Tuesday, March 11, 2008


I haven't seen the final season of The Wire yet (I watch the TV series as it comes out on DVD) but I've found the first four seasons,besides saying a number of painful things about class in America, present the most compelling argument against our current drug prohibition regime I've ever encountered. And, the show does all this while being fantastic entertainment - a suspenseful police procedural overlaid with pitch-black gallows humor and enough tragic hubris to launch a dozen wailing Greek choruses. Now, the creators of The Wire have come out advocating jury nullification as a weapon to fight against the war on drugs.

While I recognize that jury nullification has had a troubled history (to say the least), I'm still incredibly pleased to see them take this stand. Of course, other commenters have pointed out that jury nullification isn't as simple as refusing to convict...many jurisdictions eliminate potential nullifiers in voire dire and committing perjury goes beyond nullification (though certainly one can argue, and I would agree, that it could still be justified). Nevertheless, even though the article doesn't go as far as suborning perjury, I think it does point out that citizens are not sheep, nor are individual actions meaningless.

Radley Balko suggested that laws making jury nullification explicit are a key first step in the fight against the War on Drugs, but frankly I think we'll see heroin sold by Walgreens before we'll see legislatures endorse jury nullification. While there are certainly more robust theoretical justifications for enforcing and obeying laws with which one disagrees, I believe the most common vulgar rationalization tends to follow a basic line of "I agree to respect the body of laws in its totality because I wish others to follow laws with which they disagree but I support." According to the common understanding, jury nullification violates this basic contract - I certainly believe jury nullification can be just, but I don't see how a legal system that includes the ability to selectively decline to enforce laws with which one disagrees can be perceived as fair by the majority of participants.

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