Clay Conrad speaking to the
Downtown Houston Pachyderm Club, August 14, 2014
“Fully Informed Juries”
I’m here to speak about jury nullification, which is the act of a criminal trial jury in refusing to convict, in spite of proof of guilt, because they believe the law is unjust, or is being unjustly applied. Before I get into that I want to put some context behind it.
You are a young adult. You are at a party. Some people are smoking marijuana, some doing cocaine. Maybe you try some. The party is raided, everyone is arrested. Because of the cocaine, you face felony charges.
You get arrested and thrown in jail. Maybe beaten, maybe raped – more than half the rapes in America occur against male inmates. You get out, and your life as you knew it is over. You lose your student loans. Your name is on the internet, for all eternity. You lose your job. If you have children, they may be taken from you. You may lose your license as an accountant, nurse, lawyer, even hairdresser.
Now tell me: are you more, or less, likely to go forward and lead a productive life, pay lots of taxes, and be a contributing member of your community? Or are you now unemployable, damaged goods?
We have about 2.3 million adults incarcerated in this country, 59% for non-violent offenses, 92% of them male. Roughly 2% of the adult American male population is incarcerated. That number more than triples when you include those on probation, parole, or bond.
The American criminal justice system is broken. It makes us less safe; less free; less prosperous. We broke it because we asked too much of it. We have asked it to solve complex, persistent social problems, and that should never be its job. We have used it for social engineering, not simply social protection.
People categorize crimes differently. I’m going to refer to non-consensual and consensual crimes. The criminal justice system cannot control consensual crimes. Such laws do not work, never have, and never will.
I used to live in Hell’s Kitchen in New York City where I would see drug dealers on the street. Police came through occasionally and made a few arrests, and the dealers would move a few blocks. When the next neighborhood was raided, they’d move back. It was a joke.
The only way the law can control consensual behavior is to become so totalitarian, so intrusive, that it can peer into what every person is doing at all times. So why do we continue to use the criminal law in this way?
Does anyone know what a hammer mechanic is? Has anyone ever tried to fix a broken TV set or car by hitting it, trying to jar it into working? Hammer mechanic. No diagnosis, no understanding – just slap it and cross your fingers. But that never fixes anything – it just hides the problem for a bit. When confronted with a social problem, legislators pass laws, and the easiest way to address the problem is to throw people into cages. No diagnosis, no understanding. Just slap them in handcuffs and cross your fingers. Hammer mechanics.
We need better. Drug users and people, most drug dealers are drug users, and besides they only exist because drugs are illegal. Half of all Americans have used illegal drugs at some point. The law has made the problem worse.
Abolitionist Wendell Phillips once wrote that ‘law is nothing unless close behind it stands a warm, living public opinion.’ The American criminal justice system was designed to allow we, the people to have a say – as jurors.
Jurors have the option to, in Nancy Reagan’s words, “just say no” to injustice. Under English Common Law, jury nullification can be traced back at least to King Aethelred, 200 years before Magna Charta. Ever since John Peter Zenger was acquitted of seditious libel in 1735, juries on American shores have been refusing to convict technically guilty people because of conscientious objections to unjust laws. Today, we have degrees of homicide because during a period when all homicides were punished by hanging, juries were unwilling to convict those they did not believe deserved to be hung. Our courts recognize the Battered Spouse Syndrome because juries were unwilling to convict women who had killed their batterers after decades of horrific abuse. Prohibition ended because as many as 60% of juries chose to acquit the makers and distributors of alcoholic beverages – those we would today consider drug dealers. Juries can, and do, change laws.
All actors in the criminal justice system have discretion. Judges and prosecutors have discretion. Anyone who has ever gotten a warning instead of a ticket knows police officers have discretion. Jurors have discretion as well. If they believe a conviction would be unjust, even if the case has been proven, they have the discretion to say “not guilty.”
Jury nullification informs the way officials in the system exercise their discretion. Prosecutors become less willing to take such cases to trial, and start asking for the laws to be changed. Police become less willing to devote their resources to such cases. Judges begin to see such cases as a waste of time, not supported by the community. And legislators will respond and change the law, as they have done in the past.
The jury is a feedback mechanism. The jury can tell officials in the system how they are doing, what the public wants out of its criminal justice system – from a group of citizens who have participated in it. Without that feedback mechanism, we have no voice as citizens. We are drowned out by the private prison profiteers and the special interests who benefit from our current laws. Concerns for our society, our neighbors, is lost. The jury is the people’s body – and we, as jurors, have a far greater role than simply to sit down, shut up, and take orders.