NORML to Challenge Mass. Pot Law

By Jeralyn, Section Crime Policy
Posted on Tue Mar 18, 2008 at 07:32:45 PM EST
Tags: marijuana reform (all tags)

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Back in September, I wrote about the arrest of NORML Founder Keith Stroup in Mass. at a rally for smoking a marijuana cigarette.

The case is headed to court Thursday morning. Keith and his co-defendant are challenging the constitutionality of the law criminalizing adult pot possession and use, and are requesting a jury nullification instruction:

[Their motion asks] the trial judge to inform the jury of their right to return a not-guilty verdict if, in their view, the defendants’ actions did not amount to criminal conduct.

This long-held traditional power of a jury — to refuse to convict if its members agree that such a conviction would create an injustice — is fundamental to the jury’s role as the bulwark of American individual liberty.

A copy of their motion to dismiss is available here. There will be a press conference at Boston's Batterymarch Conference Center after the hearing.

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NORML to Challenge Mass. Pot Law | 16 comments (16 topical)

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I'm not a criminal attorney, but I seem to (none / 0) (#1)
by Joelarama on Tue Mar 18, 2008 at 07:35:02 PM EST

recall from law school that a jury nullification instruction is never permissible. I must recall incorrectly.

and if it is permissible, I'm guessing it's pretty (none / 0) (#2)
by DandyTIger on Tue Mar 18, 2008 at 07:41:58 PM EST

rare. But could be wrong. Jeralyn, is there any data on its success? Especially on its success in cases were reasonable people would agree the law is wrong?

This topic never ceases to get me all worked up. I wish this country could wake up and we could have leaders with a backbone to stop this crazy thing. Especially pot, I mean, my god, it's pot. This is just nuts.

I think it is more accurate to say (none / 0) (#3)
by digdugboy on Tue Mar 18, 2008 at 07:45:04 PM EST

that it is never reversible error to refuse to give a jury nullification instruction.

Pattern instructions in my state emphasize obligations jurors have to follow the law as it's given to them. Any jury nullification would contradict that instruction, so it's easy to see why such instructions are never given. Jurors have to know about it, or be told about it in other ways, or be so irascible that they will ignore the follow the law instruction.

I had a moment of panic (none / 0) (#4)
by ruffian on Tue Mar 18, 2008 at 07:50:09 PM EST

and thought you meant they were putting something on the ballot in November. I don't think we need something to bring out the Republican vote.

Yes, I know what helps with panic.

: I wish they would (none / 0) (#7)
by CST on Wed Mar 19, 2008 at 02:04:05 PM EST

Putting it on the ballot in Mass would probably be a good thing for dems. They had an informal poll on the ballot a few years ago and most Mass residents were strongly in favor of decriminilization. May even bring out a bit more of the college-kid vote :). Also, no republican is gonna win here anyway.

: My republican friends like to.... (none / 0) (#9)
by kdog on Wed Mar 19, 2008 at 02:11:56 PM EST

get high too!
This is one of those issues that can get righties and lefties to agree for a change...it's only the authoritarian left and authoritarian right that still support this brand of tyranny, pretty much everybody else is on the same page from my view.

Jeralyn, do you have a link to (none / 0) (#5)
by MarkL on Tue Mar 18, 2008 at 08:24:39 PM EST

a post of yours with your views on drug laws, for reference? I have no problem with decriminalizing marijuana---possibly even legalizing it. Other drugs? Definitely not.

God bless Mr. Stroup.... (none / 0) (#6)
by kdog on Wed Mar 19, 2008 at 08:27:59 AM EST

as a legal laymen, I never understood how drug prohibition was never found unconstitutional, it seems such a grossly obvious violation of our rights, but what do I know.

Jury nullification is our best defensive weapon in the drug war being waged on us...I hope the word spreads from sea to shining sea that every jury has the power to refuse to convict drug offenders.

Obviously our government is asleep at the wheel, it's up to us.

What constitutional right (none / 0) (#8)
by Deconstructionist on Wed Mar 19, 2008 at 02:11:48 PM EST

does it infringe? How does it exceed the police powers of the state?

We must distinguish beteen unfair, counter-productive and even stupid laws and unconstitutional ones.

This is a a publicity stunt, and a good one as it is getting publicity, but it's intended to further efforts to change laws and I'm sure undertaken with the full knowledge it's not going to get the law voided as unconstitutional.

Massachussets could outlaw the possession and use of coffee or tobacco or alcohol if it chose.

: How about.... (none / 0) (#10)
by kdog on Wed Mar 19, 2008 at 02:16:01 PM EST

the right to be secure in your papers and effects from unreasonable search and seizure?
Couldn't it be legally argued that seizing someone's preferred dried houseplant is unreasonable?
Or how about freedom of religion? I always wondered how rastafarians didn't at least get a religous exemption like the catholics did during alcohol prohibition.

Freedom of religion (none / 0) (#11)
by Deconstructionist on Wed Mar 19, 2008 at 02:23:44 PM EST

has some slight history of success. I forget the details but there is at least one Native American group allowed to use peyote because it demonstrated a long history of use in religious sacraments. I'm not sure if that arose from a court case or simply from a legislative exemption.

There is a statute (none / 0) (#12)
by Deconstructionist on Wed Mar 19, 2008 at 02:28:04 PM EST

Federal Native American Church Exemption
TITLE 21-Food And Drugs
Administration, Department of Justice
PART 1307--MISCELLANEOUS--Table of Contents

Sec. 1307.31 Native American Church.

The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.

Notice the law deems it "nondrug use" as though "bons fide religious use" and drug use" are somehow mutually exclusive? It would seem to me that if it's a drug and you use it that would logically be "drug use" but logic has little to do with it.

: to clarify (none / 0) (#13)
by Deconstructionist on Wed Mar 19, 2008 at 02:32:48 PM EST

the provision quaoted above is a regulation promulgated by the FDA notrt a statute. The statutes evidently allows for a waiver of registration requirements if approved by FDA and the AG.

: lol.... (none / 0) (#14)
by kdog on Wed Mar 19, 2008 at 02:35:08 PM EST

Logic is obviously not in play here:)
Any legal legs to stand on with the unreasonable seizure argument, in your opinion?
In my laymen's opinion...how could the state having the right to knock down your door and steal your 20 sack not be considered unreasonable?

No (none / 0) (#15)
by Deconstructionist on Wed Mar 19, 2008 at 02:41:53 PM EST

that's a different issue entirely.

Cases get dismissed because searches and seizures of contraband (or other evidence) are found unreasonable, but the 4th amendment provides no basis for holding that lawfully conducted seizures cannot seize anything that might be considered contraband or evidence or fruits of illegal activity.

It would be the same as a counterfeiter making the argument, you can't prosecute me because my fake money is paper.

: I see.... (none / 0) (#16)
by kdog on Wed Mar 19, 2008 at 02:49:52 PM EST

thanks again for your expertise.
If you ever want joint-rolling lessons I'd be happy to return the favor...I'm the master:)
If I get a chance later I'm gonna re-read the Bill of Rights and look for another way...though I'm sure smarter men than me have tried.