Nov 102003
Authors: Shannon Baldwin

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. (

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.





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