Citizens as Sovereigns

Guest column by Hugh Turley

The United States leads the world with the highest percentage of its population in prison. Maybe it's time to consider if it makes sense to incarcerate harmless people.

The recent case of Malcolm Hines, 40, is a good example. After being released from prison in 2007 for a cocaine-dealing charge, Hines has been an upstanding citizen operating a shoe store on Martin Luther King Avenue in Southeast D.C. He is a husband and a father.

His store had a string of burglaries and holdups; it's located in a neighborhood plagued by 110 gun crimes in the past year, including assaults, robberies, and killings. His sister-in-law hid a shotgun in the shop for protection. Acting on a tip, police found the gun and charged Hines with being a felon in possession of a gun. Now, after his conviction in October, he faces a minimum of three years in prison.

The conviction may make the judge and prosecutor look tough on crime, but dangerous criminals still roam the streets. While he was awaiting his sentencing, gunmen robbed Hines’ store -- again.

Hines was not accused of harming anyone. Perhaps the jury should have considered if the community (not to mention the Hines family) is well served by putting him in prison? Is it a good law? Is the law being justly applied? Does the punishment fit the crime?

According to Hines’ wife Sherita, the judge instructed the jury that, "If it is reasonable to believe that Mr. Hines knew there was a gun in the shop then you must find him guilty.”

Sadly, the jury was not fully informed about its role. In 1717, John Adams said of the trial juror, “It is not only his right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

When a jury votes to acquit because it deems a law to be unjust it is called jury nullification. The history of jury nullification pre-dates the U.S. Constitution. In 17th century England William Penn, a Quaker, was charged with preaching an illegal religion. A jury found him not guilty in spite of clear guilt because they refused to punish him for worshipping God according to his beliefs. Freedom of religion and trial by jury were carried over to the American colonies.

Jurors can act as sovereigns and affirm or veto laws of questionable value that lack public support. Even as far south as Georgia during the 19th century, juries acquitted whites for aiding slaves escaping bondage. And during Prohibition there was a 60% acquittal rate in alcohol prohibition cases.

Citizens can veto tyrannical laws if a War on Terror turns into a war on the Bill of Rights. Jurors can act to protect the First Amendment “right of the people peaceably to assemble” by refusing to convict citizens arrested for protesting.

Juries serve to put criminals who harm others in prison. But they also guard against government tyranny. Shouldn't defending constitutional rights rise above a judge's instructions?

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This article appeared originally in the January 2012 Hyattsville (MD) Life & Times. It is reprinted here with their permission. See also “The Grand Jury” and “Jury Duty: Time to Bring Back the Runaway Grand Jury.”

Addendum

Malcolm Hines was sentenced to 18 months in prison. It was reported in a Washington Post blog that does not appear in their print edition. One of The Post’s local readers, who calls himself “theamerican,” reacted viscerally and quite understandably:

So those who committed the violent act remain free while a man "guilty" of protecting his family and business goes to jail? For 18 months? and the prosecutor sought 40 months? This is absolutely NOT justice. Some have suffered home-invasions. I guess they too would get arrested for keeping a shotgun after such a traumatic experience. I was car-jacked at gunpoint several years ago and no one was ever arrested. So if I carry a weapon in order to protect myself because MPD (Maryland Police Department ed.) is obviously out-manned, out-gunned and outsmarted, MPD would rather arrest and prosecute ME than the criminals. Yeah just set up speed cameras and red light cameras to collect revenue; much easier than going after the bad guys. That's just about as upside down as it gets!

David Martin

August 25, 2013

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