"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.

audit reveals errors in national DNA database

The FBI maintains a database of DNA samples, taken from convicts, suspects, and crime scenes. A recent audit showed errors in nearly 170 profiles. In a database that holds 13 million profiles, 170 seems a small number though the importance is crystal clear to those whose cases may have been affected.

To those who have been exonerated or convicted because of DNA evidence, the realization that DNA evidence isn't infallible must be mind-blowing. How does it feel to sit in prison wondering if a typo or bad handwriting were part of the reason for your conviction? 

The discoveries, submitted by the New York City medical examiner’s office to a state oversight panel, show that the capacity for human error is ever-present, even when it comes to the analysis of DNA evidence, which can take on an aura of infallibility in court, defense lawyers and scientists said.

In a world where the majority of defendants accept a plea agreement, the prosecution doesn't need to prove anything to a jury. When the prosecutor can pin a defendant between a mandatory minimum sentence and a plea agreement--and going to trial can add years to one's sentence--the prosecution can be confident that anything they say about DNA evidence will not be challenged.

A prosecutor's best tool is supposed to be evidence that the defendant committed this particular crime. Instead, his best tool is the mandatory minimum sentence.

This is not a reliable path to justice.

if you can't do the time

When families of sex offenders point out the harsh penalties for sex crimes, we usually hear some version of If you can't do the time, don't do the crime. This comment  is a good example:

Quick question, was your husband aware of the reprecautions for having child porn on his computer? I'm sure he knew it is illegal and what could happen if he got caught. He took the risk didn't he? You should be angry with him, not with the system.

If my husband didn't want to go to prison for four years, he should have simply not looked at child porn. That answer satisfies the self-righteous but The Most Boring Radical asks us to think about how that reasoning could be used to excuse all kinds of draconian punishments.

We could argue, I suppose, that a woman in Saudi Arabia who doesn’t want to get stoned to death just shouldn’t commit adultery. That a person in China who doesn’t want to get thrown in prison just shouldn’t own a Bible. That a young man in Somalia who doesn’t want his hand cut off just shouldn’t steal. That, in the 1950s in America, a gay man who didn’t want to be arrested just shouldn’t have engaged in sodomy.  

We could argue those things, but we’d be wrong. We’d be demonstrating a limited, immature form of ethical thinking. We’d be acquiescing our sense of right and wrong to the state.

Unless you have been exposed to the workings of the justice system, it is easy to assume criminals get what they deserve, that the laws properly identify what is a crime and what is not. It is easy to let the justice system hum along in the background of your life, without noticing how it works. However, you are responsible for thinking about whether justice is served. 

This should not be the way we understand justice. As long as we keep the mindset that there is no such thing as a too-severe consequence because the consequence can be avoided simply by obeying the law, we are handing our own powers of moral reasoning over to the government. We have succumbed to totalitarianism. And, as soon as we do that, we have set the stage for even greater injustices in the future.

Is it fair that streakers can end up on the sex offender registry? The sex offender registry did not begin with streaking listed among registrable crimes but the registry set the stage for even greater injustices in the future. Are we sure that streaking and public urination will be the end of those added injustices?

Back to the comment I quoted, No, my husband was not aware that he could spend years in prison for a first offense of looking at videos of teen-aged girls. Even his relatively short sentence is unthinkable. 

If Morton Berger knew he could be sentenced to 200 years for twenty child porn images, does that make his sentence just?

rand paul wants to give judges a way to ignore mandatory minimum sentences

Exciting to see Rand Paul doing something to lessen the impact of mandatory minimum sentences. Heck, it's exciting to see someone in the Senate acknowledging that there is a problem.

Judges will tell you that current federal sentencing laws — known as mandatory minimums — don’t actually do anything to keep us safer. In fact, judges will tell you that mandatory minimums do much harm to taxpayers and to individuals, who may have their lives ruined for a simple mistake or minor lapse of judgment. 

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington’s habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

He focuses on how mandatory minimums affect drug offenses because so many people in prison are there on for that reason.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right. 

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion. 

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Prosecutors use mandatory minimums to force a defendant to accept a plea agreement. The plea agreement means the case avoids trial and the prosecutor avoids having to prove the case in court.

It would be best to abolish mandatory minimum sentences and this bill wouldn't do that, though it is an encouraging start.

how do I feel about the victims of child porn?

I promised I would respond to Liza's comments on how I feel about the victims of child pornography. She said:

I think you are very lucky that you or your kids have never been sexually abused. You have no idea the effect it has on a person. They carry the shame and horror until they die. Every relationship they have is affected. What happens to the family of the perpetrator is not the victim's concern. It's horrible for the family but the victim is what matters. Even if the victim is only in pictures. I assure you that the child in the pictures is the victim in child porn - not the person that looks at it. 

I've read every word you have written. There seems to be no concern for the victims but only for your family. I think if you thought about sexual abused victims, you'd have a easier time with what has happened to your family. You'd understand why all hell as broke loose in your family.

There must be blogs out there that discuss the viewpoint you accuse me of ignoring; this is not one of them. I started this blog to talk about my experience as the wife of a man under investigation for possession of child pornography.

Sexual abuse of a child is wrong, no matter how the child deals with it as a child or as an adult. If a victim grows up to be a lovely, well-adjusted person with no lingering effects of the abuse, the abuse was and is wrong.

I have said before that I cannot imagine what it is like to be a victim of sexual abuse and to find that there are photos of that abuse available on the Internet. While victims can share some responses to their abuse, surely they cannot all react the same way. Every victim has his or her own feelings about the abuse and makes his or her own decisions about how to deal with those feelings. To say they all "carry the shame and horror until they die" is a gross generalization and discounts the individual perspectives of each person involved.

I cannot do anything about how victims deal with the after effects of abuse when I do not know the victim. As much as I would like to wave my magic wand and make things better for all child sexual abuse victims, I am tragically unable to do that. We all are. Putting sex offenders on a registry is not the magic wand, either. Identifying all the sex offenders in the neighborhood does nothing to protect children from the first-time offender.

You say "What happens to the family of the perpetrator is not the victim's concern." If you don't care personally about what happens to the families of sex offenders, that is your choice but when your government is responsible for the bad treatment of sex offenders and their families, it is your concern.

You say, "I assure you that the child in the pictures is the victim in child porn - not the person that looks at it." The child in the pictures is a victim of the person who sexually abuses him or her and of the person who photographs the abuse and distributes it. The person who looks at child porn is victimized by a court system and a society that treats him as if he has committed the abuse in the photos even when he did not.

It is frequently said that the child in the photos is victimized again every time someone looks at the image. If that is true, why are you not angry with the investigators, the prosecutors, the attorneys, the juries and all the other people who look at those images? If simple looking victimizes the child all over again, those people are also victimizers, are they not? Perhaps you mean that any pervert who looks at the images and masturbates while looking...those are the ones victimizing the child again? Here's a surprise: the law does not care if the viewer is masturbating or knitting socks while looking. Masturbation is not the crime. The crime is more specific: Clicking a link to download the image is the crime; possessing the image is the crime. The law does not even care if you look at the images in your possession.

My concern is not only for my family. They are, of course, my first priority (isn't that true for you, as well?) but our concerns should reach far beyond our families.

My concern is for the victims of the war on drugs unemployed because their status as a felon makes them ineligible for hire. My concern is for the sex offenders harrassed, hurt, and killed because they are on the sex offender registry. My concern is for the government budgets straining under the rising cost of incarceration. My concern is for the families who are victimized by law enforcement using SWAT tactics or home invasion tactics to execute search warrants. My concern is for the children who watch cops shoot the family dog during those searches. My concern is for the millions of American citizens who are not allowed to vote. My concern is for the defendants--innocent, even--who are forced to accept a plea agreement because the mandatory minimum sentence waits for them if they don't take the plea.

You said a mouthful when you said I should be glad that my family has not been subject to child sexual abuse. I am glad. My heart goes out to anyone who has to deal with that particular horror. However, child sexual abuse is not the only horror in the world...nor is it even the worst horror.

I will not apologize for focusing on the injustice my family faces.

jury uses common sense and refuses to convict

Radley Balko links to a happy story about a jury with common sense and courage. Dury jury selection, the prosecutor asked the prospective jurors "...if they believed beyond a reasonable doubt that the offense was committed, would they convict?"

...50 out of 130 jurors said no, they would not convict someone even if it was proven beyond a reasonable doubt...

“They said they weren’t going to make somebody a felon and ruin their lives over less than a gram of cocaine,” Dupont said.

Jurors often don't understand that a true choice is put in front of them. They actually <i>can</i> vote 'not guilty' even when the evidence says otherwise. The court doesn't like them to know this, so the judge isn't allowed (legal experts: is "not allowed" true? that's my understanding) to tell the;, the defense cannot tell them. And nobody tells them when there is a mandatory minimum sentence that will be applied if they decide 'guilty'.