Drug law reform is no bedtime story

The man who illustrated the satirical hit book "Go the F**k to Sleep" has published a free booklet called "Jury Independence Illustrated" calling on Americans to challenge the war on drugs by acquitting those charged with possession.

Ricardo Cortes hopes the pamphlet will encourage adults called for jury duty in drug cases to vote to acquit, regardless of the evidence presented at trial. Cortes cites the precedent of John Zenger who, in 1734, published a letter critical of the colonial governor of New York and was charged with seditious libel. While Zenger didn't deny that he'd published the letter in violation of the law, the jury acquitted him because they found the law unjust.

This is how Cortes suggests everyday Americans fight back against the war on drugs. He's not the first person to push for acquittals. The call for jurors to automatically clear individuals charged with drugs caught a boost in 2008 when the writers behind the hit HBO drama The Wire penned a piece for TIME laying out their position on the issue:

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. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

In this manner, individuals opposed to current drug laws hope to needle the system into reform. Cortez's booklet puts the practice in heroic, even patriotic perspective, but there are a few problems with this approach, which might betray an ignorance of the criminal justice system.

First, if an entire panel of jurors votes to acquit a person who is clearly guilty, the judge can and likely will nullify the jury's verdict on the grounds that no reasonable jury could conclude that a man found with three hundred grams of heroine was not guilty of possessing said heroine. The judge could then proclaim a guilty verdict.

Second, if a single activist juror insists that the drug laws in a case are unjust and refuses to sign on to a guilty verdict despite eleven others who disagree, the jury is hung, and the judge will declare a mistrial. This means the same defendant, so valiantly defended by a single juror, will face trial again, potentially without an advocate in the box.

But the biggest problem with this approach to juror activism is the simple truth that, in the U.S., there are very few drug trials. Most people charged plead guilty. For those concerned about the impact of drug legislation on swelling prisons and bloated budgets, they ought to realize that those who go to jail are only rarely sent there by juries.

Here are the numbers for New York City:

• 10,502 people were arrested and charged with felony possession of a controlled substance as a top charge in the city in 2010.
• 7,438 plead guilty to the charge or to lesser charges.
• of those that went to trial all the way through to a verdict, 52 were acquitted. Twenty nine were found guilty.

These numbers are from the New York State Department of Criminal Justice Statistics and the Computerized Criminal History System.

It's important to note that these numbers do not track individual cases: The people who plead guilt in 2010 aren't the same folks arrested and charged that year, and those who got a verdict from a jury were likely arrested and charged over a year earlier.

Interestingly, the number of individuals in this charging category has dropped off significantly in the past three years: 13,369 were arrested in 2008; 12,496 in 2009; 10,502 in 2010.

Guilty please have likewise dropped: 9,082 in 2008; 8,667 in in 2009; 7,439 in 2010.

But the number of guilty verdicts and acquittals has barely moved. In sum, a few activist jurors disrupting a few drug trials might get some attention, but it might not gum up the system.

A different campaign approach might be much more effective: getting those charged with possession to demand a jury trial. The first thing it would do is back up the courts- by several years.

"It would come to screeching halt," said Jonathan Marks, a criminal defense lawyer in New York City. "There would be tremendous strains on the criminal justice system. It would be completely unworkable."

Second, it would make jury duty de rigueur for most of us registered voters. That would be for both trial jury duty and four-week grand jury duty. Productivity would drop as the need for jurors drew eligible candidates from their day jobs and forced them to endure the protocols of criminal court.

That might be the societal strain needed to get popular, political, and bureaucratic sentiment behind reform of the country's drug laws. It would quite literally force the system to choke on what it'd bitten into.

Of course, that would mean organizing the accused and charged into a broadly coordinated program of civil disobedience. It would mean asking those accused to risk lengthy periods of incarceration rather than plead guilty to lesser charges. The system currently survives as it does because of the plea bargain.

While advocating juror nullification may be a noble ideal for the anti-drug law crusaders, and a place from which to organize consensus against the current prohibition, it's far-fetched to think activists at a few trials will somehow impede the gears of the criminal justice system.