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Function of Juries & Jury Nullification | 25 Mar 2014

-Our Criminal Justice System Has Become a Crime


LawBooksIn this editorial, Glenn Harlan Reynolds argues in USA Today that there is little justice in our so-called “justice” system, with the jury trials that are so common on television and in the movies being the exception in real life and abusive overcharging in order to coerce people into plea bargains being the rule.
Our criminal justice system has become a crime

When juries decide not to convict because doing so would be unjust, it’s called “jury nullification,” and although everyone admits that it’s a power juries have, many disapprove of it. But when prosecutors decide not to bring charges, it’s called “prosecutorial discretion,” and it’s subject to far less criticism, if it’s even noticed. As for prosecutorial targeting of disfavored groups or individuals, the general attitude is “if you can’t do the time, don’t do the crime.”

The problem with that attitude is that, with today’s broad and vague criminal statutes at both the state and federal level, everyone is guilty of some sort of crime, a point that Harvey Silverglate underscores with the title of his recent book, Three Felonies A Day: How The Feds Target The Innocent, that being the number of felonies that the average American, usually unknowingly, commits.

And it’s not just prosecutors who have such “discretion”, aka nullification power. Law enforcement agents have discretion over who to arrest or not, even if they believe the law has been broken. Judges have much control over what evidence they allow juries to see or not, who may testify in court or not, what instructions the jury is given or denied, how to sentence those who are convicted, and they can overturn convictions. They can use these various elements to nullify the law when they think it should be nullified. Yet the powers that be in the legal system would have us believe that jurors are the only people involved in the process who must strictly apply the law in every case without considering whether the law is just or whether strictly enforcing it will allow them to deliver a just verdict.

Reynolds’ suggested remedies include more fully informing jurors of what’s going on in the cases they are hearing:

First, prosecutors should have “skin in the game” — if someone’s charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.