The Truth About Sentencing -- Let Jurors Hear it

         The panel of judges was uncomfortable. One judge wondered whether the United States government had brought the very issues it was complaining about upon itself by charging the defendant with crimes carrying crippling mandatory minimum prison sentences. Another judge was quick to defend the Government: wasn’t I asking the Court to endorse jurors’ ignoring the law, a practice known as jury nullification?

         I was in the United States Court of Appeals for the Second Circuit, on the 17th floor of the federal courthouse on Foley Square in Manhattan. Three judges were hearing arguments on whether the trial judge in my client’s case should prohibit me from asking the jury to disregard the law and set my client free.

         The government filed an emergency motion after a jury was picked in my client’s case, but before the jury was sworn in. It sought this extraordinary relief when it became apparent the judge just might let me tell the jury the whole truth about the case to be tried.

         The United States Supreme Court has never ruled that defense counsel cannot argue for nullification of the law. Neither has the Second Circuit. But it is received wisdom that such arguments are prohibited.

         My client, a male, was 31 when he had a year-long relationship with a 15 year old, a female. She cannot give consent as a matter of law. In other words, the law deems her incapable of saying yes to sex, ignoring the fact the young people do so all the time. The age of consent was increased dramatically in the 19th century in response to pressure from the Women Christian’s Temperance Union.

         If the teen couldn’t consent, was she forced, a judge asked.

         No she was not forced.

         My client is charge with filming an encounter on his cell phone. The phone traveled across state lines before he used it. Hence, it is a federal offense, carrying a 15-year-mandatory minimum. He also downloaded the film before deleting it. Because that involved transportation of the image to the “cloud,” which is out of state, he transported the images across state lines, another federal offense, this one carrying a mandatory minimum of five years.

         No one ever saw the image but the teen, the person who produced it, and law enforcement agents. It was deleted almost immediately.

         Why these federal child prosecution charges? Why these obscene sentences? Congress wants to prevent exploitation of children.

         This is not child pornography; this is not exploitation of a child.

         My client faces mandatory prison time in related state charges for what lawyers call “statutory rape.” The feds are charging him with production and transportation of child pornography.

         The trial judge was rightly outraged by the savagery of it all. In pre-trial rulings, he gave me permission to try to introduce evidence of the mandatory minimums and to argue nullification of the law to the jury. In other words, I was given a green light to tell jurors what the consequences of a jury verdict of guilty would be. Such information is normally kept secret, lest it influence the jury.

         Simply put, nullification gives a jury, sitting as the conscience of the community, the right to acquit if it believes the government is behaving unjustly. There is a long history of nullification in the United States.

         But the panel of New York judges wasn’t buying it, or so it seemed.

         Judges worry that nullification will yield chaos.

         The judges are wrong.

         Years ago, a juror called me after a murder trial. My client, on the cusp of manhood, had been convicted of murder after he senselessly shot another young man in a dispute over a girl. The evidence was overwhelming.

         “Why didn’t you tell us what would happen?” the juror wanted to know after reading about the 45-year sentence imposed a couple of months after the verdict.  Because the law won’t let me, I said. It was an awkward moment.

         Juries should sit in judgment not just of the defendant, but of the government. If the government errs in applying the law, behaving in an unfair, an unjust, or an unconscionable manner, jurors ought to be able to reject the government’s case. Treating jurors as automatons in the Factory of Justice demeans jury service.

         It also damages the republic.

         Yes, we can vote for lawmakers and presidents. Yes, the president can appoint, and lawmakers can confirm, judges. And we are free to seek reform of the law in legislation.

         But the law never rescues unpopular clients from a vindictive government. It just doesn’t happen. Hell, the political process seems hardly to work at all these days on things we all agree we need, such as roads, bridges and railways.

         Juries are legitimating institutions. They are the people themselves sitting in judgment over elected and appointed officials. Jurors are a direct referendum on discrete prosecutorial decisions.

         Prosecutors often argue that they represent the people. They seek to hold defendants accountable. But prosecutors aren’t “the people;” jurors are selected at random from a community to serve as the eyes and ears of the people. How do you ask jurors to do that important job while hiding from them the consequences of their decisions?

         It’s a dishonest shell game that warrants contempt.

         Judges ought not to fear nullification; neither should prosecutors. Those entrusted with applying and enforcing the law ought to seek to build bridges of trust between themselves and the communities they serve. Nullification can help build those bridges.

         Nothing in our law prohibits other than a policy unsupported by precedent, a mere preference that the people be marginalized while the professionals play spin the bottle with justice.

         Nullification was common at the time of the nation’s founding. Indeed, preservation of trial by jury was one reason the colonists gave for seeking independence from Britain. The founders would weep, I suspect, if they saw what became of trial by jury.

         I could hear Jefferson’s tear drops falling on the floor of the Second Circuit this morning. We’ve gone from a people intent on liberty and jealous to defend it to supine cowardice.


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