While the last episode of The Wire may not have wrapped up quite as cleanly as some closure-loving commentators would have liked, the final act of the writers-captured not on the little screen but in the pages of Time magazine-was a stunning and brazen act of courage.
In the magazine last week, David Simon and his staff take dead aim at this country’s war on drugs and conclude that “[i]f 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.” Citing the legendary example of John Peter Zenger , they declare jury nullification in drug cases to be an act of righteous civil disobedience.
The problem is that in taking their pledge to nullify, the authors have gently finessed a rather difficult and practical point. In order to acquit or hang a jury, one has to get on that jury, and the only way to do that is, well, to lie about one’s intentions. This is no small omission. Many people will take comfort in the Zenger example, but far fewer will be willing to intentionally mislead a prosecutor or federal judge who has asked them (under oath) a direct question. But without the lie there can be no nullification because without the lie, prosecutors will strike you, judges will excuse you and defense attorneys will watch weeping as you sulk back to the central jury room with “civil case” stamped on your jury card.
The unfortunate truth is that jury selection in drug cases around the country increasingly resembles the kind of ” death qualification ” that capital juries go through. So common is the revulsion to our misguided drug war that judges and prosecutors routinely ask jurors if they have a principled objection to it, following up with questions specifically designed to expose anyone who would have a moral or political objection to the theory or practice of our war on drugs. Avoiding disclosure often takes more than just failing to raise one’s hand in response to a general question. More and more, specific jurors who prosecutors suspect for one reason or another may harbor anti-drug way sympathies are directly queried about their views making withholding look very much like outright deception.
The problem with all of this, of course, is that in the end, more and more juries are comprised not of a fair cross-section of the population, but rather by conservative folks who have no compunction about convicting someone of a drug crime regardless of the eventual sentence. And generally speaking those same jurors are more likely to view the evidence in ways that are favorable to the government in a drug prosecution, increasing the likelihood of conviction.
In the end, taking the pledge that Mr. Simon proposes may be a wonderful thing if your goal is merely to raise awareness of the terrible injustices perpetuated everyday in drug cases around the country. But if you really want to set some people free, if called down to the courthouse, a more moderate position (or at least a bit of existential trickery) will be a more effective approach.
Of course the true ideologues may be able to look a judge or prosecutor in the face and claim they’ll convict when they won’t, but this is far harder in practice than it seems in theory. There is something about the majesty of the process that makes lying difficult. The solution though is simple, if a bit odd. Don’t decide yet. Make no pledges you’ll feel the need to disclose, insist that you will listen fairly to all the evidence presented, tell them honestly that you care passionately about the law, and that you’ll withhold decision until you’ve heard the entire case. Get yourself on that jury. But when closing arguments are through and the judge has instructed you on the law, do precisely as Mr. Simon urges: “think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren’t fictional.”