when justice no longer matters: a case study in mandatory minimums and jury nullification...

approximately three years ago a woman was intoxicated and traveling southbound on interstate 25 in albuquerque...unfortunately, the 4runner she was driving rear-ended a small car. the 4runner hit above the frame of the car and the soft part of the car crumpled, killing a 7 year old boy in the back seat. the woman had never been in trouble before, not even a speeding ticket. but when she fucked up, it had tragic consequences. well, the state (after a lengthy and inexplicable delay in moving the case forward) pushed the envelope of the law and decided to use this as a test case. see, it seems pretty damn clear that this was vehicular homicide...nobody ever contested that - the female driver was willing to plead guilty to the proper charge from day one...but the district attorney wouldn't allow it. instead, the prosecutors decided it was time to move the law in a new direction and declare that vehicular homicide resulting in the death of a child in a sepearate vehicle was child abuse resulting in death - because it wanted to trigger the mandatory minimum sentence three times as long as the longest sentence for vehicular homicide. the prosecutors wanted to change the law so that any crime which endangers the general public can be prosecuted as child abuse.

and so they refused to even talk of a plea in this matter. and the victims had to continue to suffer for nearly three years rather than begin to move on immediately as would have been possible had the prosecutors accepted a plea to vehicular homicide (which still carried up to 6 years). and the victims had to go through a trial...only because the prosecutors wouldn't give up the mandatory minimum that goes with child abuse. and in the end, the jury compromised, thinking it was picking a lesser crime - when in reality all it did was give the same crime a different slant with the same minimum mandatory.

and the jury never knew what it was doing. the jury was never informed that by finding guilt it was setting the sentence, that the judge's hands would be tied and he would have virtually no control over the sentence metted out based upon the verdict. (side note - as amended, the mandatory sentence for this crime would now be life - so you kill a kid that is 17 years and 364 days, you get life - if the kid was 18 years and 1 day, you get 6 years). rather, thanks to a system which developed in the days of indeterminate sentencing, when the verdict truly did not determine the sentence, the jury was not allowed to hear the law as it related to sentencing and was specifically told to ignore the consequences of its verdict.

this is not how our jury system was designed to work - and the use of mandatory minimums without instructing and educating juries of their constitutional power of nullification, or at least giving them the tools to decide to nullify without specific instruction on the subject, is violating your right to a trial by jury and your rights as jurors. mandatory minimums (the effectiveness of which have been shown to be basically null) have given juries the near-exclusive power to decide sentences for actions - and they are never told this is what they are doing.

see, juries are the ultimate check on governmental power. they are the last and most direct stand of the common folk against abusive and oppressive government. they are your opportunity to declare what is truly the conscience of the community (since we all know legislators stopped playing that role long ago). and for this reason, juries have the constitutional right to nullify - they have a constitutionally protected ability to tell the government "fuck you - we don't care what the evidence shows, this prosecution offends us as representatives of the community" or "fuck you - this law is bullshit." and this is a power they must utilize in an age when prosecutorial discretion can effectively set the sentence for defendants (by picking the crimes to charge, prosecutors can basically determine who gets what sentence, as shown above).

unfortunately, this tends to mean that those persons with the least amount of pull in the rest of the governmental process end up getting the brunt of criminal prosecutions (hence the overwhelming disparity in charging and incarceration rates for minorities). this is why the jury is so important - and why they must be allowed to effectively utilize their power. how are they to adequately serve as a check on oppressive prosecutions if we deny them, at the very least, the information necessary to decide whether or not nullification is appropriate? how are they to properly serve their purpose if they are instructed to ignore their constitutionally protected power?

it isn't just the rights of accused that are getting trampled by this misinformed policy which promotes governmental abuse and limits the right to a jury trial by preventing defendants from raising legitimate defenses...you, as a member of the community, have the right to tell the prosecution that regardless of the level of proof, the mandatory sentence in a particular case is inappopriate. don't ever forget that if you get on a jury...and demand the information necessary by writing questions to the judge repeatedly. as it sits, you are being denied this opportunity at every criminal trial in almost every jurisdiction in this country. that alone should offend you enough to forever declare as a juror that the state can kiss your ass and find somebody else to declare guilt and punishment.

I will swing free until they cut me down...