If a juror believes a defendant is guilty of breaking the law, but believes also that the law itself is not just, she has the right to vote with her conscience and not with the law.
A single juror has the ability to acquit a defendant in a trial for any reason. Even if the juror believes the defendant is guilty. This is called jury nullification. This is not a loophole. Nor is it illegal. But it’s a secret and it shouldn’t be.
With that said, let’s begin.
A cursory review of prison statistics illustrates the nightmare that is African Americans’ experience with our criminal “justice” system. There are currently more than 7 million Americans caught up at some point in the prison system between probation, incarceration and parole. Incredibly, 40 percent of our prisoners are black even though African Americans comprise only 13 percent of the total U.S. population. I live in a state where that number is closer to 50 percent. All told, America has 25 percent of the world’s incarcerated population despite only having 5 percent of the world’s population. This makes the sheer number of blacks in the prison system today even more overwhelming.
If you think there’s something wrong with this picture, continue reading, as there’s something that you can do about it. If you think this is because black people commit crime at a higher rate than white people do, then there’s a special place for you in hell or, worse, Congress.
Half of the prisoners in the United States are serving time for non-violent drug-related charges and 80 percent of those charges are for possession. Advocates and activists throughout the nation are attempting to reverse this trend, as the mass incarceration of black men specifically has become an epidemic. Despite the best efforts of groups such as the NAACP and the ACLU to reverse the trend, the problem persists unabated with most feeling helpless to change the system in a meaningful way.
But something can be done. By understanding your rights as a citizen to participate in the legal system, change can occur. Simply performing a civic obligation and reporting for jury duty gives every American the ability to weigh in on this issue.
Few people who are arrested on drug possession charges ever make it to trial for two reasons. One is that most cases are settled with a plea deal that a defendant often learns of for the first time while standing in front of a judge. The court-appointed attorney is basically there just to explain the plea to the defendant. The second reason is that plea deals are often considerably more attractive than the potential of losing in a trial and being sentenced by a judge, who is obligated to hand down sentences in strict accordance with the law. In states with mandatory minimum sentencing requirements, the risks are enormous.
But for those rare cases that do make it to trial, most people would be surprised to know that the most powerful person in the room is not an attorney or even the judge, for that matter. It’s the juror. One dissenting juror has the ability to decide whether or not a defendant should be set free no matter how the facts are presented. If a juror believes a defendant is guilty of breaking the law, but believes also that the law itself is not just, she has the right to vote with her conscience and not with the law.
Whether or not a judge has an obligation to inform a jury of this right has been battled over for two and a half centuries. As it stands now, judges are not required to inform a jury of their right to nullify a verdict; therefore, most do not.
Intrigued? Incredulous? Inspired? If you are brave enough to defy injustice and provide the last line of sane defense in an insane world, it’s best to arm yourself with an understanding of how we arrived at this point in history and your constitutional right to turn the tide.
The Modern “Middle Passage”
In order to properly describe the extent to which our criminal justice system is inherently and overwhelmingly racist, we must learn to speak about it with a new language. The current language, inculcated into the population by the government and corporate media over several decades, includes phrases such as “tough on crime,” “zero tolerance,” and “three strikes.” This type of rhetoric has been delivered repeatedly and enthusiastically since President Ronald Reagan declared the official start to the War on Drugs in 1982. Thirty years and a billion episodes of Law & Order later, we are all fluent in the language of narcotics.
Unfortunately, most of us have turned a blind eye to the mass incarceration of young black men in America during this time. Most of us shrugged it off. Most of us have failed to comprehend the rise of the prison industrial complex. Most of us, but not all of us.
In her book, The New Jim Crow, Michelle Alexander speaks to both the sociological and institutional aspects of racism in the American legal system. Since its publication in 2010, her book has been gradually galvanizing members of the black community around the concept of incarceration as a new form of slavery. And because of the efforts of outspoken leaders such as Dr. Cornel West, tireless advocacy from grassroots drug and prison reform groups and the comprehensive analysis provided by Alexander, the nation is beginning to speak about incarceration with a new language.
Rev. Roger Williams, pastor of the First Baptist Church in Glen Cove, N.Y., and president of the local NAACP chapter, says the reaction in the black community has been “multifaceted.” He says Alexander’s book has certainly inspired debate, with some putting “all of the onus on the black community,” others who have a “balanced understanding,” and “then you have those who feel like white folks are coming for you.” In every case, says Williams, “it’s almost like shoveling smoke trying to get a consensus, but it’s certainly stirring leadership.”
Fred Brewington, a prominent New York attorney and activist, has lectured frequently on this issue and even given sermons on The New Jim Crow, as he lives it every day in the criminal justice system.
“Unfortunately, the system has become the norm,” says Brewington. He shares Williams’ view that the book hasn’t necessarily filtered through the black community, but it has started to take root. “It’s not as though everyone is waking up and saying, ‘Where are all our African American men?’” But he calls Alexander’s book a “wonderful compilation of information that is there for the use of front-line advocates.”
Alexander’s book boldly equates the effects of today’s punitive drug laws to those of the Jim Crow laws that legalized segregation and unequal treatment under the law with respect to race. Specifically, she addresses the mass incarceration of black men in America under draconian drug statutes. For those who believe her analogy is a stretch, Alexander has a powerful weapon at her disposal: statistics.
Our modern journey to enslavement begins in 1972 in the years immediately following stark gains made during the Civil Rights movement. The prison population was around 350,000 as compared to 2.2 million people today. In 1972, violent crime had already peaked and was on the decline in the United States. The reason for the peak during the prior years was arguably the result of the Baby Boomers being between 18 and 25 years old — the prime adolescent years of criminal agitation — mixed with civil unrest and protests during the Vietnam era.
But by the mid to late ’70s, conscription had formally ended, the Boomers were more worried about getting jobs than getting high and violent crime was precipitously declining. As Alexander notes in The New Jim Crow, the National Advisory Commission on Criminal Justice Standards and Goals recommended as early as 1973, “no new institutions for adults should be built and existing institutions for juveniles should be closed.”
Sociologists and criminologists had come to realize that punitive punishments and long-term sentences had little to no positive impact on crime statistics and that rehabilitation and treatment were more appropriate measures for all but the most violent criminals. Plus, the numbers were on their side. Despite a difficult economy, violent crime was falling — not only in the United States, but also around the globe. Given these circumstances, it was somewhat surprising that President Reagan declared an official “War on Drugs” in 1982, only two years into his first term. Surprising also because America didn’t really have a drug problem in 1982.
Ask enough people from a black neighborhood where “crack” came from, and it won’t take long for someone to tell you it was the CIA. This point has been hotly debated for years. But the fact remains that the period during which cocaine first began flooding the streets of American cities coincides precisely with the start of CIA operations in Central America, specifically Nicaragua. In the early 1980s guerrilla fighters in Nicaragua were suddenly flush with cash from American drug dealers — cash used to purchase American weapons in their fight against the Sandinistas, the Marxist government that aligned itself with Cuba.
In 1982, the U.S. Attorney General drafted a Memorandum of Understanding to the CIA establishing the United States’ interest in overthrowing the Sandinista government in Nicaragua; the same year the Reagan administration declared the War on Drugs. But crack cocaine had yet to reach the streets. It would take another three years for crack to begin appearing in the black neighborhoods; crack derived from cocaine funneled from Nicaragua. Call it a conspiracy or an incredible coincidence, but the timing is irrefutable. In the meantime, however, the Reagan administration didn’t sit idly by and wait for crack to become an epidemic. It had laws to change and a paradigm to shift. It didn’t take long.
Despite the downward trend of violent crime and no evidence yet of a rampant drug problem, the Reagan administration increased anti-drug funding for the FBI, Department of Defense and the Drug Enforcement Administration tenfold between 1980 and 1984; almost the exact size of the funding decrease to federal drug treatment, rehabilitation and education programs. Cocaine funneled from Central America hit the streets in 1985 in the form of crack and was deemed an epidemic by the media by 1986. By the end of 1986 the country had already adopted mandatory minimum sentencing requirements for drug-related felonies.
In less than five years a crisis had been fully manufactured in our cities and federal, state and local law enforcement agencies were given incentives in the form of military arsenals and cash to increase the number of arrests. Police departments were suddenly competing for cash grants, assault weapons and air power. The government’s sudden change of course and willingness to fund anything related to drug crimes also created an opportunity for private industry, which was only too anxious to jump into the fray.
In 1983, Corrections Corporation of America (CCA), the first privately held prison corporation, was formed. Despite the historically low prison population, the government’s drug war prompted private industry to suddenly jump into the incarceration game. Today, CCA is a nearly $2 billion (and growing) corporation with more than 90,000 “beds” under its control.
Allowing for privatization of our prisons is one of the more egregious examples of how divorced our policymakers are from common sense in this country. The goal of a private penal corporation is to profit from high and extended rates of “occupancy.” (CCA literally speaks in these terms as though it was part of the hospitality industry.) The private prison lobby in America has pressured lawmakers over the years to maintain harsh minimum sentencing requirements as corporations have little financial incentive to encourage rehabilitation of prisoners. As far as the private prison industry is concerned, the only useful felon is one who is incarcerated, not reformed.
Reagan’s “war” saw a clean population getting hooked on drugs. During this “war,” rehabilitation was replaced with recidivism. Treatment was abandoned in favor of solitary confinement. Education was upended by “stop and frisk.” Prevention was sacrificed in the name of incarceration. The result? Half of all inmates today are in prison for drug-related crimes, of which 80 percent are related to possession of marijuana. To say the black community bore the brunt of this war is an understatement. To wit, more black American men are in the prison system today than there were slaves just prior to the Civil War. Present the statistics any way you please. There’s no pretty picture to paint. Black America is once again in chains.
Each year, hundreds of thousands of “stop-and-frisk” acts are performed in black neighborhoods. They are rarely, if ever, conducted in white neighborhoods, office complexes or college campuses. Nevertheless, politicians point to the success of “stop and frisk” in the absolute number of people arrested for carrying drugs instead of the miniscule percentage of people found carrying drugs who were searched. I’m no mathematician, but logic would dictate that if you only stop and search people in black neighborhoods, then when you find drugs on someone the chances are that person is going to be black.
The reasoning behind “stop and frisk” is so specious and the process itself so unconstitutional it defies logic. And yet, it’s generally upheld in court. In 2012, 533,000 people were subjected to “stop and frisk” by the NYPD, according to the NY Civil Liberties Union (NYCLU). Once again, even though blacks comprise 25 percent of the city’s population, they made up 55 percent of those who were stopped and frisked.
Many officers are unhappy with the “stop-and-frisk” protocol but are caught up in the nightmare due to pressure that comes from the top. Recently, the New York Daily News reported on a case where NYPD Officer Pedro Serrano testified against the department after taping his supervisor, Deputy Inspector Christopher McCormack, telling him to target “male blacks. And I told you at roll call, and I have no problem [to] tell you this, male blacks 14 to 21.” These kinds of orders are not unique. They stem from quotas that are often handed down from the police brass. And officers such as Serrano who speak out against these practices are often shunned by their colleagues.
But wrestling with one’s conscience and struggling to maintain police quotas is nothing compared to the hell that awaits a young black man swept up into the web of “stop and frisk.” Once in court, the odds are stacked against him. In a recent conversation, Brewington described the harrowing the process of being caught by the police and ushered through the “system.”
Those with a prior arrest who are brought in on possession charges may meet an attorney such as Brewington in the holding cell. They’re actually one of the lucky ones, as a staggering number of accused felons make it all the way to sentencing in front of a judge without ever having spoken to an attorney. A far cry from what happens on TV. Brewington describes the encounter as something less than a conversation, as he advises his client to answer simply “yes” or “no” because everyone around him has an incentive to use his words against him in their own plea deal.
Time is of the essence, as he is typically carrying an offer from the D.A. that is set to expire quickly. Whether they want to go free is not a question he will raise. They’re in the system now. The only question is, how long? Risking an appearance in front of a jury means risking a much longer sentence.
“The fear is that you’re going to get a jury that’s really not of your peers,” says Brewington, who is loath to advise a jury trial. He says many of the young men he encounters “have not acquired the requisite skills to appear sympathetic” in front of a jury “that looks at you as though you must have done something wrong.”
The confusing whirlwind of circumstances between being frisked by law enforcement officials and accepting a plea deal is just the start, a piece of the legacy from Reagan’s “War on Drugs.”
But if Ronald Reagan was responsible for putting so many black people behind bars, it was Bill Clinton who was most responsible for keeping them there. In an effort to make Democrats appear “tough on crime,” the Clinton administration institutionalized punitive measures outside of the system, such as lifetime bans on some forms of welfare including access to food stamps, government jobs and public housing. Parolees, now branded as felons for life, were suddenly unable to leave their district while being forbidden from returning home, accessing food and gaining employment in the public sector.
“If the initiative is to eradicate the drug trade,” says Williams, the opposite occurred. “What you’re doing is inducing the necessary anger on the inside that will be accentuated when they come back. And the only thing that will accept them back is the game.”
Throughout the ’90s, recidivism spiked and parolees came face to face with President Clinton’s most punitive anti-crime measures — the “Three Strikes” rule and mandatory minimums. Under Clinton, life sentences were mandated for any third-time felon, or felon convicted of multiple counts, regardless of the nature or severity of the crime. Mandatory minimum sentences for even the lowest level drug offenders were implemented as outrage finally began to creep into American consciousness. Black churches and organizations were up in arms. Some judges resigned. Alexander even recounts the story of a notoriously harsh judge who wept when forced to hand down a 10-year sentence “for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.”
Beyond the practical hindrances a felon faces in attempting to re-enter society, there’s an emotional burden and stigma that is carried forever; a burden that extends to the family as well. Dr. Jeffrey Reynolds, president of the Long Island Council on Alcoholism and Drug Dependence, runs programs to counsel children of incarcerated parents. While their parents are on the inside, the kids “suffer guilt, shame and isolation,” says Reynolds, adding, “Seventy percent of kids of incarcerated parents, without intervention, wind up incarcerated themselves.” But he speaks to the effectiveness of intervention, saying, “None of our kids have been incarcerated. With a little bit of help and a little bit of energy, it makes a huge difference.”
Even those who are released carry with them the shame of having been on the inside and the painful memories that accompany incarceration. Horrifically, more than 70,000 prisoners are raped every year. Additionally, tens of thousands of prisoners are locked in solitary confinement at any given time in the United States, a punishment usually employed by totalitarian regimes that was all but outlawed in the United States prior to Reagan’s War on Drugs and the emergence of the modern prison industrial complex.
Nullification is a “Juror’s Prerogative”
“Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”
— Henry David Thoreau, Civil Disobedience
You don’t have to agree that the “War on Drugs” was an intentional war on the poor, disenfranchised people of color in this country to understand that this was the result. Thinking, feeling people know these laws must be changed. And while we, as citizens, must indeed protest, engage in civil disobedience and write to Congress, there is more that can be done and it begins with understanding your rights.
In a New York Times op-ed last year, Alexander floated a question raised to her by a woman named Susan Burton. Her question was simple, but brilliant: What if there was a movement to convince “thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out?” Her supposition was that this would theoretically crash the criminal justice system. She’s right. But the risk would be enormous given the potential and very legal retribution the system provides for.
But if the black community is examining this option and weighing the risks of such a strategy, it is incumbent upon the white liberal community to do the same on the opposite side of the equation. In this scenario, African Americans have everything to lose and white people have nothing to lose. So to possess this knowledge, have nothing to lose and still refuse to be an “upstander” is to be silently complicit in modern-day slavery.
Most white Americans have only a casual relationship with our legal system. Their understanding of what is just and what is legal generally comes from watching television crime shows and movies. This is why most people have the impression that the sole responsibility of a juror is to deliver a verdict based upon legal facts and that his or her personal feelings of fairness and justice cannot be considered.
This is patently false.
If you manage to get by “voir dire,” the process of questioning jurors to sit for a particular trial, and are fortunate enough to be selected, you can participate in a revolutionary movement. You can hang a jury without ever having to explain why. Jurors such as this are referred to as “stealth jurors.” Quiet activists who are guided by conscience not convention, or as Fred Brewington says, “The jury becomes the advocate for society.”
But first, you have to be in the position to do so. The key to getting through voir dire is to answer honestly without revealing anything ideologically. There is a science to voir dire and cases are often determined by how adroit an attorney is at selecting a jury. So remember these simple facts:
1) Less is more: You cannot misrepresent yourself by exercising restraint during voir dire.
2) You are not the one on trial.
3) Your goal is to get on that jury.
Serving on a jury is tedious, time-consuming and may even be financially detrimental. There is nothing romantic about the inner-workings of our legal system, no matter how glorified it is on television. Moreover, only a handful of Americans will actually be selected for a trial that involves drug possession charges for the reasons I stated in the opening of this piece. The goal here is to make enough people aware that the reason our system was designed to have trials decided by a “jury of one’s peers” was to prevent unjust laws from unfairly condemning citizens to incarceration or any form of punishment.
Like I said, the chance of being picked for a jury that involves drug possession charges is extremely remote. But our ability to disseminate a simple message of civil obedience to encourage defiance in the face of injustice has never been greater.
“America in Chains” Illustration by Jon Moreno
“Dissenting Juror” Illustration by Jon Sasala
“Hang The Jury” Video by Rashed Mian