Throughout this course we have studied punishment and sentencing and its relationship to race. However, this problem is to challenge you to think of sentencing and race in another sentencing concept: the concept of jury nullification by black juries as a "sentencing" tool for black defendants. The basic theory is that black juries, through nullification, decide the sentence of a black defendant outside of the criminal courts. The decision as to which type of conduct should be punished is "better made by African Americans themselves, based on the costs and benefits to their community, [rather] than by the traditional criminal justice process." By nullifying trials, black juries send black defendants into the community to serve their "sentence" within the community instead of behind bars.
This concept of "jury nullification" has been moderated somewhat as to the judicially sanctioned authority of the jury to judge the law applicable to the case on trial . . . The appellate decisions disapproving jury instructions which expressly inform a jury that it can independently construe as well as apply the law have not, in fact, altered the power of the jury to do just that, if in so doing, it acquits the defendant. From a practical standpoint, there is no way to review or control the manner in which a jury applies, ignores, or misconstrues the law in arriving at a verdict of not guilty.
Id. at 873, 169.
Marion Barry was mayor of the District of Columbia. In 1990, approximately sixty
percent (60%) of the District of Columbia's population comprised of black residents. Marion Barry went on trial in federal court charged with one count of conspiracy to possess cocaine, ten counts of possession of cocaine, and three counts of perjury. The jury of twelve had ten African-Americans.
The evidence against Barry was compelling. The government had a videotape of the
Mayor using drugs. Additionally, the woman who gave Barry the drugs testified to his use. Nonetheless, Barry was acquitted of all but one count the perjury count.
You are a member of the state legislature. You recognize that jury nullification has become a powerful "sentencing" tool for African-Americans to show their disapproval of draconian sentences that have the effect of discriminating against members of their race. The juries believe that the appropriate "sentence" for black defendants is a second chance in the community. Black juries have repeatedly nullified cases involving non-violent, malum prohibitum crimes such as drugs offence cases. This has led to what legal and social analysts call "social anarchy" within the justice system.
As the chairperson for sentencing reform in your state, you have to satisfy the white community which is forty percent (40%) of the state's population. As the chair, how would you and the committee answer and address these questions:
Kelli Simone Irvine
"We're all mad here," said the Cheshire Cat to Alice.