Dear Pot Lawyer,
If the federal government starts suing cannabis businesses, do those people have a shot?

They do, and it’s not an impossibly long shot. To start, though, we should concede that arguments for cannabis merchants are almost hopelessly skinny as a matter of law. This is because the federal Controlled Substances Act (CSA) outlaws the possession and sale of cannabis, period. In federal enforcement cases, courts have consistently said that the feds can enforce their terrible pot laws, even in states like Oregon where sales are licensed. However, people may not stand for it.

When someone is charged with a criminal offense, that person has a constitutional right to trial by jury. And juries are interesting. For one thing, they have no obligation to follow the law, even where a defendant is clearly guilty. If a pot merchant were selling weed in direct violation of the CSA, a jury could say, “So what?” and acquit that individual. We call this controversial legal concept “jury nullification.”

Jury nullification doesn’t happen often. Most jurors have no idea they can ignore the law, and in federal courts, even a mention of the concept is grounds for mistrial. That said, if a jury does get wind of the option, or is so bothered by its conscience that it chooses to acquit, your hypothetical pot seller is forever in the clear. This is because the Fifth Amendment’s Double Jeopardy clause prevents him or her from being re-tried for the same offense.

Jury nullification has been around for a long time. It became common in trials under the unpopular Fugitive Slave Act of 1850, which criminalized interference with the recovery of runaway slaves by slaveowners. It resurfaced in the 1920s, when the immensely unpopular Volstead Act criminalized alcohol possession right after the 18th Amendment. Many juries hated both of these laws, and simply refused to convict.

So could jury nullification happen in a cannabis trial? Absolutely. A recent Quinnipiac poll found that 71 percent of Americans nationwide would oppose a federal crackdown on legal cannabis. That number is likely higher still in any jurisdiction with an adult cannabis program, like Oregon, where the people themselves ended local prohibition, and where your hypothetical jury would be empaneled.

Does jury nullification happen today? Yes, it does. Recent examples include the acquittals of Dr. Jack Kevorkian, who admitted assisting terminally ill patients to commit suicide, and William Lynch, who won a 2012 acquittal for assaulting a priest who had molested him as a boy. And then there was the recent Bundy trial in Eastern Oregon, where observers passed out nullification pamphlets on the courthouse steps. Each party was guilty under the letter of the law, but juries refused to convict.

Depending on where you sit, the concept of a jury thumbing its nose at the feds in a cannabis case is a pretty fun idea. Hopefully it will never come to that, of course, but it could happen. The jury could simply say, “So what?”

EDITOR’S NOTE: This article stems from a paper titled “Jury Nullification Risks for Federal Cannabis Enforcement: How History and Common Sense Protect the Recreational Marijuana Market.” The paper was written by Emily Baker, a third year student at Lewis & Clark Law School in Portland, Oregon.

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