"Jury Nullification Can Veto Prison Profiteering"

Fuly Informed Jury Association writes about for-profit prison corporations lobbying against laws that would relieve prison overcrowding.

FIJA quotes from an article in Republic Report:

In recent months, a broad, cross-ideological coalition has pressed forward to reform mandatory minimum prison sentencing. In some cases mandatory minimum sentencing can lead to a lifetime in jail for nonviolent offenders. But a strange group has appeared on lobby disclosure forms reviewed by Republic Report. Prison labor companies are attempting to influence the bill, and they refuse to reveal what they’re doing and why. 

The group is called the Correctional Vendors Association, an organization that represents companies that use prison labor to produce everything from furniture to clothing goods. CVA has spent $240,000 on lobbying over the past year, and forms show the organization is interested in shaping the outcome of the Justice Safety Valve Act, or S.619, a bill proposed Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) to allow judges to impose a sentence below the mandatory minimum in many cases, including drug-related sentences.

Correctional Vendors Association lobbies against a bill that would give them a smaller captive workforce. Congressmen dislike voting against any bill that can be construed as tough on crime. That combination is hard to beat.

FIJA reminds us that we have a way to fight back: jury nullification.

Remember that even a single conviction on just one of many charges—even a seemingly minor one—can trigger excessively harsh penalties due to mandatory minimum sentencing schemes, three strikes laws, 10-20-life rules, sentence enhancements for acquitted conduct, and so on. And harsh penalties mean a ready supply of forced labor who are often paid less than 50 cents [an] hour for work that would command several dollars an hour in the free market. 

Inside the courtroom, of course, we will often be misinstructed by judges that we “must” convict if the prosecution proves its case beyond a reasonable doubt. But this is simply not true. Judges cannot require jurors to deliver a Guilty verdict, and jurors cannot be punished for voting their consciences. Jury nullification is not only your right, but your duty if it is necessary to deliver a just verdict.

Jury nullification can be a powerful tool in the cause of justice and FIJA does a fine job reminding us of that.

judicial whining and finger-pointing

What's a judge to do?

 My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.

Judge Mark W. Bennett writes in The Nation about his part in sending Iowans to prison--for years and decades--for their non-violent crimes.

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

Good on you, Judge, for visiting prisoners and convincing yourself that since the sentence you handed down worked out well for some, perhaps you're not the bad guy you feared.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

Judge Bennett shows real compassion for the children and families severely affected by the mandatory minimum sentences but did he stop signing search warrants that would send armed men into the homes of those families when the children were home? 

I wonder at what point in those nineteen years the good Judge came to the realization that mandatory minimum sentencing is wrong. Did he know right away that it was wrong? Did he continue sentencing defendants to the mandatory minimum for nineteen years or only a dozen or so? Or did his realization come immediately before writing the opinion piece? 

What could he have done? Judge Bennett provides his own answer in the comments after his article:

I understand why some of you are labeling me a coward. But there is a lapse of "critical thinking" here. I took an oath to uphold the Constitution and the laws of the United States when I was sworn in. Federal judges cannot substitute their personal opinions and refuse to apply valid laws passed by Congress. If we did our legal system would be replaced by anarchy. Our Nation operates under the rule of law. Higher courts have upheld the constitutionally of mandatory minimum sentencing and no defendant before me has ever raise a legal challenge to them. They are not illegal but IMHO unwise. Only Congress can change them..that's not a copout it's the law !!!!! So for Pope Pisius [another commenter] to accuse me of fake heroism and fake concern is unfair. And yes, RoundAbout federal judges have to apply valid laws passed by Congress. We can't willy nilly enforce only laws we personally agree with. 

So he was just doing his job...to prevent anarchy. The defendants walked willingly onto the trains. Here's an idea, Judge Bennett: You could have instructed jurors on their duty to decide if the law was properly applied in the case before them. Imagine if you had begun doing that nineteen years ago! How many of those 1,092 defendants would have benefited? And if you didn't want to do that yourself, you could have allowed defense attorneys to do it.

Many people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justices William Rehnquist, whom nobody could dismiss as “soft on crime,” and Anthony Kennedy, who told the American Bar Association in 2003, “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.” In 2005, four former attorneys general, a former FBI director and dozens of former federal prosecutors, judges and Justice Department officials filed an amicus brief in the Supreme Court opposing the use of mandatory minimums in a case involving a marijuana defendant facing a fifty-five-year sentence. In 2008, The Christian Science Monitor reported that 60 percent of Americans opposed mandatory minimums for nonviolent offenders. And in a 2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh.

Three presidents, four former attorneys general, a former FBI director, dozens of former prosecutors, judges...blah, blah, blah. Did any one of them do anything more than talk about how awful the mandatory minimum sentences are? 

Did any of the three presidents put forth bills to abolish the MMs? Did the FBI director put out the word to stop executing search warrants SWAT-style or home invasion-style? Did the prosecutors stop using the MMs to pin defendants between a rock and a hard place? 

I would guess that, just like Judge Bennett, they did not.

vote the cowards out of office

I wasn't able to post this earlier today but it is still important: Vote.

Remember the millions of felons who are not able to vote out the elected officials who:

• created the mandatory minimum sentencing that gives prosecutors too much power, 
• who make sure juries do not know their duty to decide if the law is applied correctly, 
• who pass laws that make it nearly impossible to lead a normal life after serving prison time.

Vote out the cowards who are too afraid to do the right thing because they will be seen as easy on crime.

new hampshire has new law on jury nullification

New Hampshire's governor signed a law that recognizes the right of a jury to decide whether a law is applied justly.

"[A] Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy."

This is important.

A friend once told me that when he served on a jury, he knew the defendant was really blameless but my friend said he had to decide based on the facts of the case. Not true of course, but jurors do not know this. The judge won't tell them, the prosecution certainly won't tell them, and the defense is forbidden to tell them. However, jurors always have the right--the responsibility--to decide that the law is not just in the case before them.

Now, in New Hampshire, the defense IS allowed to tell the jury about jury nullification.

I have the feeling this New Hampshire law will end up having a tremendous effect on the American judicial system as a whole. If enough people start nullifying drug laws in New Hampshire, eventually New Hampshire prosecutors will be forced to stop prosecuting drug offenses in that state entirely. In 2010, a Montana case never even made it to trial because prosecutors could not find enough people who would be willing to convict a person based on drug charges. 

Let's hope that's the way it works out.

jury nullification, a good and necessary practice

Radley Balko on jury nullification:

We have a much more complicated, vague, and confusing criminal code now. A huge percentage the felonies prosecuted today are for consensual crimes. Conspiracy, racketeering, and money laundering laws enable prosecutors to take multiple bites from the same apple, from multiple angles. That improves the odds of winning a conviction on something. And that of course gives them another tool—the power to pile on charges in order to force a plea agreement. Which means that in 90+ percent of the felony convictions in America today, the government never needs to bother proving its case. 

Jury nullification more important than its ever been. And the power is still there. There’s little a judge can do about a jury that returns an acquittal based on their assessment of the justness of the law, rather than the facts of the case before them. But as regular readers of this site are well aware by now, prosecutors and judges screen any prospective juror who has even heard of the term.

Juries have the responsibility to refuse to convict when the law itself is bad. Do juries know that? Nope, and there is no way for the defense attorney to tell them that directly.


The recently passed New Hampshire law is a huge advance in this cause.