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November 27, 2006

More Costa

I ended yesterday's entry by noting that although the  possibility of jury nullification (JN) had been created in the Costa case, it certainly didn't happen. To which I would add that until there is a level of popular outrage against the drug war that's at least comparable to the antipathy towards the war in raq that finally surfaced on November 7, the drug war has little to fear from JN. For one thing, it's a concept that's poorly understood by the public. For another, it's opposed on an almost visceral basis by lawyers or all stripes; perhaps because it so directly threatens their professional image.

Finally, as a practical matter, the successful implementation of JN in any given case requires that at least one or two determined jurors be prepared to hold out; thus preventing the others from following the judge's instructions (which in federal drug trials will always be to convict) for as long as it takes to either hang the jury or- even less likely- defy the judge by unanimously voting for acquittal. That Costa's jury was given the case on the day before Thanksgiving points out some of JN's obvious problems.

That leaves reversal by a higher court as the main concern presented by federal trials to drug warriors charged with defending their unscientific and illegitimate policy. One way to appreciate how little they have to fear from public opinion is that although the drug war is just as unlikely to be won as the war in Iraq, and public has known that for a long time, its repudiation as policy seems much further off. The reason for the dichotomy is simple: the bodies of dead GIs may come home in the middle of the night and their caskets aren't photographed, but they are still counted as victims. Most victims of the drug war, on the other hand, remain both unknown and incounted; even the most obvious, those enmeshed in our system of 'justice,' have been so successfully labelled criminals and druggies that fear of them is now a reason for becoming even tougher of drug crime.

In the next entry I'll discuss the skimpy history of federal marijuana prosecutions post 215, and offer several reasons why I think their reluctance to prosecute was so abruptly reversed by the Raich decision in June 2005.


Posted by tjeffo at November 27, 2006 06:41 PM