Take a tip from “The Wire” writers: Jurors should stand against ‘drug war’

The concept of jury nullification on these shores predates the founding of the American republic.

In fact, the tradition of a free press in this country might not exist today had it not been for a courageous group of men (yes, juries were all male in those days) who stood up to unjust British law and the tyranny of the crown and refused to convict a fearless newspaper publisher of libel.

That publisher was John Peter Zenger and the year was 1735.

A group of New York lawyers had come to Zenger and offered to bankroll his newspaper. In return, they would help furnish content. Those contributions swiftly began to pillory the local governor, appointed by King George III, for corruption.

The angry governor ordered his chief justice to have Zenger indicted for seditious libel. After two grand juries refused to indict Zenger, the governor had Zenger arrested on a bench warrant issued by two of his judges.

At trial, Zenger’s lawyer mounted a unique defense. The printed accusations were true, he said, and therefore could not be libelous. In amazingly convoluted logic, English law held at the time that the greater the truth, the greater the libel, so the judge warned that this defense was not acceptable.

But Zenger’s lawyer pressed on and the jury accepted his argument, acquitting Zenger and nullifying English law.

Two hundred and seventy-three years later, jury nullification is back in the headlines.

Six writers of “The Wire,” HBO’s widely acclaimed TV show shot in Baltimore, including creator David Simon, penned a piece for Time magazine’s March 17 issue asking citizens serving on juries to become conscientious objectors in the war on drugs.

Once again, they said, it’s time for juries to nullify laws they believe are immoral or wrongly applied to defendants.

America’s drug laws are badly flawed and often punish the wrong people, they said. Continuing to enforce them worsens our drug problem in many ways.

“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,” they wrote.

Putting their money where their mouth is, they added, “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 … .”

This is an especially compelling argument for the city of Baltimore, where a long-festering drug problem continues to overtax the police and the courts. Those of you with long memories may remember that in 1988, then-Mayor Kurt Schmoke called for a national debate on the efficacy of the so-called war on drugs. It was a good and courageous idea but it went nowhere because political leaders lacked the will to face the problem.

Twenty years later, it ought to be clear to anyone, except politicians still terrified of being labeled “soft on crime,” that we cannot arrest and imprison our way out of our drug problem. The call for jury nullification makes sense in this case.

That said, it’s not as easy as it sounds. Before being picked for a jury, you may be asked whether you have a principled objection to enforcing the law in question. A “yes” answer will probably mean that you won’t get a seat in the jury box.

But if you do, evaluate the evidence carefully and ask yourself if this is the time to take a stand.

Change often begins when a few people make a stand. Let’s make our stand here.