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God in the jury room.

Personally, being a great believer in the common sense of juries, I think jurors should be allowed to decide whether the prosecution is applying the law in a just manner. It's condescending to say that 12 regular citizens cannot tell if charging someone with larceny for taking a paperclip from work is justified (yes I know it's an extreme example).

Generally, it is my belief that prosecutors don't like jurors to exercise this power (they always have it but it is verboten to mention it during a trial in most States) because it has a lopsided democratization effect. When "the mob" gets out of control in most of life's situations it can act in a way that is either pro or anti government. In court the prosecutor, by bringing a particular charge, has limited the mob's ability to be pro-government¹. Therefore, should the jury think that the prosecutor has not been severe enough it cannot void his decision in favor of a more stringent penalty even if a more stringent penalty is justified².

On the other hand, should the jurors think that the prosecution has overcharged or that applying the law as written to the Defendant is unjust they can unequivocally show their displeasure by refusing to convict. Why do you think that prosecutors fight so hard to keep the mention of mandatory sentences in Exile cases from being put before the jury? If a jury knew that the Defendant would get a mandatory 5 years in prison because he had a felony 20 years ago, he borrowed his son's car to go to the market to pick up some bread, and the son kept a pistol in the glove compartment which the father knew about (but forgot) would the jury convict if it were allowed to decide whether the charge was just? Anyone who has seen the wide eyes when jurors are told they must impose the mandatory time knows that there's a good chance they would not.

Which, all-in-all, is a long winded way of saying that I understand why prosecutors dislike this role of the jury. That judges disapprove of it also is a posting for another day . . .



¹ I am assuming for this argument a prosecutor who makes an appropriate charge Of course, a prosecutor may overcharge for leverage, political reasons, or as a trial tactic. Usually this occurs in the manner of the Defendant being given a number of charges for a single happening. An example is when a man is charged with forging, uttering, and grand larceny for handing over one bad check. If the law limited the prosecutor to the most serious of the charges in this one temporal event (one event = one charge) it would make much more sense but by charging all three two can be negotiated away and a felony conviction obtained with less muss and fuss.

² Yes, I realize that it is unlikely that a jury would be tougher than the prosecutor but we're talking theory here, not reality.