Prioritizing Public Safety Over Applying Outdated Drug Policy

By Rehman Bhalesha

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
• Ceasefire in the war on marijuana in Texas? Trial by jury and jury nullification by Gilbert G. Garcia, a board certified criminal lawyer and a member of The National Organization for the Reform of Marijuana Laws

The desire for public safety is a force influencing far-reaching legal decisions; the highest court in the country often uses safety as a rationale to reduce restrictions on law enforcement officers to question, search and seize individuals. Public safety is also a concern in the minds of average people serving in jury trials — people who deliberate on the cases that affect their peers. In fact, the concern for public safety may be a reason why some juries choose not to support marijuana prohibition penalties.

One of the ways marijuana criminalization detracts from public safety is by shifting limited law enforcement resources away from violent crime and toward drug crime. As Neill Franklin, a 33-year police veteran, pointed out, when the police shifted their focus from combating violent crimes to dealing with drug crimes in the past four decades, the rate of murders that were solved rapidly decreased across the nation. In 1963, before police intensified their fight against illegal drugs, police were able to solve 91 percent of murders. By 2007, when the war on drugs was in full swing, that rate had dropped to 61 percent, despite dramatic advances in forensic sciences that greatly improve murder investigations. The war on drugs is largely a war on marijuana. According to an original analysis by the American Civil Liberties Union, marijuana arrests account for the majority of all drug arrests in this country. Most marijuana arrests, as the ACLU’s analysis shows, are for simple possession.

Some juries may also recognize marijuana criminalization hurts public safety by taking away an individual’s option to substitute alcohol with marijuana, which scientists are finding to be a safer alternative. Though researchers have long been trying to figure out whether marijuana legalization would lead to more alcohol consumption — since the substances are possibly complementary — or if it would actually reduce alcohol use — since marijuana could substitute for alcohol — new research points to an answer. In findings published in the Journal of Policy Analysis and Management, researchers discovered marijuana use generally serves as a safer substitute for alcohol consumption. They concluded that marijuana legalization in Colorado and Washington state will lead to less overall alcohol consumption and consequently reduce the social harms of alcohol use. These findings are visible in many states that have modernized their marijuana laws. For example, the researchers discovered that states that legalized medical marijuana saw a decrease in beer sales and a drop in heavy drinking. This discovery is consistent with a prior study showing that states that legalized medical marijuana had a 13 percent drop in alcohol-related traffic fatalities. As objective fact checkers have shown, marijuana is safer than alcohol. On average, marijuana is 100 times less toxic than alcohol. Scientists have not found a single instance of death caused by marijuana use.

Juries on marijuana possession cases may also realize marijuana prohibition threatens public safety by preventing patients in need of medical marijuana from legally acquiring such medicine. If these patients do not turn to illegal sources for marijuana, they may resort to pharmaceuticals, which physicians reveal may be more addictive and deadly as well as less effective than marijuana. Even over-the-counter pain-relieving drugs may be more dangerous than the plant in question. Dr. Sanjay Gupta’s investigation into medical marijuana use found that for some patients the plant is safer and more effective than common prescription painkillers like oxycodone and dilaudid. Dr. David Walters’ testimony to the Illinois Senate also noted that many prescription drugs are less efficient, more prone to abuse and overdose, and more mentally impairing than marijuana. Leslie Iversen, a professor of pharmacology at the University of Oxford, has found even aspirin and related steroidal anti-inflammatory compounds to be more destructive than marijuana, due to their tendency to cause catastrophic gastric bleeding. Scientists relate pharmaceuticals to the highest numbers of drug overdose deaths.

Whether persuading law enforcement to focus on violent crime rather than drug crime, challenging a law that prohibits less destructive substitutes for alcohol, or shunning a policy preventing patients from acquiring a substance safer than pharmaceuticals, through jury nullification jurors may be prioritizing public safety over applying outdated drug laws. Texas lawmakers should acknowledge that because of their refusal to modernize marijuana laws, jurors charged with representing local communities have to correct the laws that unjustly jeopardize public safety.

Rehman Bhalesha has a B.A. in government from The University of Texas at Austin and is completing a Juris Doctor at South Texas College of Law, where he was a recipient of the dean’s Merit Scholarship. As a law student, Bhalesha proposed and helped establish a collaboration between the Baker Institute and South Texas College of Law to draft model legislation regarding drug policy. He has also worked as an appellate intern with the Fort Bend district attorney’s office and is currently a research assistant at South Texas College of Law.

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.