said.

For example, someone who committed a crime related to a drug problem, including crimes such as burglary where addiction is the underlying cause, is more likely to avoid jail if he’s enrolled in a drug treatment program. There are few such public programs available, Mauer said.

A middle-class family would be more likely to have the resources to pay for a private treatment center, Mauer said. A poor family without that option is likely to see a family member sent to jail instead, he said.

Perhaps that is why former prosecutor Professor Paul Butler of George Washington University Law School advocates jury nullification:

Former Prosecutor to Jurors: Nullify!

I learned jury nullification from the jurors of the District of Columbia. It was commonplace that if you had a young, black defendant charged with drug possession, DC jurors were not going to send them to jail. They didn’t want to send another black man to jail. When senior prosecutors first told us rookies about this, they would roll their eyes in exasperation. Like, here we are trying to improve their city, and they don’t have the sense to lock up all these cretins. (In the prosecutor’s office, that’s what we called the defendants: “cretins” and “douche bags.”) When I left the prosecutor’s office and started to teach, it was the thing I was the most interested in studying. From a scholarly perspective, I found that it’s a proud part of our constitutional tradition, that it’s perfectly legal and indeed was embraced by the framers as a way to protect people from too powerful law enforcement and too powerful prosecutors. It says that people from the community, not the government, should have the ultimate authority over what happens to a criminal defendant.