Why Not Nullify?
"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." So say
the writers of The Wire
. Radley Balko likes
the sentiment, but has a practical concern: "[J]udges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process." He suggests laws that would force
courts to inform jurors of their right to acquit no matter what the evidence says, if they think the law is unjust or immoral. (Which most drugs laws certainly are.)
Is that a good idea? Back during Prohibition, juries nullified alcohol-control laws "possibly as often as 60 percent of the time." But the practice has a more depraved history too, as when Southern white jurors could barely stifle a yawn anytime a pale-skinned defendant was accused of killing a black person. Since the late 1960s, though, courts have employed all sorts of strategies
to prevent nullification, though they obviously can't ban it outright. Admittedly, the fact that Robert Bork deemeds nullification
a "pernicious practice" makes me vastly more receptive to the idea.