I have jury duty on July 2, and I can't wait. If I get put on a jury in a non-violent drug case, I'll vote "not guilty," based on my principles -- even if I think the defendant actually did it. As I report for jury duty just before July 4, I'll declare my independence from costly and ineffective punishment for non-violent offenders.
As a former federal prosecutor, I worked on scores of cases that helped keep the War on Drugs alive and drained tax dollars to finance an exploding prison population. I now know that the best way to send a loud and clear message for change in the criminal justice system is to use my constitutional power, as a juror, to "nullify."
Inner-cities across the nation, from the Bronx, NY, to Washington, D.C., are home to "million dollar" blocks -- neighborhoods where, on just one street, the government is spending that much money to lock up citizens. Now, during a time when we can least afford wasteful government spending, when President Obama has stated that locking up non-violent drug offenders is a "blind and counterproductive policy," some jurors are saying enough is enough.
Jury Nullification is perfectly legal and has a long history- indeed the framers of the Constitution intended jurors to serve as a check on bad prosecutions and ineffective laws. Northern jurors helped abolish slavery by refusing to convict people "guilty" of helping slaves escape. Nullification was also a factor in ending Prohibition, which locked up people for selling liquor, and created the same violent market and drive-by shootings (remember Al Capone?) that we now see for other illegal drugs.
The Supreme Court ruled about a century ago that jurors don't have to be told about jury nullification, so it's a secret power that all ordinary citizens possess. To this day, no juror has ever been punished for nullifying. The federal appeals court in Washington D.C. described nullification as "hard medicine," saying it was appropriate in special cases, but not for every day.
But the D.C. court made that ruling in 1973 -- long before the War on Drugs resulted in the greatest expansion of prison population in the history of the free world. There are now more Americans in prison for drug offenses alone than there were for every crime in 1973. If our criminal justice system ever needed hard medicine, it needs it now.
The War on Drugs has proven to be a colossal failure. It doesn't get dealers off the street because there are always new workers willing to enter this lucrative market. Punishment doesn't get people off drugs; treatment programs are more effective at getting addicts the medical care they need.
The main lesson that the 500,000 non-violent drug offenders are learning is prison is how to be a better criminal -- taught by the experienced murders, rapists, and armed robbers they're locked up with. My years as a federal prosecutor have made public safety my primary concern. One of the reasons I'll vote not guilty is to stop a non-violent drug offender from going to the state penitentiary -- finishing school for criminals.
Voting on principal in non-violent drug cases is part of a nationwide movement that is quickly gaining momentum. The TV series "The Wire" vividly depicted the havoc that the war on drugs has wrecked upon Baltimore. Last year the program's writers -- including David Simon, Richard Price and George Pelacanos -- said that their experience in Baltimore led them to one conclusion -- if they were ever on a jury in a drug case, they would vote to acquit.
Like all the old school civil rights activists who refused to convict those accused of helping slaves see their way to freedom and whose "creative disobedience" stopped legal segregation, new school jurors have the power to change bad drug policies that destroy communities. If selected for jury duty in a non-violent drug case, I will ask my fellow jurors if putting the defendant behind bars will make the community safer. I want to inspire a jury deliberation about justice as well as law.
Paul Butler is a law professor at George Washington University. He recently published "Let's Get Free: A Hip-Hop Theory of Justice" (The New Press).