See what a well‐functioning and truly just criminal justice system could look like, explore how we can end overcriminalization, and learn what jury nullification is.
So what would a well-functioning and truly just criminal justice system look like?
Recognize the criminal sanction as a last resort
Restore participation to the heart of the criminal justice system
Level the playing field between citizens and law enforcement
Ensure officers and prosecutors are properly incentivized to avoid abusing authority and consistent accountability
Here’s how this might look in practice.
A crucial distinction between Founding-era juries and modern juries is that the former typically understood what punishment defendants would receive if convicted, whereas the latter generally do not.
Prosecutors now go to extraordinary lengths to prevent jurors from learning what will happen to defendants if they are convicted, including not just the length of the prison sentence, but also collateral consequences, such as loss of various civil rights or deportation for noncitizens.
Another important distinction is that Founding-era jurors would likely have been both familiar with and supportive of jury nullification, more accurately referred to as “jury independence” or “conscientious acquittal.”
All of those terms refer to a jury’s decision not to convict a defendant whose factual guilt has been proved beyond a reasonable doubt when the jury believes it would be unjust or otherwise inappropriate to do so.
Defendants who have been charged with conduct that jurors believe should not be illegal in the first place, such as simple marijuana possession
Defendants who have been charged with a crime that should be punished, but not as harshly as the government proposes
Defendants who appear to have been unfairly singled out or otherwise targeted by the government for inappropriate reasons, such as retaliation for political dissent
Unfortunately, the current status of conscientious acquittal in American courts remains unclear.
