Justice advocates have always known that laws can be unjust. Criminal law is often a tool used by the majority to oppress and control minorities and the less powerful.
Nowhere is this more evident than the War on Drugs, where the use of criminal law has resulted in the mass incarceration of the poor and people of color. (Writer Michelle Alexander calls this “The New Jim Crow.”)
Yet when a defendant of a victimless crime is on trial, jurors often face a moral dilemma. They are told by the judge to uphold the law even if this conflicts with their disapproval of the law (and their conscience). Here are some prominent cases that illustrate how jurors often struggle with this contradiction at the heart of the American jury system.
The Occupy Wall Street Protester
On St. Patrick’s Day 2012, Cecily McMillan attended a protest marking the six month anniversary of Occupy Wall Street. At some point during the protest, she elbowed Officer Grantley Bovell in the left eye. The police responded by aggressively subduing McMillan.
Prosecutors in McMillan’s trial argued that she struck Bovell to gain media attention. McMillan asserted that she felt someone fondling her and struck back in self-defense, not knowing Bovell was a cop. A large bruise was left on her chest, which the prosecution claims was self-inflicted. McMillan claims it was inflicted by Bovell.
Just last month, a jury convicted her of second-degree assault, a felony which could have landed her seven years in jail. The jury, believing that this was absurd, pleaded with the judge for a more lenient sentence. (They explained in a letter that probation with community service would be a more fitting punishment.)
It’s almost impossible to tell if the jury’s letter had any effect on the judge’s decision, but Judge Ronald Zweibel sentenced McMillan to 90 days in prison followed by five years’ probation.
The jury could have taken another course of action: jury nullification. Upon viewing the evidence, including photos of McMillan and videos of the protest, the jury could have decided that she acted in self-defense and declared her “not guilty.” This would have been a resounding statement that the jury would not accept the government’s arguments.
Writing a letter asking for leniency was a noble gesture on the jury’s part, but jury nullification would have been a more powerful tool. Moreover, there’s a chance Cecily McMillan might not have to spend the next five years of her life on probation.
Tim DeChristopher attended a Bureau of Land Management auction in December 2008. The BLM was holding the auction to sell oil and gas exploration rights in his home state of Utah.
DeChristopher posed as a bidder to win parcels of the land to protect it from future use. But when it became clear that he was a provocateur engaging in a political protest, he was arrested.
The government charged him with violation of the Federal Onshore Oil and Gas Leasing Reform Act and making false statements, which mandates up to ten years in prison and $750,000 in fines.
Rather than accept a plea deal, DeChristopher fought for his right to trial by jury. The judge in his case took extreme measures to ensure that the jury would be obedient to the court’s instructions, even interrogating jurors behind the scenes of the trial.
The jury ultimately found him guilty and the judge sentenced him to two years in prison.
DeChristopher’s case might have turned out differently if his lawyers could have informed the jury of a few crucial facts. For example, his attorneys were forbidden to reveal that the BLM auction was later declared illegal and overturned. Also, they could not mention that DeChristopher had raised enough money to make his initial payment to the BLM.
Explaining how easily the court could set its own terms, he stated that “[jurors] come into this majestic courtroom with the judge sitting up above them… with all this authority behind him, and saying, ‘It’s not your job to do what’s right and wrong.’ And people believed that.”
If more jurors know they may judge according to their consciences, defendants like DeChristopher would stand a better chance in court.
The Medical Marijuana Advocate
Ed Forchion, a.k.a. NJ WeedMan, was driving from California to New Jersey when he was pulled over for a traffic violation. Eventually, the police officer received a warrant to search Forchion’s car, where the officer discovered a pound of marijuana and $2,000 cash. He was arrested and charged with possession with intent to distribute.
The evidence was clearly against Forchion, who told the jury that he uses marijuana as medicine for his bone cancer. (California, where he lives some of the time, allows medical marijuana usage.) In his original trial, the jury found him guilty of marijuana possession. But the jury was unable to reach a verdict on the possession with intent to distribute charge.
On appeal, Forchion again explained he was a medical marijuana user. When he asked the jury to evaluate his case based on their opinions of the drug laws, he met the ire of Judge Charles Delehy. Delehy warned Forchion that he could be charged with contempt of court for mentioning jury nullification. He then instructed the jury to judge Forchion only according to the facts.
This story has a happy ending. After two hours of deliberations, the jury returned with a unanimous not guilty verdict.
NJ WeedMan’s case is a jury nullification success story. Recognizing that he was no threat to society, the jury opted to vote “not guilty” despite the overwhelming evidence.
Voting Your Conscience
Of course for every Cecily McMillan, Tim DeChristopher, or Ed Forchion — there are countless defendants facing overzealous criminal prosecution for their victimless crimes. They are disproportionately nonwhite and inadequately represented by overworked public defenders.
As Paul Butler explains, prosecutors will continue to compel plea bargains or advocate removing the jury from drug cases. Jury nullification is the people’s tool to defend minorities and the less powerful from misuse of the criminal law.
These defendants are counting on you to render a verdict in accordance with your conscience and your sense of justice. It is your right, your duty, and your obligation to do so.