Ceasefire in the War on Marijuana in Texas? Trial by Jury and Jury Nullification

By Gilbert G. Garcia

Jury nullification — when a jury disagrees with the law and acquits a defendant they believe to be guilty — has a long history in the United States of serving as a bellwether for social change on unpopular laws. There are numerous historical examples of juries nullifying laws that would later change due to vast public opposition. More recently, legal professionals have identified jury nullification verdicts in marijuana cases. This should not be surprising given society’s rapidly changing view of marijuana — support for legalization now polls at 58 percent nationally, and in Texas it polls equally well. In this installment of Baker Institute Viewpoints, experts discuss the question, “What does jury nullification of marijuana cases in Texas indicate about the possibility of marijuana legalization?”

Read other posts in this series:

• Can jurors hasten the legalization of cannabis? by Clay S. Conrad, an attorney and author of “Jury Nullification: The Evolution of a Doctrine”
• Jury nullification: Local option by William Martin, Ph.D., the Harry and Hazel Chavanne Senior Fellow in Religion and Public Policy at the Baker Institute, the Chavanne Emeritus Professor of Sociology at Rice University and the director of the institute’s Drug Policy Program.
• Prioritizing public safety over applying outdated drug policy by Rehman Bhalesha, research assistant at South Texas College of Law

In “The Federalist No. 83,” Alexander Hamilton considered trial by jury an essential safeguard against whimsical prosecutions of “pretended offences” and “arbitrary punishments upon arbitrary convictions” — what he regarded as “the great engines of judicial despotism.” Recent developments in the debate in Texas over marijuana would certainly please him.

The power of jury nullification, a staple of pre-Revolutionary American society, is emerging as a force to be reckoned with in the fight to reverse Texas’ costly and oppressive marijuana laws. “Jury nullification” occurs when a jury returns a verdict of “not guilty” despite its belief that a defendant is guilty. Essentially, jurors decide to nullify a law that they consider to be wrong. As public support for legalizing marijuana blossoms, Texas jurors are judging not only the defendants before them, but the law as well.

A recent survey by Public Policy Polling found that 58 percent of Texas voters support “changing Texas law to regulate and tax marijuana similarly to alcohol,” allowing licensed stores to sell marijuana to anyone 21 and older. The survey also indicates that 61 percent of voters support making it a civil, not criminal, offense to possess an ounce or less of marijuana for personal use, punishable by a fine of up to $100, but without jail time. Clearly, Texas voters are joining the nationwide wave of support for legalized marijuana.

Jurors have, in the past, resorted to jury nullification as a means of democratic expression against laws that ran counter to the popular will, such as the Alien and Sedition Acts, the Fugitive Slave Acts and alcohol Prohibition. Today, “mandatory minimum” sentences for low-level drug offenses like possession of marijuana (POM) are among the laws Americans consider excessive and disproportionately punitive.

Recognizing the “danger” apparent in jurors’ role in the trial process, prosecutors have responded in a myriad of ways to quell the practice of jury nullification. A 2011 article by The New York Times reports that a retired chemistry professor was charged with jury tampering “because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by.” According to the prosecutors responsible for this travesty, “advocacy of jury nullification, directed…to jurors, would be both criminal and without constitutional protection, no matter where it occurred.” The indictment against professor Julian P. Heicklen was dismissed by Judge Kimba M. Wood of the United States District Court for the Southern District of New York. While the state’s extreme reaction — trampling on our First Amendment freedom of speech — is most likely outside of the norm, it underscores the immense threat jury nullification poses to overzealous prosecutors who rely on the judicial system for income and notoriety.

Frequently, prosecutors offer reduced sentences to coerce minorities, the poor and the unrepresented to plead guilty in return for less severe punishment — thus eliminating the public’s input through a jury trial. This practice has brought about a shocking dearth of jury trials in misdemeanor POM cases in Texas. A prime example can be found in Montgomery County. According to the county clerk’s office, during the calendar years of 2012 and 2013 a total of 19,385 misdemeanor judgments were rendered — 2,706 of which dealt with misdemeanor POM offenses. Of these 2,706 POM judgments, only three (about one-tenth of 1 percent) were issued following a jury trial. These statistics highlight significant opportunities for those charged with POM in Texas. Additionally, they underscore the fact that prosecutors have already factored waning public opinion in their reluctance to take POM cases to trial.

Texas defendants charged with POM who demand a jury trial are putting their faith in documented public opinion. “Tough-on-crime,” overzealous prosecutors enforcing outdated and unjust marijuana laws that are unevenly administered could ultimately dash any hope of a bright future for many of those convicted of POM.

For those called to be jurors, it is imperative that they perform their civic duty, show up to jury trials and participate. Jurors have the inherent power to communicate to the legal establishment that continuing Texas’ “war on marijuana” lags woefully behind public opinion.

As Darryl K. Brown mentions in a scholarly paper on the subject, jurors possess a unique connection to the social climate, which inevitably affects the law’s application. In this capacity, it is essential that juries direct and monitor the institutions of law because individual cases do not fit a given rule equally, and our legal institutions tend to become detached from the realities of American culture.

Given our current system of drug laws — which heap disproportionate punishment upon defendants for POM — the “monitoring function” of jury nullification counteracts the enduring, holdout combatants in our failed war on marijuana. Public opinion is shifting in favor of decriminalizing — and eventually legalizing — marijuana. Defendants demanding a jury trial and jurors participating in the process are powerful forces in opposition to hard-line prosecutors, out-of-touch legislators and antiquated laws, which have robbed countless Texans of their liberty and freedom.

Gilbert G. Garcia is a board certified criminal lawyer in Conroe, Texas. He is a member of the State Bar of Texas Criminal Justice Section and Individual Rights & Responsibility Section; the Texas Board of Legal Specialization – Criminal Law; Texas Criminal Defense Lawyers Association; National Association of Criminal Defense Lawyers; College of the State Bar of Texas; The National College for DUI Defense, Inc.; and The National Organization for the Reform of Marijuana Laws (NORML).

This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.