By Alexa Gervasi, ACLR Featured Blogger

A pair in Michigan committing adultery are felons, facing thousands in fines and up to four years in prison.1 A person in Mississippi found guilty of using profanity in a public place, with two or more witnesses, may find himself with a $100 fine and spending up to thirty days in the county jail.2 For each act of premarital intercourse, individuals in Virginia may expect to pay a $250 fine.3 Criminal statutes concerned with regulating “morals” and “decency” are pervasive in our society, yet there is a disparity between those that are enforced and those that have been laughed out of relevance. This disparity can only be explained by examining the condemning eye of the public. As one scholar explained:

The essence of punishment for moral delinquency is in the criminal conviction itself. One may lose more money on the stock market than in a court-room; a prisoner of war camp may well provide a harsher environment than a state prison; death on the field of battle has the same physical characteristics as death by sentence of law. It is the expression of the community’s hatred, fear, or contempt for the convict, which alone characterizes physical hardship as punishment.4


            A true crime, one worthy of a criminal penalty, is one that must answer to the court of public opinion. A crime is conduct for which the criminal will face the moral condemnation of the community.5 Adultery, profanity, fornication—the desire to restrict each of these offenses can surely be justified. However, for some reason, society has chosen to remove these acts from the list of those offenses worthy of a criminal penalty. Whatever sparked this evolution in the community, causing it to view once condemnable actions as forgivable indiscretions, demonstrates the power of the people to change the landscape of substantive criminal law without the need for legislative interference.

On November 4, 2014, 69.4% of the voting population in the District of Columbia voted for Initiative 71, which would legalize the possession of small amounts of marijuana for personal use.6 This vote is evidence of an unmistakable change in the way the public views the use of marijuana. In 1969, when Gallup first polled the public, only twelve percent of people favored legalizing marijuana.7 Today, that number is up to fifty-two percent, with forty-seven percent of Americans admitting to having tried the substance at least once.8 D.C.’s vote and these Gallup polls demonstrate the evolution of what society determines to be amoral or delinquent.

Initiative 71, subject to federal oversight like all proposed laws in the District, must first survive congressional review. First through an omnibus spending bill, Representative Andy Harris attempted to prevent the enactment of the initiative by prohibiting the use of federal funds to enact marijuana legalization.9 Though the spending bill passed, D.C. lawmakers deny Representative Harris’ success because of the self-executing nature of the initiative.10 If D.C. lawmakers are correct, Initiative 71 must still pass one more hurdle before it can be effected. On January 16, D.C. Council Chairman Phil Mendelson submitted the initiative to Congress for a thirty-day review period, a standard for all D.C. laws.11 Facing clear opposition in Congress, D.C. needs to prepare its next moves should Congress choose to strike down the legislation.

Of course, there are legal routes that individuals and the District can take to fight for the initiative. But, there is more that the public can do. The court of public opinion is a powerful tool. The legislative branch is intended to reflect the will of the people, but where the law fails to adhere to the democratic process, it is up to society to rewrite the laws, a power that we should not be so quick to overlook.

As was previously noted, the essence of what makes a crime is the condemnation of the criminal. Thinking back to Gardner’s description of a criminal, does society express “hatred, fear, or contempt” for the person who relaxes on the weekend with a joint instead of Miller Lite? If the answer, for the community in general, is no, then why are fifty-two percent of all drug-related arrests for marijuana?12 Of the 8.2 million marijuana arrests that occurred between 2001 and 2010, eighty-eight percent were for possession alone.13 Where the laws are not changing to reflect changes in the moral landscape, it is up to the general public to alter the perception of these “crimes” until the ink of the penal codes loses its luster.

The first step in this process has already occurred; D.C. residents have spoken. Using the democratic process, citizens have expressed their desires by voting for legalization. The next step is for prosecutors to listen. In American criminal procedure, prosecutors are awarded vast prosecutorial discretion, limited only by equal protection and due process.14  With this in mind, it is entirely within the purview of a district attorney to choose to not prosecute for possession of marijuana. The U.S. Department of Justice has gone as far as to issue guidance to all United States attorneys regarding marijuana enforcement, highlighting that the DOJ “has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property.”15 This same discretion is available to prosecutors at the local level. In 2014, the Brooklyn district attorney’s office made such a decision, issuing a proposal to stop prosecuting those arrested for possession of small amounts of marijuana.16 This move is in direct response to New Yorkers who have expressed frustration that America continues “to tie up our court system with these petty marijuana arrests.”17 In areas, such as Brooklyn, where certain crimes are no longer prosecuted, the crime itself exists in name only, losing all functionality. Without the approval of Congress or legislative action, the strength of a law has been nearly eradicated because the public altered what it considers a “crime” and let those thoughts be known.

Where prosecutors continue to enforce unfavorable laws, however, change is more difficult. But not impossible. The highly contentious concept of jury nullification exists specifically for the purpose of allowing a jury of the defendant’s peers the opportunity to say that it disagrees with the charge. Essentially, jury nullification signals to the court that, in light of all of the evidence, the jury may believe the defendant is guilty, but is unwilling to find her deserving of punishment.18 There is no clearer expression of society’s interest, or lack thereof, in condemning a criminal than jury nullification. While judges have the right to remove a juror for an expressed intent to nullify, prior to a verdict, she is not required to do so.19 Jury nullification, once a supported and well-known right of jurors, has faced criticism in recent years. Some argue that nullification circumvents and undermines the democratic process; however, as Georgetown Law professor Paul Butler argues, “morality requires that unjust laws not be obeyed.”20 Where democracy and the legislature fail to protect the will of the people, it is the right of individuals to engage in lawful, self-help measures.21 Jury nullification has the ability to take the power of prosecution from the prosecutor.

At one time, people were criminalized for having affairs, cursing, or engaging in sexual activity outside the bounds of marriage. However, society’s definition of what acts deserve legal punishment has changed. Despite this transformation of thought, the laws themselves have not been altered, only how they are enforced. It is the power of the people to rethink morality. It is the power of the people to condemn or forgive. It is the power of the people to decriminalize.

Residents of D.C. discouraged by the negativity resonating from the Hill should take solace in knowing that the fight doesn’t end with the legislature. By continuing to voice its will, encouraging prosecutors to exercise prosecutorial discretion, and nullifying charges, the citizenry can decriminalize the possession of marijuana.