How The Drug War Might End
Dave Price
Jury nullification.
Jury nullification is a de facto and traditional power of juries, not normally disclosed to jurors by the system when they are instructed as to rights and duties. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition on retrying defendants after an acquittal; and the constitutional prohibition on retrying criminal defendants (see related topics res judicata and double jeopardy).This argues that the government must go to great lengths to ensure that use of illegal drugs is stigmatized so that juries do not nullify, and also hope that juries are generally unaware of their power to nullify.
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Nevertheless, there is little doubt as to the ability of a jury to nullify the law.
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Nullification in practice
Nullification has a mixed history in the United States. Jury nullification appeared in the pre-Civil War era when juries occasionally refused to convict for violations of the Fugitive Slave Act. However, during the Civil Rights era, all-white juries were known to refuse to convict white defendants for the murder of blacks.[13] During Prohibition, juries often nullified alcohol control laws,[14] possibly as often as 60% of the time.[15] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.
I don't think people should abuse illegal drugs, but the "cure" of curtailing our rights and using the State to violently incarcerate those who choose to ingest illegal drugs appears to be significantly worse than the disease.
UPDATE: Of relevance: Glenn Reynolds' essay on jury nullification. Very interesting story of how incredibly mistreated early juries were.
UPDATE: The Washington Times surely intends this as a slight against Obama, but it's one reason why I would have to give him serious consideration if he becomes the nominee (of course, he would also to have moderate significantly on issues like supporting the nascent democracy in Iraq). (via James Taranto, who also presumably intends it as a slight)
I understand the argument, and I have some sympathy with it, but I can't quite make myself call for decriminalizing drug use.
Meth is the bathtub gin of drugs. It exists only because of the prohibition on (some) safe amphetamines. And I mean safe in the sense that Bombay is safe gin compared to something cooked up in a bathtub.
illegalbad drugs just because they're legalised? Thats such a naive, academic POV. Are any of the inhalants illegal? No. Yet kids suffer brain damage from those, don't they? And what about so-called designer drugs? Again, not illegal, yet harm results. Meth wasn't illegal at the start, either - it became so because of the significant harm it caused - so the harm predated the souped-up legal 'problem' you're pinning it to.Such BS. I was just propositioned today by a crack whore, in a part of town wholly given over to it and swimming in disease. Would making it legal correct that? Hell no.
In some sense, it would: the crack whore wouldn't need to whore for crack if it was sold for the 1/1000th of the sale price that it costs to produce. Similarly, people committing petty crimes to get money for drugs would not need to.
The river of money flowing to drug kingpins would also dry up. The drug cartels are the biggest beneficiary of our drug laws (one of the many unintended consequences).
Of course, no one is arguing that making drugs legal would make them go away, just that making them illegal hasn't made them go away.
The default position should be that everything is legal, unless there are very good reasons to have the state use violence to stop people from having it.
But who, exactly, will make the "safe" versions of meth, heroin, crack, etc? Why would any responsible drug company open themselves up to the massive liability inherent in selling unregulated, powerful drugs to irresponsible, intoxicated people? They already get hammered nearly into oblivion by juries railing against safe and legal products. Do we indemnify the makers against civil and criminal liability? Just for formerly illegal drugs, but not for their therapeutic drugs? (And how many juries would go along with that?)
If we're going to seriously discuss drug legalization then it seems to me we'd have to begin by dismantling the prescription drug system. Allow drug companies, which could be just about anyone I guess, to sell all their wares over the counter to anyone who wants to buy them. I personally think that would be a disaster, taking us right back to the worst days of patent medicines, but I can't see how you can logically apply two different standards.
It can be used for good or for evil; more likely for evil. How do you think Al Capone would have fared in an Illinois State Court with this?
Why does the jury nullify? Principle or something more...simple?
Well, again, I have to point to Prohibition, which was in Al Capone's time. In fact, Capone was one of the biggest beneficiaries of Prohibition; it moved the alcohol industry into his purview.
Alphonse Gabriel Capone (January 17, 1899 – January 25, 1947), popularly known as Al Capone or Scarface, was an Italian American gangster who led a crime syndicate dedicated to the smuggling and bootlegging of liquor and other illegal activities during the Prohibition Era of the 1920s and 1930s.
http://en.wikipedia.org/wiki/Al_Capone
I'm not saying a drug dealer sho shoots 3 people should get off. But simple posession cases are a different matter.
Heroin is an interesting story all by itself, as it was first marketed, with considerable justification, as a less damaging alternative to morphine. Which, basically, it is, since it's as addictive as morphine but the effects are not as severe; the heroin addict is less impaired than the morphine addict, and more capable of functioning normally.
As an alcoholic I need to stay away from it all, but it's fascinating how the drugs we find most acceptable are actually the most damaging, and the ones we find least acceptable are the less dangerous. Odd, really.
Anyway, I can't quite figure out what I think of jury nullification. Part of me loves the idea and part of me hates it.
I' not sure it is a violation of a juror's oath to refuse to convict due to a firm belief in the injustice of the law in question- and bear in mind that in most juries a single reluctant juror cannot really prevent a conviction. In most cases a judge can interview the juror and replace him or her with an alternate. In order for jury nullification to work there must be a consensus amongst the jurors that the law is unjust and they will not convict otherwise the result will be a hung jury, in which case the state has the option of trying again.
They're not violating their oath, they're fulfilling it. Many of these laws violate the Fourth Amendment.
Mark,
You'd be surprised.
There's a common problem for drug addicts with time horizon: it is sometimes literally impossible for them consider consequences beyond their next dose, which is why they engage in high-risk activities like petty theft and whoring. Maintenance programs have shown that most addicts can, in fact, lead productive lives.
For instance, the man considered the father of modern surgery was a lifelong morphine addict. This was not known until 75 years after he died, as his will stipulated his diary should remain closed that long.
To put yourself in an addict's shoes, imagine you have not eaten for a week and the government has made all food illegal, so a hamburger now costs $100. And it's very difficult to get a regular job because your distress is quite evident. The result is inevitable.
Isn't that an apple-to-oranges comparison?
What dose of cocaine and heroine is less damaging than what dose of alcohol?
For instance, you have to ingest a lot more alcohol than cocaine or heroin in order to kill yourself, but people DO tend to ingest a lot more alcohol than cocaine or heroin (infinitely more, in my case).
Of course we all lose our tempers now and then. Dean freely admits to being imperfect in this regard, which is why regulars to this establishment will generally be cut more slack than people who we don't know very well.
Still: behave like an adult, or go find somewhere else to play. Thanks.