By Jacob Sullum
Last week a prosecutor in Missoula County, Montana, agreed to a plea bargain after too many members of a jury pool rebelled at the idea of convicting someone for a felony in a case where police found a tiny amount of marijuana. As the defendant's attorney put it in a sentencing memorandum, "Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges on Dec. 16, 2010, is not supportive of the state's marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances." The prosecutor called it "a mutiny." The judge saw it as a sign of the times:
The attorneys and the judge all noted Missoula County's approval in 2006 of Initiative 2, which required law enforcement to treat marijuana crimes as their lowest priority—and also of the 2004 approval of a statewide medical marijuana ballot initiative.
And all three noticed the age of the members of the jury pool who objected. A couple looked to be in their 20s. A couple in their 40s. But one of the most vocal was in her 60s.
"It's kind of a reflection of society as a whole on the issue," said [District Judge Dusty] Deschamps.
Which begs a question, he said.
Given the fact that marijuana use became widespread in the 1960s, most of those early users are now in late middle age and fast approaching elderly.
Is it fair, Deschamps wondered, in such cases to insist upon impaneling a jury of "hardliners" who object to all drug use, including marijuana?
"I think that poses a real challenge in proceeding," he said. "Are we really seating a jury of their peers if we just leave people on who are militant on the subject?"
If you read all the way through the Missoulian story, you'll see that the defendant, who was charged with selling pot, also has a history of theft, drunk driving, and shirking his parental responsibilities. He got a one-year sentence under the plea bargain. Still, the fact that more than a quarter of the potential jurors wondered why the government was bothering with a penny-ante pot case is encouraging.