(Spoiler Alert, up to Hard Cases)
I really don’t know what to think about the Wire‘s writing staff’s brief for jury nullification in drug cases.
I agree with them on the merits; the drug war is an abysmal failure, even on its own terms. In some cases, the mission itself is flawed; there simply isn’t a case to be made that marijuana and ecstasy are more dangerous than alcohol or tobacco. With meth, cocaine, and heroin, of course, it gets more complicated. There’s an obvious public interest in reducing addiction to and usage of these drugs. The question is thus one of tactics: would it be more effective to jail drug users or to treat their addiction as a disease? It seems pretty clear that locking addicts up in a facility where drugs are, in all likelihood, still readily available and, if anything, more dangerously adulterated is a less effective means of reducing addiction than expanding rehabilitation programs, however flawed they may be. Moreover, a heroin industry that’s taxed, regulated, and run by reputable businesspeople is better than one run underground. A drug industry in which Wee-Bey Brice doesn’t have a job, in which Stringer Bell is a more effective executive than Avon Barksdale, in which the guy who takes night macroeconomics classes does better than the guy who spikes heroin with rat poison – that’s an improvement over what we have now. The reason Stringer’s saga is the brilliant tragedy Ross, Matt, Ezra, and Nick rightly dub it is because if it weren’t for drug prohibition, he’s be running a hedge fund or a Fortune 500 company, not the West Baltimore drug business. The whole world that David Simon and Ed Burns have created in The Wire disappears the minute drug legalization occurs. Avon and Prop Joe get pushed out of the market by the likes of Altria and Diageo, Omar loses his targets, McNulty and Greggs don’t have anyone to investigate, Maury Levy would lose his main clients, and Davis doesn’t have people to bribe him. Maybe the Greeks would survive in a reduced form, but that’s about it. And as much as I love the show (and like everyone else, I love it a lot), the world would be a better place were its plot pure fantasy.
So Simon, Burns, and co. get no complaints from me on their goal. It’s their means – jury nullification – that bugs me. Here’s the meat of their proposal:
If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun’s manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.
Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren’t fictional.
Think of Bodie? Think of Wallace? Well, Wallace was an accessory in the torture and murder of Brandon, Omar’s boyfriend, and when he expressed remorse and ensuing doubts about his role in the drug business, Bodie, along with Poot, shot him to death at String’s orders. “Save for a prosecution in which acts of violence or intended violence are alleged”? A cursory look at the show they write for would show that this is a mighty big caveat indeed. Up to where I am in the series (halfway through the second season) Bubbles and his protégé Johnny are just about the only drug users who don’t kill someone at some point in the series, and even they survive through theft.
I have no qualms with jury nullification. As Simon et al. say, it’s the responsibility of all citizens to resist unjust laws, and that includes drug prohibition. If I were to be placed on a jury assessing a charge of possession, then I’d vote to acquit. With most petty dealers acting alone, I’d do the same. But a Wallace? A Bodie? Even if the only charges were drug-related, I’d have to think twice, because I’ll know that at some point, in some way, they will have resorted to violence. That’s how the business works. Bodie doesn’t belong on the streets; after what he did to Wallace, he belongs in a cell.