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

• Author: Taylor E. Whitten
• Pages: 919-955

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. T HE O RIGINS OF THE J URY T RIAL R IGHT ........................................... 926 B. U NINTENDED C ONSEQUENCES OF L EGISLATIVE D ISCRETION ................ 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. T HE V ALUE OF A J URY T RIAL ............................................................. 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. J URY T RIAL O PTION ......................................................................... 939 B. T HE D ANGEROUS M IDDLE G ROUND ................................................... 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. D ECRIMINALIZATION ........................................................................ 948 IV. IMPLICATIONS OF JURY TRIAL REMOVAL ................................................ 949 A. S TATE L EGISLATURE : S ETTING A T HRESHOLD .................................... 949 B. M ARIJUANA AS A P OSSESSION C RIME .................................................. 951 C. H OW S TATES C AN P RESERVE THE J URY T RIAL R IGHT ......................... 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 forfeiture 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 Sess. 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). 922 IOWA LAW REVIEW [Vol. 99:919 Representatives, it highlights the importance of states as key actors in the tumultuous process of classifying marijuana possession and setting appropriate penalties. 7 The benefits and costs of decriminalizing marijuana have been debated. Proponents of decriminalization highlight the decreased cost of prosecution and arrest, as well as the possible increase in revenue from fines. 8 Furthermore, proponents argue decreasing the penalty will not increase marijuana use because the act of possession is still illegal, albeit with less severe consequences. 9 Opponents counter that marijuana is a gateway drug that leads to other drugs. 10 They also describe the possible adverse health effects associated with marijuana consumption. 11 However, the policy arguments and legal implications for and against legalizing marijuana are beyond the scope of this Note. This Note will instead focus on the steps states are taking towards decriminalizing marijuana. Grappling with the push of the electorate to legalize marijuana, some states have decriminalized possession of small amounts of marijuana. 12 For example, Massachusetts treats possession of one ounce or less of marijuana as a civil offense similar to a traffic citation. 13 If an individual is caught with an ounce or less of marijuana, she will receive a citation, a $100 fine, and be required to forfeit her marijuana to the law enforcement officer. 14 On the other end of the spectrum, some states are staunchly opposed to marijuana reform, and they are considering increasing the penalties 7. Ending Federal Marijuana Prohibition Act, H.R. 499 (2013) (removing marijuana from the Controlled Substance Act); Wood, supra note 6. 8. See Deborah Maloff, A Review of the Effects of the Decriminalization of Marijuana , 10 CONTEMP. DRUG PROBS. 307, 316–20 (1981) (describing how...