Wednesday, July 14, 2010

Romeo, Juliet and Jury Nullification

The most profound form of "stranger danger" apparent in the nation's criminal justice system arises not in the form of a sexual predator lurking in the shadows. No, the stranger who presents the gravest danger to our society is the lawmaker, judge or prosecutor who seeks to transform the criminal justice system into a blind assembly line. Only if we the people take back the power that is rightfully ours can justice be done.
Consider the so-called Romeo and Juliet laws criminalizing consensual sexual contact between young people when one of the participants is below the age of consent. 
Laws raising the age of consent to 16, 17 and 18 years of age were enacted throughout the United States in the late nineteenth century in response to rapid industrialization. There was a fear that young girls leaving their homes in rural communities would be subjected to danger in the cities where factory jobs were plentiful. Activists responded by insisting that the age of consent be raised from 10 and 11 years old. The law was passed not to prohibit acts of curiosity or even love between young people. It was to protect the young from stranger danger.
These laws are still on the books today, and many a young person is now in prison, a felon, a lifetime registrant as a sex offender or otherwise consigned to the indefinite purgatory known as sex offender treatment for the simple act of sexual curiosity. We put these young people on trial and never let the jury know what the consequences of a guilty verdict entail.
When these crimes are charged, a defendant is cast into the criminal justice system. And it is at this point that the newest form of stranger danger takes place. Jurors are often told only what must be proven by the state to find a defendant guilty. Jurors are given no, or, depending on the jurisdiction, little responsibility for punishment. We ask jurors to determine guilt in a vacuum, divorcing the crime from the consequences of being found guilty of it. This is moral cowardice.
The result is a system in which no one really accepts responsibility for what happens to a young person at trial. Lawmakers pass laws in their legislative sanctuary without any particular knowledge of the person on whose neck the law's yoke will fall. This one size fits all approach often works injustice.
Judges then turn their back on justice when a defendant appears before them. If lawmakers mandate a mandatory minimum sentence, then a judge imposes it. The judge disclaims responsibility taking the judicial version of the Nuremberg defense: he or she is, after all, just following orders.
Prosecutors, too, turn away from the consequences of their acts. Legislators create the crimes and penalties. Prosecutors just move the widgets down justice's conveyor belt.
In this way, government becomes unaccountable. When three branches of government -- the legislature, the courts and the executive in the form of the prosecution -- all turn their backs on one another, link arms, and dance a chaotic jig the result is hardly a thing of beauty.
So where do defendants turn for justice? It used to be a jury was told it was free to serve as judge not just of the facts, that is whether something occurred, but also of the law, to wit: whether the law was correctly applied. Almost every state now disapproves of jury nullification, as do the federal courts.
My sense is that we need to revisit jury nullification. Folks involved in combating the excesses of the nation's failed war on drugs have done good work in focusing attention on jury nullification. Those in the reform community on sex offender laws need to forge a link with with drug law reformers and spread the word that jury nullification, i.e., teaching juries about the consequences of what they do and of their right to refuse to be conscripted as assembly-line workers engaged in the detached work of finding so-called facts regardless of the consequences, is an important American tradition that must be revived.
Here is a link you can use to learn more about nullification. Is nullification unpatriotic? No. It's as American as apple pie. Don't forget for a moment that the greatest stranger danger lurking in the courts comes in the form of judges, lawmakers and prosecutors who don't want jurors to know the truth about what a jury is doing and why.