The Montana Pot Rebellion and Jury Nullification

There’s an interesting story coming out of Montana involving what may be one of the most extreme cases of jury nullification I’ve ever heard of. In a criminal case involving possession of a small amount of marijuana, an entire jury panel refused (also seen here) to sit, each of them saying that they would never convict a defendant for possession of a fraction of an ounce of marijuana.

The defendant ended up pleading no contest, which is not an admission of guilt, even though it usually has the same practical effect.

This case raises some extremely interesting questions about marijuana laws, jury nullification, and just how responsive the courts have to be when public opinion is overwhelmingly opposed to a particular law.

First of all, public opinion seems to be shifting against criminalization of marijuana, or at least extremely harsh punishments for its possession and use. Obviously, this is a matter of personal opinion, policy preferences, and priorities, on which reasonable minds can differ.

The fact remains, however, that the public (at least in some parts of the U.S.) is firmly on the side of decriminalization of marijuana, or greatly reducing the criminal penalties for possession of the drug. So, what happens when the state calls on members of the public to serve on a jury where the defendant is charged with an act that the public doesn’t believe should be criminalized?

If you’ve ever been called to jury duty, you probably know the drill: the judge and the lawyers for both sides tell you that you have to render a verdict based solely on the evidence presented by each side, and the law as instructed by the judge. You’re told that you have to put your personal views on a particular law aside, and if you’re unable to, you will probably be dismissed from the jury pool.

However, what the court rarely tells the jury about is the practice of “jury nullification.” This is when a jury finds a defendant not guilty, even if they believe that the prosecution has proven all of the facts alleged against the defendant, because they disagree with the law the defendant broke.

The exact nature of jury nullification is sometimes hard for people to wrap their heads around. It’s not a special right of jurors codified in the constitution, or any other source of law, nor is it some secret cheat code.

It’s simply a by-product of the basic nature of the jury system: when a jury renders a verdict, the jurors don’t have to explain their reasoning. It’s that simple. U.S. courts have held that, while jury nullification isn’t exactly a “right” of jurors, jurors can never be punished for rendering an “incorrect” verdict, unless there is clear evidence of misconduct. In criminal cases, unlike civil cases, a court cannot under any circumstances direct a verdict against the defendant. This makes sense, because our constitutional right to a trial by jury in criminal cases wouldn’t mean much of the jury’s verdict could be easily overridden by the court.

This makes jury nullification an extremely powerful tool, and if juries consistently nullify certain types of criminal charges (charges for possession of a small amount of marijuana, for example), this can render an unpopular law ineffective. After a while, prosecutors start to focus on prosecuting other crimes, and with a law going completely un-enforced, lawmakers may reconsider its wisdom.

However, this case went a step further: during jury selection, every prospective juror stated that they would not convict the defendant, regardless of the evidence, to the point that an unbiased jury could not even be impaneled. I’ve never heard of anything like this happening before, and if you’re in Montana, and believe that marijuana should be decriminalized, you might take this as a sign that public opinion is shifting in your favor.

So, what do you do if you’re picked for jury duty and are strongly opposed to the law that the defendant is charged under? That’s actually not an easy decision. If you simply state your views on the law, the prosecution is almost certain to dismiss you as a juror. However, if you really want to be on the jury specifically for the purpose of nullifying the charges, you have to lie when asked about your ability to be impartial. Obviously, it’s best to simply tell the truth.

Interestingly, David Simon, the creator of The Wire, has called on Americans, when called to serve on juries in cases involving non-violent drug offenses, to vote for acquittal, regardless of the evidence. It’s unknown how effective this campaign has been, but it’s an interesting idea. But is it a good one?

Jury nullification is not without controversy. Some have argued that it amounts to mob rule, and undermines our unique brand of representative democracy (as opposed to direct democracy). On the other hand, if a person is called to serve in a jury – an important civic duty – they effectively become part of the criminal justice system, and can serve in the role of the justice system’s conscience, and can serve as a direct check against government overreaching. If the people are the “fourth branch” of government, jury nullification is their primary means of exercising their power.

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