January 13, 2012 3:01:26 PM by
In December of 2011, a series of arrests for gun possession charges in New York City raised a number of important—if perhaps unexpected—legal issues. A number of individuals with valid conceal/carry gun permits issued outside of the city had attempted to “check” their guns—whether at the Empire State Building lobby, the airport, or in one case the 9/11 memorial—and were arrested under the NYC gun law, which recognizes the validity of no outside permits, and carries with it a mandatory minimum sentence of three and a half years in state prison for possession of a loaded weapon. Many commentators have focused their ire on the specific nature of the New York City gun law itself, or have otherwise used the cases as a launching point for a discussion of the Second Amendment’s requirements.
In the piece we posted today on Forbes.com, Daniel Schwartz and I discuss, instead, the dangerously diminishing importance of “intent” in the criminal law—the so-called mens rea requirement that an individual be aware that he is committing a crime before he can be found guilty. Combined with the existence of mandatory minimum sentences, this creates a toxic soup that invites a seemingly radical remedy: “jury nullification,” or the controversial idea that juries have the power (even if not the clear right) to “nullify” unjust laws by voting for acquittal even when a person is, technically, in violation of the statute. Jury nullification, we argue, is essential in a free society that has gone off the rails in terms of prosecutorial abuse. While my book Three Felonies a Day: How the Feds Target the Innocent (updated paperback June 2011 from Encounter Books) details federal law injustices, Schwartz and I point out in this forbes.com piece that state legal systems are not entirely immune from similarly abusive tactics.