919
Under the Guise of Reform: How
Marijuana Possession Is Exposing the
Flaws in the Criminal Justice System’s
Guarantee of a Right to a Jury Trial
Taylor E. Whitten
ABSTRACT: Recent Supreme Court decisions have restricted a criminal
defendant’s right to a jury trial. By setting the threshold to trigger a jury
trial right at six-months imprisonment, the Supreme Court once feared that
the legislature might classify serious crimes as petty, and take away a
defendant’s right to a jury trial. But what if the opposite happened? What if
the legislature classified an offense that Americans no longer believed was a
crime out of the reach of their input by eliminating the jury? This is what
has occurred in some states with minor marijuana possession. Even though
a majority of Americans believe that marijuana possession should be
legalized, some states are continuing to prosecute it as a crime without a
jury trial. While waiting for marijuana reform, thousands of defendants
will be prosecuted for a crime without the judicial check of a jury trial.
Perhaps the electorate will respond through their votes, but democracy takes
time, and at a cost to all the offenders who await judgment. This Note will
examine how this offense managed to fall through the cracks of the judicial
and legislative system at both the federal and state level. In highlighting
these issues, this Note argues that the justice system should correct its flaws
to prevent future offenses from suffering the same fate.
I. INTRODUCTION ...................................................................................... 921
II. IMPORTANCE OF THE JURY TRIAL RIGHT ................................................ 925
A. THE ORIGINS OF THE JURY TRIAL RIGHT ........................................... 926
B. UNINTENDED CONSEQUENCES OF LEGISLATIVE DISCRETION ................ 927
J.D. Candidate, University of Iowa College of Law, 2014; B.S.F.S., Georgetown
University, 2008. My many thanks to my family, especially my mom, Kathy Whitten for her
unwavering support and encouragement. A special thanks to Jaymin Parekh for a brilliant idea
and the Volume 98 and 99 editors and members of the Iowa Law Review for their dedication
and diligent efforts revising this Note.
920 IOWA LAW REVIEW [Vol. 99:919
C. THE VALUE OF A JURY TRIAL ............................................................. 928
1. Bench Trial vs. Jury Trial ....................................................... 929
2. Community Response ............................................................ 931
3. Jury Nullification & Acquittal ................................................ 932
4. Law Enforcement Accountability & Constitutional
Erosion .................................................................................... 936
III. STATE APPROACHES TO MARIJUANA POSSESSION .................................. 938
A. JURY TRIAL OPTION ......................................................................... 939
B. THE DANGEROUS MIDDLE GROUND ................................................... 940
1. Legislature’s Role: Decreasing the Criminal Penalty .......... 940
2. Court’s Role: Interpreting State Constitutions .................... 943
a. Arizona: Common Law Approach ....................................... 944
b. Florida: Malum in Se vs. Malum Prohibitum ................. 946
C. DECRIMINALIZATION ........................................................................ 948
IV. IMPLICATIONS OF JURY TRIAL REMOVAL ................................................ 949
A. STATE LEGISLATURE: SETTING A THRESHOLD .................................... 949
B. MARIJUANA AS A POSSESSION CRIME .................................................. 951
C. HOW STATES CAN PRESERVE THE JURY TRIAL RIGHT ......................... 951
1. States That Want to Preserve the Jury Trial Right ............... 952
2. States That Want to Use a Balancing Test ............................ 952
3. States That Want to Decriminalize Marijuana ..................... 954
4. State Research in the Future ................................................. 954
VI. CONCLUSION ......................................................................................... 955
2014] UNDER THE GUISE OF REFORM 921
I. INTRODUCTION
Americans’ views towards the legality of marijuana are changing, and
this shift has unintended consequences for an individual’s right to a jury
trial.1 In 2012, a Rasmussen poll found that 56% of Americans support
legalizing marijuana.2 Within the past forty years, Americans have drastically
shifted their perspective from one of adamant disapproval to ever-increasing
approval.3 Even with this overall growing trend, there are differences in
approval ratings depending on region and political party affiliation.4 As
elected officials and legislatures grapple with this tension, some states have
passed or are trying to pass legislation decreasing the penalty for marijuana
possession.5 At the federal level, legislators with increasing awareness of the
disparity in state decriminalization measures have sought to defer to the
states to control penalizing marijuana possession.6 Although the Ending
Federal Marijuana Prohibition Act did not leave the House of
1. See Elizabeth Mendes, New High of 46% of Americans Support Legalizing Marijuana ,
GALLUPPOLITICS (Oct. 28, 2010, 4:00 PM), http://www.gallup.com/poll/144086/new-high-
americans-support-legalizing-marijuana.aspx (describing a Gallup poll that shows an upward
trend in legalizing marijuana since 2000); Majority Now Supports Legalizing Marijuana, CTR. FOR
PEOPLE AND THE PRESS, PEWRESEARCH (April 4, 2013), available at http://www.people-
press.org/2013/04/04/majority-now-supports-legalizing-marijuana/ (finding that a majority of
Americans favor legalizing marijuana).
2. Lucia Graves, 56 Percent of Americans Favor Legal Marijuana in New Poll, HUFFINGTON
POST (May 22, 2012, 7:31 PM), http://www.huffingtonpost.com/2012/05/22/legalize-
marijuana-56-percent-rasmussen-poll_n_1537706.html (citing 56% Favor Legalizing, Regulating
Marijuana, RASMUSSEN REPORTS (May 17, 2012), http://www.rasmussenreports.com/public_
content/lifestyle/general_lifestyle/may_2012/56_favor_legalizing_regulating_marijuana).
3. See RASMUSSEN REPORTS, supra note 2 (“Approximately 8 in 10 Americans were opposed
to legalizing [marijuana] . . . in the late 1960s and early 1970s”). This article also mentioned
that, although medical marijuana is experiencing a downward trend in approval ratings, it is
still relatively high at 70%. Id.
4. Id. (describing how approval is higher in the West and among liberals than in the
South, the Midwest, and among conservatives).
5. For example, Massachusetts passed a law in 2009 that made marijuana possession of
one ounce or less a civil offense punishable by a fine and fo rfeiture of the marijuana. MASS.
GEN. LAWS ch. 94C, § 32L (2009), available at https://malegislature.gov/Laws/General
Laws/PartI/TitleXV/Chapter94C/Section32L; Ky. H. Journal, 2011 Reg. Sess., KY. REV. STAT.
ANN. § 218A.1422 (West Supp. 2013) (detailing the legislative history of KY. REV. STAT. ANN. §
218A.1422 that amended possession of marijuana from a Class A to a Class B misdemeanor); see
also Decrim Passes House by One Vote, Fails in Senate, MARIJUANA POLICY PROJECT,
http://www.mpp.org/states/new-hampshire/ (last updated Nov. 7, 2013) (describing how a
New Hampshire bill decreasing the penalty for half an ounce of marijuana to a violation passed
the House by a narrow margin, and failed in the Senate).
6. Ending Federal Marijuana Prohibition Act of 2011, H.R. 2306, 112th Cong. (1st S ess.
2011); see Daniel B. Wood, ‘Dramatic Change’ to Marijuana Laws? What Bill Before Congress Would
Do, CHRISTIAN SCI. MONITOR (June 24, 2011), available at http://www.csmonitor.com/USA/
Politics/2011/0624/Dramatic-change-to-marijuana-laws-What-bill-before-Congress-would-do
(discussing how the Ending Federal Marijuana Prohibition Act would take marijuana off the
schedule of controlled substances, and leave it to state legislatures to decide the legality of
marijuana).
