Monday the New York Times ran a front-page story about how,
after two decades of a prison-building boom and enacting tougher
sentencing laws, states are beginning to re-evaluate their ‘tough
on crime’ stance.
The story explains how 25 states over the past year, because of
tighter budgets, have taken measures to eliminate some of the
mandatory sentences, giving more paroles and even offering
treatment instead of incarceration for first-time drug offenders.
These states, the story says, are finding it is better to be smart
on crime than tough on it.
Washington, one of the states mentioned in the story as relaxing
their tough on crime stance, is projected at saving $45 million a
year with their new laws.
Maybe the sour economy has proved to have an upside after all.
It is not as if the last two decades have proved to be a roaring
success against the evils of non-violent crime. In some ways they
proved to make matters worse. Most victims of prison rape are
incarcerated for non-violent offences. (www.spr.org).
And I can’t help but think of Johnny Depp’s quote in “Blow” — a
movie about George Jung who was a drug trafficker of the ’70s and
’80s — “I went in (to prison) with a bachelor’s degree in
marijuana. I came out with a doctorate in cocaine.”
For now, the new trend to rethink how non-violent criminals are
handled in our system is a needed start. But it is only a
What about the 25 other states in the nation who have not jumped
on the prison reform train? What defense can a defendant have
against a mandatory sentence if convicted of engaging in one of
these non-violent law book violations?
The answer is in petition for Supreme Court review in the case
Apprendi v. New Jersey (2000). It is the power of the jury to
choose non-conviction of an accused because they reject the law or
mandatory sentence. It is called a jury pardon, jury nullification
and jury void. Although most courts do not support the right of a
jury to acquit in defiance of a law, there is nothing they can do
when it happens.
In the past the jury pardon has been used in cases involving
miscegenation (the interbreeding of different races or of persons
of different racial backgrounds, according to American Heritage
Dictionary) and slavery. The former is a perfect example of the
important use of jury pardon; the latter is an unfortunate
reflection of the mindset of the time — and involving an action
that was hardly non-violent to another person.
But today, the jury pardon might be the only defense against the
mountain of legislation penalizing vices such as gambling and
drugs. How often are juries informed that a guilty verdict carries,
for many of these non-violent consensual acts, a mandatory sentence
of 10 years and even life in prison?
Attorney at Law Rex Curry argues against case law that disallows
the jury nullification defense in trials.
“In cases where the government’s evidence cannot be rationally
disputed, and where the law prevents the nullification defense,
then the law forces defendants to mount irrational/absurd defenses,
or no defense at all. Such predicaments are a violation of a
defendant’s right to due process and of a defendant’s right to a
meaningful jury trial. The defendant should have the right, should
he so decide, to present a pardon/nullification defense, either
alone or in conjunction with any other defense.”
The law should not ban this important power of defense because
it fears the release of a defendant it wants to convict. Remember
that just allowing the jury pardon defense is not a sure path to
acquittal. Arguments must be made and the jury then chooses to
agree or disagree, but they should at least be given that
Let the jury decide.
Shannon is a senior majoring in technical journalism major. Her
column runs every Tuesday.