Aghast at the realization that their guilty verdict against Occupy activist Cecily McMillan could land the 25-year-old up to seven years in prison, a number of jurors in the case have written to the presiding judge to ask for leniency in sentencing.
Their letter is a sliver of silver on a coal-black cloud hanging over McMillan, who is currently locked up in Rikers Island, denied bail twice. In their letter, the anonymous jurors note, "We would ask the court to consider probation with community service. We feel that the felony mark on Cecily's record is punishment enough." They urge against any further incarceration. With the grim prospect of two to seven years in prison, it would be the best of a bad scenario if the jurors' pleas are heeded.
The jury was banned from investigating the details of possible sentencing for McMillan's case until after offering a verdict. Their shock and remorse, however, is unacceptable. Lives are in your hands, jurors. Know better.
The jurors are right that a felony record alone — with or without attendant jail sentencing — is an indelible mark with ruinous consequences for those who carry it and must then navigate the contemporary world. The great lie is that justice materializes in the binary determinations of guilt or innocence.
As my friend and colleague Molly Crabapple noted for VICE, "the criminal justice system gets mixed up with justice. Square-jawed prosecutors will punish the wicked. The innocent will be redeemed." But owing to US prosecutors' immense power to garner plea deals, often leveraging the threat of lengthy minimum sentences if a defendant loses in trial — as McMillan well knows — 95 percent of criminal cases don't even go to trial. The courtroom and the verdict are only a patina of justice. McMillan's jurors' remorse offers a crucial lesson: "justice," and all its cruelties, does not reside in the proclamation of "guilty" or "innocent."
McMillan's juror's are not the first to be disturbed on learning the grave consequences of their convictions -- "tough-on-crime" sentencing laws, with results including life sentences for non-violent crimes like drug offenses, mean convicting juries can do more harm than they know. Take, for example, the life sentence with no chance of parole for a non-violent burglar Troy Ellis, in Louisiana.
“Clearly this was a situation where the punishment does not fit the crime,” said Randy Waller, one of the jurors who voted to convict Ellis by a 10-2 verdict and who came to regret his decision in light of the sentencing.
Similarly, Sharanda Purlette Jones has been incarcerated for more than 14 years in Texas, serving life without parole for a non-violent crack cocaine-related charge.
An ACLU report in 2012 noted that 3,278 prisoners are serving life without parole sentences for “drug, property, and other nonviolent crimes in the United States.”
The prevalence of excessive sentencing in the US should give all potential jurors pause for thought. It is my view that jury nullification is ever preferable to condemning another human to years behind bars on the belief they have committed a minor offense.
I hope that the letter asking for leniency is successful. I hope the jurors' remorse carries a haunting resonance with future juries. But I have little sympathy for a juror's shock or concern.
There is a system at greater fault than the jury which convicted McMillan. It is a system bound by expertise, such that its operations are often obfuscated and incomprehensible to the laypeople who make up juries. This asymmetry of knowledge and power is the precondition for McMillan's situation, and many others, in which convicting jurors — bound to some mythic legal "truth" — know not what they do. And lives are ruined, and cages of humans are filled.
Follow Natasha Lennard on Twitter: @natashalennard
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