To read the entire review, click on book title below.

Where American criminal justice went wrong

Dear Shire juror or prospective juror, the book in question is by one William Stuntz, who was a Harvard Law School professor. The book review hereto linked and abbreviated is by Leon Neyfakh and was originally published by the Boston Globe on 26 February 2012. It offers something to ponder as you consider the defendant before you.

The book was written in a hurry. It had to be, because William Stuntz was dying, and the story he wanted to tell was long and complicated. It would be the Harvard Law School professor’s final major work, a sweeping indictment of the system he had been studying for 25 years.

What drove Stuntz to finish the book … was a belief that something had gone fundamentally awry in America. Stuntz, an evangelical Christian and an avowed conservative, wanted people to grasp the profundity of the crisis he had observed — how, over the past 50 years, our criminal justice system had been transformed into an unfair, amoral bureaucracy–one that had given up on the very idea of justice.

Stuntz submitted his completed manuscript to his editor at Harvard University Press in January 2011, about three months before he died at age 52. “The Collapse of American Criminal Justice” was published the following fall…. In it, Stuntz describes how America’s incarceration rate came to be the highest in the industrial world; how the country’s young black males came to bear the brunt of its increasingly harsh penal code; and how jury trials became so rare that more than 95 percent of people sent to prison never had their guilt or innocence deliberated in court. At the heart of the book is Stuntz’s surprising argument about how we reached this point: that well-intentioned Supreme Court rulings meant to protect defendants from unfair and discriminatory police practices combined with the harsh laws passed in response to the crime wave of the 1960s and ’70s to produce a system that is merciless, destructive, and above all, unjust.

It is precisely because Stuntz was such a peculiar political animal that his book – which has been praised in outlets as politically diverse as the Nation and the National Review, and has been endorsed by the likes of Richard Posner and former Supreme Court Justice John Paul Stevens – is now being described by legal scholars as a work of potentially huge influence.

The debate over what these [prison statistics] mean has tended to break down along a neat political fault-line, with liberals blaming unfair drug laws, racist prosecutors, and excessively harsh “three strikes” sentencing guidelines, and law-and-order conservatives pointing to the nation’s falling crime rate as evidence that whatever our justice system is doing is actually working quite well.

Instead of pointing the finger one way or the other, Stuntz decided to look at the entire “political economy” of the justice system, as he called it: the prosecutors who charge people with crimes, the attorneys who defend them, the courts that determine who is allowed to do what, and the legislators who craft the laws in the first place. Stuntz’s approach grew out of his experience as a student, and later a professor, at the University of Virginia School of Law, which was a hotbed for a movement within the legal academy known as “law and economics,” whose proponents believe laws should be assessed not just on principle and precedent, but on what kind of behaviors they incentivize in the real world.

As criminal justice became a clash of mandates and bureaucratic rules, it became untethered from what was once its basic function: separating the guilty from the innocent and delivering fair punishment to those who deserved it. Today, most criminal cases are resolved without any verdict on a defendant’s guilt in a courtroom, but instead through a sort of procedural crossfire. In effect, those rights that the Warren Court gave defendants have become bargaining chips, to be traded away by defense attorneys in exchange for shorter sentences.

Under the current system, justice is essentially administered by prosecutors, who have every incentive to threaten defendants with the harshest possible sentence–and indirectly driven by politicians, who court the favor of voters by passing more and tougher laws. The practical result, Stuntz writes, is that the criminal justice system is now anything but local, and mostly indifferent to the people whose lives are most directly affected by it. Poor minorities who live in the urban neighborhoods with the most crime are living under laws passed to please middle-class voters who live elsewhere, and processed by a system built to force a guilty plea rather than determine whether they actually deserve to go to prison.

That imbalance is at the center of Stuntz’s book, and it reads as a wake-up call to Americans under the illusion that our justice system still centers around the jury trials promised in the Constitution. But in arguing that fair-minded and consistent procedure is not, in itself, enough to guarantee just outcomes, Stuntz was also issuing a profound challenge to his own profession.

Stuntz wanted to show that there was nothing inevitable about our present circumstances–that what has gone wrong in our criminal justice system is the result of decisions and miscalculations that can be identified and understood. That doesn’t mean they can be easily annulled, of course, but it does provide hope that change is possible.

(New Title) relative to the right of a jury to judge the application of the law in relationship to the facts in controversy.

To read the bill with amendments, see http://www.nhliberty.org/bills/view/2012/HB146.

18 January 2012

The Senate will consider a bill today that would let defense attorneys tell jurors they can acquit a defendant even if there is sufficient evidence proving his guilt. But a vote would change little, according to state Supreme Court Clerk Howard Zibel.

Trial lawyers can already do that, and judges also leave jurors an option to acquit, Zibel said yesterday.

Bob Constantine, who was convicted in April by a Grafton County jury of marijuana possession, told committee members to ignore court officials if they testified in opposition of the bill. “I’m going to be blunt,” Constantine said. “I think that’s a power grab. It’s not up to a judge to limit us or decline us a right.”

Rich Angell, also from Grafton County, saw the bill as a way to keep the jail and prison populations down. It would allow juries to acquit people who commit victimless crimes, he said.

Click on the paragraphs above to read the entire article.

As usual, the only ones opposing the bill (while pretending to be neutral), were court officials whose careers depend on putting as many people behind bars as possible, a fact that did not go unnoticed.

Florida man is charged with contempt of court and jury tampering and faces 6 months in jail for sharing information near a courthouse about the right of jury nullification (the right of a jury to decide the correctness of the law as well as whether or not someone violated that law). [There is no law that prohibits providing this information outside the courthouse, only a decree issued by the same judge who now will hear the case against the man. The judge decreed that the only place information can be shared is in a so-called free-speech zone a football field away from the courthouse.] Activist Post 2012 Jan 13

To read the entire bill, click here.

This bill creates an affirmative defense to any felony or misdemeanor if there was no victim of the crime.

AN ACT relative to prosecution for victimless crimes.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Paragraph; General Requirements of Culpability. Amend RSA 626:2 by inserting after paragraph V the following new paragraph:

VI. It shall be an affirmative defense to prosecution for any felony or misdemeanor charged under the laws of this state that there was no victim of the crime. In this paragraph, “victim” means any person who suffers direct or threatened physical, emotional, psychological, or financial harm as a result of the commission or the attempted commission of a crime.

This bill recognizes that jurors are constitutional officers, changes the juror’s oath to that contained in part 2, article 84 of the New Hampshire constitution, requires the court to inform jurors that statutes are guidelines and may be disregarded by jurors, and changes the term “petit jury” to “trial jury.”

AN ACT relative to the duties of jurors as constitutional officers and changing the term “petit jury” to “trial jury.”

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Duties of Jurors as Constitutional Officers; Instructions to Jurors. Amend RSA 500-A by inserting after section 20 the following new section:

500-A:21 Duties of Jurors as Constitutional Officers; Instructions to Jurors.

I. As constitutional officers, jurors:

(a) Shall consider statutes as guidelines and only guidelines to be used in determining case law.

(b) May ask the court for more evidence regarding the facts of a case. The court shall comply with all such requests.

(c) May decide that a statute is unconstitutional.

II. The court shall inform the jury that:

(a) Statutes are guidelines and guidelines only and that the jury may apply any given statute to the case under consideration only to the degree that the jurors determine is appropriate for the case under consideration.

(b) The jury may disregard any statute which the jury finds is not appropriate for the case.

(c) The jury may decide that any statute is unconstitutional.

(d) Jurors decide the penalties of the case. The court shall tell the jurors that they may decide according to their judgment of the case, that either lesser penalties than the statute states or more severe penalties than the statute states should apply. The penalties may include the death penalty.

To read the entire bill, click here.

Professor of law and former federal prosecutor Paul Butler trusts jurors over power-grabbing prosecutors.

IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

Click here to read the article, which mentions aforementioned Julien Heicklen, who is under prosecution for informing jurors of their rights in Manhattan.

The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.

There will be a hearing on this bill in near future, to be announced. Meanwhile, the basic text is found below. To read more, click here. 

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT relative to the right of a jury to judge the application of the law in relationship to the facts in controversy.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Findings and Intent of the General Court. Under the decisions of both the New Hampshire supreme court and the United States Supreme Court, the jury has the right to judge the facts and the application of the law in relationship to the facts in controversy. The jury system functions at its best when it is fully informed of the jury’s prerogatives. The general court wishes to perpetuate and reiterate the rights of the jury, as ordained under common law and recognized in the American jurisprudence, while preserving the rights of a criminal defendant, as enumerated in part 1, articles 15 and 20, New Hampshire Bill of Rights, and the Seventh Amendment of the Constitution for the United States of America.

2 New Section; Right of Accused; Jury Instruction. Amend RSA 519 by inserting after section 23 the following new section:

519:23-a Right of Accused. In all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. The court shall permit the defendant or counsel for the defendant to explain this right to the jury.

]]> http://nhjury.com/hb1397-2012-relative-to-the-right-of-a-jury-to-judge-the-application-of-the-law%e2%80%a6/feed/ 0 http://nhjury.com/new-york-times-prosecution-explains-heicklen-case/ http://nhjury.com/new-york-times-prosecution-explains-heicklen-case/#comments Tue, 29 Nov 2011 23:17:22 +0000 Rich Angell http://nhjury.com/?p=245

This article is relative to the case of jurors’ Rights advocate Julian Heicklen, as reported previously here. Heiklen is an occasional visitor to the Shire.

To read the entire New York Times article, CLICK HERE.

Key excerpts:

Another article published in the New York Times that was previously published below details how prosecutors are offering plea bargains which are harder and harder to turn down, regardless of actual guilt or innocence.

Article by Robert Constantine. This is a followup of the arrest of Jason Talley, as reported here previously.

To read the entire article, CLICK HERE.

A member of the free press, Jason Talley of Talley TV was attacked on September 23^rd, 2011 at the Cheshire County Superior Court by bailiffs and the County Sheriff’s Department.  His “crime”?  Attempting  to exercise a right, that of the freedom of the press. He was jailed and is now free on bail awaiting a trial early in 2012. Talley states he will not take a plea bargain, that it goes against his conscience and that he wants a jury trial he further states he wants it completely transparent and recorded. Talley, a renowned videographer focusing on covering liberty issues and nonviolent civil disobedience is willing to bet a jury of his peers will not find he has harmed anyone.  He asserts he has the right to do his job as a member of the free press.  It appears the highest laws of the land, the United States Constitution and the New Hampshire Constitution agree with him….

The irony in this situation is that Jason Talley has exercised his right to film numerous times at many court locations throughout New Hampshire without incident and without being attacked by armed men.  As recently as October 2011 Talley TV covered the Supreme Court “road show”  hearings held in Moultonboro, NH in front of hundreds of high school students  featuring  the New Hampshire Supreme Court Justices.  We (and I say “we”, because I helped out as a crew member for Talley TV on that day) were treated very well and provided every courtesy due members of the press covering a public event.   In fact, at that event Talley TV was designated as the sole pool  coverage  for Independent Media by the New Hampshire Supreme Court’s own Communication Specialist Laura Kiernan.

To read the entire article, CLICK HERE.