It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?” 

That’s a fair question. It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas [pdf], among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the “problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.

1. Court precedents say jurors have no right to nullify. Well, yes, that is undeniable. But that’s like someone saying in 1950 that court precedents tell us that “separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution. I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way). Judges do remove jurors from time to time, but there is no punishment. At least not yet.

2. Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’ ” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution. The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough. Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification. Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” C.F. Adams, “The Works of John Adams,” 253–255 (1856)(emphasis added).

3. Jury nullification undermines the rule of law. This is simply another variation of objection #2 above. There is a logical fallacy to this objection. Jury nullification is assumed to be improper–so it undermines “the law.” It is like saying a presidential pardon undermines the “rule of law.” But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases). This is the way in which to understand jury nullification. The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about. Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases. Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.

Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases. But that article has revived a debate that we should all welcome. For much more on this subject, go here, here, here, and here.