Allowing Defendants To Present Evidence of Prison Conditions To Convince Juries To Nullify: Can Only The Prosecutor Present "Moral" Evidence?

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Allowing Defendants to Present Evidence

of Prison Conditions to Convince Juries to
Nullify: Can Only the Prosecutor Present
Moral Evidence?
I. INTRODUCTION
In 1995, sixteen-year-old Rodney Hulin entered an adult prison to begin
serving an eight-year sentence that he would not complete. 1 Hulin was
unable to bring his plight to the publics attention, nor was he able to
convince prison officials to keep him safe. However, he was able to pass
his story on to his parents. In a hearing before the Committee on the
Judiciary, his mother testified as follows:
[O]ur worst nightmare came true. Rodney wrote us a letter telling us
he had been raped. A medical examiner had confirmed the rape. The
doctor found tears in his rectum and ordered an HIV test, because, he
told us, one-third of the prisoners there are HIV positive.
Only that was the beginning. Rodney knew if he went back into the
general [prison] population, he would be in danger. He wrote to the
authorities, requesting to be moved to a safer place. He went through all
the proper channels, but he was denied.
After the first rape, he returned to the general population. There, he
was repeatedly beaten and forced to perform oral sex and raped. He
wrote for help again. In the grievance letter, he wrote, I have been
sexually and physically assaulted several times, by several inmates. I
am afraid to go to sleep, to shower, and just about anything else. I am
afraid that when I am doing these things, I would die at any minute.
Please, sir, help me.
Still, officials told him that he did not meet the emergency criteria.
We all tried to get him to a safe place. I called the warden, trying to
1
.
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONSCASE
HISTORY
OF
RODNEY
HULIN
(2001),
http://www.hrw.org/reports/2001/prison/rodney_hulin.html [hereinafter CASE HISTORY OF
RODNEY HULIN].
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figure out what was going on. He said, Rodney needs to grow up. He
said, This happens every day. Learn to deal with it. It is no big deal.
....
On the night of January 26, 1996, my son hung himself in his cell. He
was 17 and afraid and ashamed and hopeless. He laid in a coma for the
next 4 months before he died.2
Hulin was convicted of arson for setting a dumpster on fire in his

neighborhood.3 The damage from the fire totaled less than $500. 4 Although
Hulins experience has prompted a wealth of commentary on prison
reform,5 that will not be the focus of this article. This Note focuses on an
earlier step in the incarceration process: the evidence a jury is allowed to
consider. It is the jury, after carefully weighing all the admitted evidence
(as opposed to all the evidence a jury might consider relevant), that
ultimately decides if the defendant will be incarcerated. 6
It is difficult to imagine many juries that would have convicted Hulin if
they knew the ultimate consequences of such a verdict. Of course, no jury
can ever know in advance exactly how someones life will play out in the
future. Defense attorneys however, if given the opportunity, can educate
the jury about the conditions of prisons where a defendant could be sent if
convicted.
Current jurisprudence scoffs at such an idea. 7 In Shannon v. United
States, Justice Thomas endorsed the principle that juries should not
consider the consequences of their verdicts, describing such ignorance as a
fundamental division of labor between judge and jury. 8 Despite the
seemingly well-settled notion that evidence of prison conditions has no
place in a typical trial, many eras throughout United States history have
2
.
The Prison Rape Reduction Act of 2002: Hearing Before the S. Comm. on the
Judiciary,
107th
Cong.
8-9
(2002),
available
at
http://www.access.gpo.gov/congress/ senate/pdf/107hrg/87677.pdf
[hereinafter Prison Rape Reduction Act of 2002] (testimony of Linda
Bruntmyer).
3
.
Id.
.
Id.
5
.
See, e.g., CASE HISTORY OF RODNEY HULIN, supra note 1; Linda Chavez, A
National Disgrace in the Nations Prisons, CYBERCAST NEWS SERVICE, July 2, 2003,
http://www.cnsnews.com/ViewCommentary.asp?
Page=/Commentary/archive/200307/COM20030702e.html (last visited Apr. 8, 2008).
6
.
See FED. R. EVID. 103(c) (In jury cases, proceedings shall be conducted . . . so as
to prevent inadmissible evidence from being suggested to the jury by any means.); FED. R.
EVID. 104(a) (stating that preliminary questions regarding the admission of evidence shall
be determined by the judge, not the jury).
7
.
See Shannon v. United States, 512 U.S. 573, 579 (1994).
8
.
Id.
4
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considered, and often praised, the role of the jury in serving as a moral
check on the laws the government might pass. 9 The government has always
maintained the right of the jury to nullify the law if the jury finds the
defendant does not deserve criminal condemnation, or if it considers the
punishment that will follow a conviction too harsh, despite clear violation
of a law.10
Jury nullification in America is celebrated as far back as 1735, where in
the case of John Peter Zenger, his lawyer asked the jury to disregard the
judges instructions on the state of the law. 11 The members of the jury,
moved by their own consciences, found that a man should not be convicted
as a criminal for speaking out against the government, despite clear
evidence that Zenger had violated the law of seditious libel. 12 This verdict
established the precedent that a jury could acquit a defendant if it felt that
the law he was charged with violating was unjust. 13
Prison conditions were first considered as a basis for jury nullification in
a 1771 case.14 The defendants lawyer, John Adams, told jurors:
that if they disagreed with a judges instructions on the law, each juror
with any feeling or conscience should consider it not only his right
but his duty . . . to find the verdict according to his own best
understanding, judgment and conscience, tho[ugh] in direct opposition
to the direction of the court.15
While Adamss language could suggest that he was trying to convince the
jury to acquit on the basis of the law being unjust, the facts of the case
seem more likely to implicate an appeal to the jury that the punishment
imposed would be too harsh.16 The defendant in this case was facing
debtors prison for failure to repay a debt. 17 It is much more likely that a
jury would find prison too harsh a punishment for such a crime, rather than
the alternativethat a jury would vote for acquittal under the belief that
people should not have to pay their debts.18
9
.
See United States v. Barnett, 376 U.S. 681, 759-60 (1964); PETER IRONS, THE
MEN AND WOMEN WHOSE CASES AND DECISIONS HAVE SHAPED OUR CONSTITUTION: A
PEOPLES HISTORY OF THE SUPREME COURT 5 (1999).
10
.
See Barnett, 376 U.S. at 759-60; IRONS, supra note 9, at 5.
11
.
IRONS, supra note 9, at 5.
12
.
Id.
13
.
Id.
14
.
See id.
15
.
Id.
16
.
See id.
17
.
Todd J. Zywicki, Bankruptcy Law as Social Legislation, 5 TEX. REV. L. & POL.
393, 395-96 (2001) (discussing the history of debtors prisons as punishment for failure to
repay debts).
18
.
See id. Individual bankruptcy has been morally condemned throughout most of
human history. Id. at 395.
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The practice of informing juries of their right to nullify continued in full
force until 1895, when the Supreme Court declared that juries would still
have the right to nullify, but they were not to be told of this right. 19 Jury
nullification, according to the D.C. Circuit Court, is only to be used in the
rarest of circumstancesthat is, when a jury cannot in good conscience
convict a defendant.20 This Note advocates that evidence of prison
conditions should be admissible because it is relevant to the jurys ability to
accurately consider its own conscience. In this manner, juries are not
specifically instructed that they have the right to nullify, but they are at
least given more information that might be a proper reason for them to do
so.
Recently, the Supreme Court decided two cases involving jury
members rights to consider the consequences of their verdicts: Shannon v.
United States21 and Old Chief v. United States.22 While not specifically
addressing the issue of admitting evidence of prison conditions, they have
opened the door for controversy on this topic.
Part II of this Note will give an overview of Shannon and Old Chief and
discuss how they conflict with each other in light of the Federal Rules of
Evidence (FRE) 401,23 402,24 and 403.25 This will serve as the basis for Part
III, which will discuss the argument that Old Chief, in allowing the
prosecution to present moral evidence, must accord defendants the same
right. Part IV will outline past attempts by defense attorneys to submit
evidence of prison conditions in various contexts, and examine when courts
have admitted such evidence. Finally, Part V will address the policy
reasons behind allowing a jury to consider the consequences of the verdict
it renders.
II. CONFLICTS AMONG OLD CHIEF, SHANNON, AND THE FEDERAL RULES OF
EVIDENCE REGARDING RELEVANCE STANDARDS
A. Old Chief v. United States
The Old Chief Court claims in a footnote that [w]hile our discussion
19
.
See Sparf v. United States, 156 U.S. 51, 105-06 (1895); see also David C. Brody,
Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification
Right, 33 AM. CRIM. L. REV. 89, 102 & n.109 (1995) (explaining that even though the plain
language of the Courts opinion suggests that it is outright banning the practice of jury
nullification, courts have interpreted Sparf as instead banning the practice of informing
juries of their nullification powers).
20
.
United States v. Dougherty, 473 F.2d 1113, 1136-37 (D.C. Cir. 1972).
21
.
512 U.S. 573 (1994).
22
.
519 U.S. 172 (1997).
23
.
FED. R. EVID. 401.
24
.
FED. R. EVID. 402.
25
.
FED. R. EVID. 403.
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has been general because of the general wording of [Federal] Rule [of
Evidence] 403, our holding is limited to cases involving proof of felon
status.26 The Court offers little in the way of principled reasoning for why
its holding should not be construed more broadly, nor any definite lines for
attorneys to predict how the Court will respond to future cases involving
the introduction of moral evidence in different settings. 27 This is
especially unhelpful in light of the groundbreaking dicta found in the
opinion.28 Certainly the Court never spoke directly of how evidence of
prison conditions could fit into such a moral framework. However, Justice
Souter, writing for the majority, has exposed a line of reasoning which
counsels that such evidence should be admitted, even if the legal basis for
admitting such evidence has been largely ignored in the courtrooms of the
past century. 29
To understand this reasoning, a brief recounting of the facts and
arguments of Old Chief is necessary. Johnny Lynn Old Chief was arrested
for assault with a dangerous weapon, using a firearm in relation to a crime
of violence, and for possession of a firearm by a felon. 30 Before the trial,
Old Chief offered to stipulate that he was indeed a felon within the
meaning of the crime with which he was being charged, so the prosecutor
would not inform the jury of the nature of his previous felony. 31 The
prosecutor opposed the offer to stipulate and informed the jury that Old
Chief had been convicted on a prior occasion for assault resulting in serious
injury.32
Old Chief was ultimately convicted and feared his conviction was the
result of unfair prejudice, because the nature of his prior felony was
irrelevant at the current trial.33 The only purpose in revealing it would be
either to inflame the jurors or to convince them that Old Chief had the
character of a hardened criminal. 34 Ultimately, the Supreme Court held that
the trial court had erred in allowing the prosecution to admit the nature of
Old Chiefs previous conviction over his offer to stipulate. 35 The Courts
26
.
Old Chief, 519 U.S. at 183 n.7.
.
See Todd E. Pettys, Evidentiary Relevance, Morally Reasonable Verdicts, and
Jury Nullification, 86 IOWA L. REV. 467, 473 (2001).
28
.
See Old Chief, 519 U.S. at 187-88.
29
.
See generally Sparf v. United States, 156 U.S. 51, 180-81 (1895) (Gray, J.,
dissenting).
30
.
Old Chief, 519 U.S. at 174. For a more detailed description of the third charge
against Old Chief see 18 U.S.C. 922(g)(1) (2000), explaining there are certain classes of
prior felonies that do not qualify as the basis for being a felon in this crime.
31
.
Old Chief, 519 U.S. at 175.
32
.
Id. at 177.
33
.
Id. at 175, 177.
34
.
See id. at 185.
35
.
Id. at 191.
27
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holding rests largely on the basis that admitting such evidence is in
violation of FRE 403.36 Specifically, the Court held that allowing such
evidence would not be permissible in light of its minimal probative value
and its high risk of unfair prejudice to the defendant. 37 However, the Court
makes clear that this is a narrow holding, only applicable to cases involving
a violation of 18 U.S.C. 922(g)(1) (the felon in possession of a firearm
statute).38 It is with three sentences of dicta that Justice Souter seemingly
contradicts the bulk of his own opinion and exposes a fundamental problem
with the Federal Rules of Evidence. Justice Souter states that a Rule 403
claim will fail in most similar circumstances: 39
Jury duty is usually unsought and sometimes resisted, and it may be as
difficult for one juror suddenly to face the findings that can send
another human being to prison, as it is for another to hold out
conscientiously for acquittal. When a jurors duty does seem hard, the
evidentiary account of what a defendant has thought and done can
accomplish what no set of abstract statements ever could, not just to
prove a fact but to establish its human significance, and so to implicate
the laws moral underpinnings and a jurors obligation to sit in
judgment. Thus, the prosecution may fairly seek to place its evidence
before the jurors, as much to tell a story of guiltiness as to support an
inference of guilt, to convince the jurors that a guilty verdict would be
morally reasonable as much as to point to the discrete elements of a
defendants legal fault.40
Nowhere in the Rules is there any mention of evidence being admissible

on the basis of its ability to convince the jurors that a guilty verdict would
be morally reasonable.41 In fact, FRE 403s barring of evidence where
probative value is substantially outweighed by [a] danger of unfair
prejudice, confusion of the issues, or misleading the jury, seems in its
plain language to directly contradict Justice Souters statement. 42 The only
manner in which FRE 403 can be reconciled with Justice Souters
statement is to make a finding that the jurors morals with respect to their
36
.
FED. R. EVID. 403 (Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.).
37
.
.
Id. at 178-79.
39
.
Regardless of his intentions, Justice Souters argument undermines the meaning
and purpose of Federal Rule of Evidence 403.
40
.
Old Chief, 519 U.S. at 187-88.
41
.
Id. at 188.
42
.
FED. R. EVID. 403.
38
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decision to send a defendant to prison constitute a relevant issue for the
court to consider, and that such feelings do not per se prejudice the
defendant unfairly. 43
B. Relevance Under the Federal Rules of Evidence
Federal Rule of Evidence 402 states that only relevant evidence is
admissible at trial.44 Relevant evidence is defined in Rule 401 as evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence. 45 Again, it is apparent that
Justice Souters statement marks a departure from the Courts usual
jurisprudence as to what constitutes relevancy. Justice Souter is injecting
the jurys morals into facts of consequence, such that evidence can be
presented on the grounds of addressing such an issue, regardless of the
relevance of the evidence with respect to the cold facts of the alleged
crime.
Working within the traditional confines of relevance as defined under
the Federal Rules, the prosecution has been limited to presenting evidence
that: (1) increases the likelihood that a required element of a crime has been
met; (2) decreases the likelihood that an element of an affirmative defense
has been met; or (3) either increases or decreases the credibility of a
witness.46 It is difficult indeed to fit evidence that will convince the jurors
that a guilty verdict would be morally reasonable 47 into one of these
categories. There are currently no crimes that contain the defendants moral
culpability as an element of the offense. Similarly, the fact that a defendant
is morally upstanding is not a defense. 48 The one area where moral
character might seem relevant is in evaluating the defendants credibility.
However, FRE 403 clearly bars such evidence because of its
extraordinarily high degree of unfair prejudice and its relatively low
43
.
See id.; Old Chief, 519 U.S. at 187-88.
.
FED. R. EVID. 402 (All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Acts of Congress, by these rules, or by
other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which
is not relevant is not admissible.). Rule 402 is merely a baseline, showing that not all
relevant evidence is admissible.
45
.
FED. R. EVID. 401.
46
.
See Pettys, supra note 27, at 474-76.
47
.
48
.
See FED. R. EVID. 404 advisory committees note. The committee discusses the
rare exception of proving chastity in a criminal seduction case. Needless to say, this is not
an exception that bears much consideration in the standard law enforcement practices of the
twenty-first century. The committees further allowance for proving competency in a case
involving drunk driving is also distinguishable from moral evidence because competency is
a necessary element for many criminal actions. The evidence is still not to be used for the
purpose of convincing the jury that the defendant is a bad man. See id.
44
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probative value.49
Thus, Justice Souters holding is expanding the zone of evidence that is
relevant, narrowing the definition of what constitutes unfair prejudice, or
more likely, doing both. Regardless, it is undeniable that he has effectively
broadened the scope of evidence that can be admitted to a jury. 50
C. Shannon v. United States
While Justice Souters statement might appear remarkable simply for its
seeming inconsistency with the general interpretations of the Federal Rules
of Evidence, it is even more astonishing in light of the Courts decision in
Shannon v. United States only three years earlier.51 It may be of some
significance to note from the outset that Justice Souter does not address
Shannon anywhere in his opinion.52
In Shannon, the Court dealt with the issue of whether a judge should be
required to instruct the jury on the consequences of rendering a verdict of
not guilty by reason of insanity (NGI verdict). 53 In support of the Courts
decision that the jury should not be informed as to the consequences of this
type of verdict, Justice Thomas articulated that [i]nformation regarding
the consequences of a verdict is . . . irrelevant to the jurys task.
Moreover, providing jurors sentencing information invites them to
ponder matters that are not within their province, distracts them
from their factfinding responsibilities, and creates a strong possibility
of confusion.54 This reasoning goes to the heart of Rule 403, which
Justice Souter seems to have interpreted quite differently in Old Chief.
Justice Thomas then continued along a different line of reasoning,
contradicting himself within a single paragraph. He repeated that
juries are not to be instructed as to the consequences of their
verdicts because it could invite them to base their verdict upon
improper grounds, but then suggests that jurors follow their
instructions.55 If jurors are properly instructed, and they follow such
49
.
See FED. R. EVID. 403. The idea that someone is a bad person does not present
reliable grounds for establishing whether such person is telling the truth on any particular
occasion. It is this high degree of unreliability that ultimately lowers the probative weight of
such morally based evidence.
50
.
See generally, Pettys, supra note 27, at 477-83 (discussing what the author refers
to as Old Chiefs Enhanced Relevance Model).
51
.
512 U.S. 573 (1994). The case also offers further discussion of the consequences
that follow a verdict of not guilty by reason of insanity (NGI verdict) and a verdict of not
guilty and how they differ. It also presents the argument that most jurors are unaware of this
distinction and possibly arrive at an incorrect verdict precisely b ecause of this lack of
knowledge. See id.
52
53
54
55
.
.
.
.
See Old Chief, 519 U.S. 172.

Shannon, 512 U.S. at 578.
Id. at 579.
Id. at 585 (citation omitted).
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instructions, it is not possible that they will arrive at the incorrect verdict.
Thus, if a jury is instructed not to base its decision on the consequences of
its verdict, but the jury is informed of the cons equences, according to
Justice Thomas, this still should not result in the jurys disregard of
the judges instructions.56
Justice Thomas gives an example that jurors would presumably acquit

defendants when the Government fails to meet its burden of proof, even
when convinced the defendant is highly dangerous and should be
incarcerated.57 This statement is proffered with the concession that our
judicial system necessarily assumes juries will take such action. 58
Regardless of the naivet of such a statement, Justice Thomas is suggesting
that jurors will not follow instructions to convict a guilty defendant if
provided with information about the consequences of their verdict, but will
follow instructions by properly acquitting a defendant where the
Government has not adequately proved its case. 59 Why would a jury,
in the first instance, if given information about the consequences of its NGI
verdict, render an improper judgment, while a jury in the second instance,
which clearly understands the consequences of its acquittal, render a
proper judgment?
As Justice Stevens makes clear in a well-reasoned dissent, even if,
as the Court seems prepared to assume, all jurors are already

knowledgeable about [the consequences of NGI verdicts], surely telling
them what they already know can do no harm. 60 Such a dichotomy shows
the Courts pro-prosecution bias in assuming that the jury will only disobey
its instructions in an attempt to circumvent the law for the defendants
benefit. This argument assumes that not following a judges
instructions is itself inherently against the law. The doctrine of jury
nullification unfailingly argues against such an idea.
The Courts decision relies on the basis that, during a trial, juries
determine the facts while judges evaluate the law. 61 This basic division of
labor is assumed to be a fundamental principle of American law. 62
However, this division of labor contradicts the jurys right of nullification,
which is not only a firmly solidified facet of criminal jurisprudence, but has
56
.
See id.
.
Id.
58
.
Id. Justice Thomas offers no support for this strong assumption, other than to state
that such an assumption is necessary.
59
.
Id. at 578-79, 585.
60
.
Id. at 592 (Stevens, J., dissenting).
61
.
Id. at 579.
62
.
Id.
57
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been codified in the constitutions of Maryland, 63 Indiana,64 and Georgia.65
While these state constitutions have no binding effect on the Federal Rules
of Evidence as applied to federal courts, they do clearly show that the basis
upon which Justice Thomass argument relies is not as solid as he makes it
out to be.66 Additionally, at least ten legislatures introduced bills or
proposed amendments to state constitutions that would require courts to
inform juries of their absolute right to extend mercy to obviously guilty
defendants . . . .67 While none of these measures were enacted into law,
the simple fact of their existence belies the conclusory nature with which
the Supreme Court has dismissed the idea of informing juries of their
nullification powers.
D. Misapplication of Precedent Results in the Shannon Courts
Incorrect Holding: Justice Stevenss Dissent
The more realistic assessmentthat juries do consider the consequences
of their verdicts, despite any instructions to the contraryis taken up in
Justice Stevenss dissent.68 Justice Stevens points out that the majority in
Rogers v. United States69 articulated the principle that juries should not
consider the consequences of their verdict[s]. 70 A closer examination of
the procedural facts in the Rogers trial reveals that the case actually
supports the idea that juries should be informed about the consequences of
their verdicts and that juries are truly concerned about such issues. 71 During
the trial, the jury asked the judge whether it could submit a verdict of
[g]uilty as charged with extreme mercy of the Court. 72 Although the
judge accepted the jurys submission, the Supreme Court overturned the
63
.
MD. CONST. Declaration of Rights art. XXIII (In the trial of all criminal cases,
the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon
the sufficiency of the evidence to sustain a conviction.).
64
.
IND. CONST. art. I, 19 (In all criminal cases whatever, the jury shall have the
right to determine the law and the facts.).
65
.
GA. CONST. art. I, 1, 11(a) (In criminal cases . . . the jury shall be the judges
of the law and the facts.). For further discussion of constitutional recognition of jury
nullification powers in Maryland, Indiana, and Georgia, see Richard St. John, License to
Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking,
106 YALE L.J. 2563, 2566-74 (1997).
66
.
These three state constitutions, while codifying the right of a jury to nullify in a
criminal trial, still do not give judges or attorneys the right to inform the jury that they
possess this power. As such, these states evidentiary rules are, practically speaking, not
affected differently than any of the other states.
67
.
Brody, supra note 19, at 89-90.
68
.
Shannon v. United States, 512 U.S. 573, 591 (1994) (Stevens, J., dissenting).
69
.
422 U.S. 35 (1975).
70
.
Shannon, 512 U.S. at 590 (Stevens, J., dissenting).
71
.
Id. at 591.
72
.
Id. at 590 (quoting Rogers, 422 U.S. at 36).
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ruling commenting that the judges acceptance was misleading because it
did not advise the jury that their recommendation . . . would not be
binding.73 While the Rogers Court arrived at the same legal conclusion as
the Shannon Court, Stevens points out that the significance of Rogers was
not the Courts holding that informing the jury as to the consequences of its
verdict was improper.74 Instead, he asserted that Rogers instructs that (1)
juries consider the consequences of their verdicts when making their
decisions, and (2) a verdict rendered as a result of failing to instruct the
jury about such consequences should be overturned when the failure to do
so prejudices the defendant (as opposed to the prosecution). 75 Justice
Thomass statement that juries are not to consider the consequences of their
verdicts is indeed difficult to reconcile with the outcome in Rogers.76 In
Rogers, the Court overturned the jurys decision because they considered
whether the defendant would be shown leniency at sentencing. 77 If Justice
Thomass contention is correct that a jurys conception of what its verdict
means at the sentencing stage is truly irrelevant, 78 it should not matter what
the jury thinks the consequences of its verdict will be. Why should the
Court overturn a conviction that was obtained where the jury did not
understand the consequences of its verdictas in Rogersbut uphold
another decision where the jury may have mistaken the consequences of its
verdictas in Shannon? Even more striking is that the jurys lack of
knowledge was the central issue in both cases, 79 yet the Court settled on
opposing justifications in each instance.
III. OLD CHIEF OPENS THE DOOR FOR PRESENTING EVIDENCE OF PRISON
CONDITIONS IN ORDER TO BALANCE THE MORAL EVIDENCE ADMISSIBLE
BY THE PROSECUTION
A. The Prosecutions Right to Present Moral Evidence
The Old Chief Court, in the process of explaining how prosecutors need
to be afforded the opportunity to present evidence to morally convince the
jury that incarceration is a proper punishment for a defendant, 80 should
have realized that defendants must be afforded similar opportunities. The
73
.
Id. at 590-91.
.
Id. at 591.
75
.
Id.
76
.
See id. at 579.
77
.
Rogers v. United States, 422 U.S. 35, 40-41 (1975). While the cases had similar
outcomes of disallowing juries to consider the consequences of their verdicts, Rogers
concerned prejudice toward the defendant while Shannon concerned prejudice toward the
prosecution. See id.; Shannon, 512 U.S. at 587-88.
78
.
Shannon, 512 U.S. at 579.
79
.
Id.; Rogers, 422 U.S. at 40.
80
.
Old Chief v. United States, 519 U.S. 172, 188 (1997).
74
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Courts statement that it may be as difficult for one juror suddenly to face
the findings that can send another human being to prison, as it is for
another to hold out conscientiously for acquittal, 81 shows that the need for
such evidence is just as prevalent for the defendant as for the prosecution.
The Court specifically addressed the unease that may be felt by some jurors
who may slant toward acquittal and others who may slant toward
conviction.82
Even before Old Chief, prosecutors were, at least to a degree, already
afforded the right to inform jurors that they could legally consult their
consciences in making a decision.83 During closing argument in United
States v. Alloway, the prosecutor told the jury, You the jurors, are called
upon in this case to be the world conscience of the community. And I m
calling on this jury to speak out for the community and let the John
Alloways know that this type of conduct will not be tolerated . . . .84
While the prosecutor did not tell the jury to disregard substantive evidence
and base its decision to convict upon personal feelings that the defendant is
a bad person, the only reason for offering such a statement was to push the
jury, however slightly, in that direction. However, after the Courts holding
in Old Chief, prosecutors can present actual substantive evidence that goes
to supporting the idea that the defendant is bad and deserves
punishment.85 While defense attorneys may also discuss the positive
attributes of their clients during opening and closing arguments, they do not
have the power to suggest that the jury can use these attributes as a basis
for acquittal.86 This would be the equivalent of contradicting the jury
instructions, which state that the jury must apply the law as stated by the
court.87
B. Evening the Playing Field: Allowing Defendants to Present the
Moral Evidence of Prison Conditions
Allowing defendants to present evidence on the conditions of prisons
where they could be sent if convicted is similar in nature to the evidence
deemed acceptable by the Old Chief Court. It does not outright ask the
jurors to disregard any of the substantive evidence, but gives them a basis
for deciding whether a bad person deserves a certain level of punishment.
In many ways, such evidence is more appropriately admissible than the
moral evidence Justice Souter believes prosecutors should have the right to
81
82
83
84
85
86
87
.
.
.
.
.
.
.
Id. at 187.
Id.
See United States v. Alloway, 397 F.2d 105, 113 (6th Cir. 1968).
Id.
See Old Chief, 519 U.S. at 187-88.
See Pettys, supra note 27, at 518.
See id.
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present.88
Old Chief exposes two primary rationales that support admitting prison
conditions into evidence in a criminal trial. 89 First, prison conditions are
always relevant within the meaning of FRE 403.90 Looking to the bases on
which a jury is allowed to render a verdict, nowhere in any accepted
jurisprudence is there a right for the jury to base a conviction solely on
morals.91 However, juries are allowed to acquit for exactly such a reason. 92
Thus, any piece of evidence that influences the jury as to whether the
punishment following conviction is morally appropriate will be relevant.
Second, the defendants choice to present evidence of prison conditions
cannot unfairly prejudice the jury against the government, let alone unfairly
prejudice them to such an extent as would substantially outweigh probative
value.93 Acquitting on the grounds that punishment is too harsh in relation
to the crime is not an improper ground on which the jury can base its
decision.94
88
.
.
See id. at 187-88. Although Justice Souter is referring to the prosecutors ability to
present evidence that will convince a jury that a guilty verdict is appropriate, there is
nothing in his underlying reasoning suggesting why these principles should also not apply in
reverse for the defendant.
90
.
See id. at 181-82.
91
.
FED. R. EVID. 404 advisory committees note (discussing the long history of
generally disallowing the jury to consider circumstantial use of character evidence out of
fear that a jury will decide to convict on the basis that it thinks the defendant is a bad person
and should be punished). Justice Souters argument should not be misconstrued as
vindicating the already well established exceptions for when character evidence is
admissible; instead, he is arguing for acceptance of a new class of character evidence that
had formerly been considered unfairly prejudicial and, in certain circumstances, irrelevant.
See Old Chief, 519 U.S. at 179.
92
.
See IRONS, supra note 9, at 5. While it is feasible to argue that acquitting for such
a reason is proper because the jury can acquit a defendant for any reason, such an extreme
stance need not be taken. Instead, the jurys verdict can be justified on the ground that it
evaluated the evidence which it had a duty to consider: whether society approves of the
punishment for the crime alleged. See id.
93
.
Federal Rule of Evidence 403 only excludes relevant evidence when the
probative value is substantially outweighed by the danger of unfair prejudice. FED. R.
EVID. 403 (emphasis added). This burden of finding that probative value is substantially
outweighed as opposed to merely outweighed in general, is of practical significance and can
be seen as an intentionally increased burden when contrasted with such language as found in
Federal Rule of Evidence 609. [E]vidence that an accused has been convicted of such a
crime shall be admitted if the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused. FED. R. EVID. 609. Note the lack
of a requirement for probative value to substantially outweigh prejudicial effect in Rule
609.
94
.
See Brody, supra note 19, at 118-20.
89
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1. Relevance under Old Chief
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While prison conditions are always relevant in a criminal trial, the

conditions described can only remain relevant as long as the evidence
pertains to prisons where a criminal may be sent. For example, a defendant
should not be allowed to elicit completely free testimony from Hulins
mother95 or stories of similar accounts from exceptionally violent prisons,
if the only places the defendant can feasibly be incarcerated are of a
completely different character. 96 These types of witnesses may still have a
role in a trial where the defendant will be sent to a less violent prison. Such
witnesses should still be allowed to testify concerning what conditions a
prisoner can expect to endure if he or she is one of the few inmates who is
victimized. Simply because the probability of abuse might be lower in
certain cases does not mean that the possibility should be completely
discarded.97
This might call for a limiting instruction from the judge telling the jury
that such evidence on prison conditions is only to be considered as an
explanation of what occurs in prison abuse situations, not as evidence that
suggests this particular defendant is likely to be abused in prison. 98 If,
.
Prison Rape Reduction Act of 2002, supra note 2, at 8-9.
.
The fact that a defendant, if found guilty, will only be sent to a minimum security
prison does not automatically ensure that the defendant will be sent to a nonviolent prison.
While minimum security prisons in general may tend to have lower incidence rates of
violence, each prison needs to be evaluated on an individual basis. Conversely, not all
maximum security prisons are automatically endemic with violence. See Mary K. Stohr,
Lessons in Corrections: A Report Submitted to the Commission on Safety and Abuse,
Public Hearing 3, at 3 (Nov. 2, 2005) (authors statements), http://www.prisoncommission.
org/statements/stohr.pdf (describing how many maximum security prisons are relatively
safe). See generally, DAN WALKER, THE MAVERICK AND THE MACHINE: GOVERNOR DAN
WALKER TELLS HIS STORY (2007) (describing brutal conditions in a minimum security
prison).
97
.
See Faretta v. California, 422 U.S. 806, 834 (1975) (Personal liberties are not
rooted in the law of averages.).
98
.
For example, the following testimony from a former or current inmate might be
presented:
95
96
[An inmate] publicly humiliated and degraded me, making sure all the inmates
and gaurds [sic] knew that I was a queen and his property. Within a week he was
pimping me out to other inmates at $3.00 a man. This state of existence continued
for two months until he sold me for $25.00 to another black male who purchased
me to be his wife.
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS-SLAVERY (2001),
available at http://www.hrw.org/reports/2001/prison/report5.html#_1_36 (quoting Letter
from E.S., Michigan inmate, to Human Rights Watch (Oct. 4, 1996)). A judge would instruct
the jury, after hearing such testimony, that it was not to consider the evidence as in any
manner indicating that the defendant could be sent to the same prison as the witness or to a
prison where such sexual slavery has occurred. Another witness would have to be used to
draw the connection to the types of prisons where the defendant could be sent.
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however, the witness recounts a story of sexual abuse in a prison where the
defendant could be sent, and couples his or her account with testimony that
such scenarios of violence are common at the prison, then no limiting
instruction would be required. This type of evidence does not present the
problems previously discussed where juries frequently ignore limiting
instructions99 because the judge is simply clarifying the witnesss testimony
instead of telling the jury to disregard information it might otherwise want
to consider.100
If the defense cannot find a witness who can testify as to the conditions
of a prison where he or she could be sent, the defense could break the
evidence down into testimony from two witnesses: one witness could
testify to the conditions in a particular prison, while another witness could
testify concerning the propensity for violence at the prisons where this
defendant may be sent. While the government is free to point out that the
defendant could be sentenced to a prison in a number of different locations
or transferred from one prison to another, this does not make the
defendants evidence regarding prison conditions irrelevant; it merely
lowers the evidences probative value. 101 However, the governments
choice to reveal this information could act as a double-edged sword; while
it lessens the weight of the evidence concerning the defendants sentence to
a particularly violent prison, it could also convince the jury that even if the
defendant is sentenced to a relatively safe prison, he or she could be
transferred to a much more dangerous one in the future.
2. Unfair prejudice under Old Chief
Turning to the issue of unfair prejudice, the Old Chief Courts analysis
of the prosecutions right to present moral evidence 102 must be examined
from the differing perspectives of the defendant and the prosecution. Old
Chief ultimately held that, while the prosecution is entitled to present
evidence that convinces the jury that a conviction is the morally correct
decision, the particular evidence offered by the prosecution in this case
99
.
See Shannon v. United States, 512 U.S. 573, 592-93 (1994) (Stevens, J.,
dissenting).
100
.
Even if the prosecution thought the limiting instruction was still not enough, the
government would always be free to present its own witnesses to testify that the defendants
prospective locations of incarceration are not of the nature described by the defendants
witness.
101
.
FED. R. EVID. 401 advisory committees note. Evidence is relevant if it has a
tendency to make the existence of the fact to be proved more probable or less
probable. Id. The standard of probability under the rule is more . . . probable than it
would be without the evidence. Any more stringent requirement is unworkable and
unrealistic. Id. The committee is recognizing the fact that not all evidence which might be
relevant is guaranteed to be highly probative standing alone. This does not call for the
exclusion of such evidence under relevance grounds.
102
.
See Old Chief v. United States, 519 U.S. 172, 187-88 (1997).
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created a sufficiently unfair level of prejudice that substantially outweighed
its probative value.103 The concession that such moral evidence was
relevant and was only excludible because of its high risk of unfair prejudice
should allow similar, emotionally charged evidence to be offered by the
defendant. The key distinction involves a determination of what constitutes
unfair prejudice within the meaning of Rule 403. Certain considerations for
conviction are improper, while the same grounds are valid for an acquittal.
For example, the Old Chief Court stated:
Courts . . . have come to disallow resort by the prosecution to any kind
of evidence of a defendants evil character to establish a probability of
his guilt. Not that the law invests the defendant with a presumption of
good character . . . but it simply closes the whole matter of character,
disposition and reputation on the prosecutions case-in-chief. . . . The
inquiry is not rejected because character is irrelevant; on the contrary, it
is said to weigh too much with the jury and to so overpersuade them as
to prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge.104
It is important to note that the Court stated that the prosecution does not
have the right to present such evidence in its case-in-chief, as opposed to
entirely restricting such evidence. Such a distinction must be considered
because on certain occasions Rule 404 specifically makes an allowance for
the defendant to introduce evidence that the prosecution is restricted from
presenting.105 Once the defendant chooses to reveal such moral
characteristics about himself, the prosecution is then free to admit its own
evidence to rebut the same trait. 106 Such distinctions show that
evidentiary restrictions placed upon the prosecution are not always
intended to restrict the defendant to the same degree.
The Advisory Committees notes to Rule 403 state that unfair prejudice
means an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one. 107 Despite the
seemingly plain language of this explanation, Justice Souters claim that
the prosecution may fairly seek to place its evidence before the jurors . . .
to convince the jurors that a guilty verdict would be morally reasonable, 108
places the meaning of the advisory committees notes into question. 109
103
.
Id. at 190-91.
.
Id. at 181.
105
.
FED. R. EVID. 404(a)(1).
106
.
Id.
107
.
FED. R. EVID. 403 advisory committees note.
108
.
109
.
Alternatively, this might show that the Supreme Court is not going to give
deference to the Advisory Committees interpretation of the Rule. However, since the Court
made no statement to that effect, it should be assumed that the Court sees its interpretation
as consistent with the Advisory Committees interpretation.
104
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Assuming the Court agrees with the Advisory Committees interpretation,
Old Chief effectively validates the idea that evidence which tends to make
the jury render a verdict on emotional grounds is not per se invalid.
Evidence of prison conditions, unlike exposing the nature of Old Chiefs
crime, is precisely the type of emotional evidence that is proper for the jury
to consider. Allowing a jury to hear that Old Chief had previously assaulted
another person in the past, when they could have simply been informed that
Old Chief committed a felony satisfying 18 U.S.C. 922(g)(1) in the past,
is to give the jury information that does not relate in any manner to the
current trial. The fact that the previous felony, for which he presumably
already repaid his debt to society, was one that the jury might find
incensing, has nothing to do with whether he should be sent to prison,
fined, or otherwise be punished for his current offense. Evidence
concerning the fate of the defendant after a verdict is imposed, however, is
not unduly prejudicial to the government because the government has
entrusted the jury not only with the task of finding facts, but also with
speaking as the voice of the communitys conscience. 110 Any argument that
the jury would reach an improper verdict because it considered what would
happen to the defendant if convicted, is to argue that the government knows
the punishment is too harsh in relation to the crime, and that a jury, if
informed, would realize this injustice and seek to rectify it. It is difficult to
conceive of how such a thought process unfairly prejudices the
government.
IV. ATTEMPTS BY DEFENDANTS TO SUBMIT EVIDENCE OF PRISON
CONDITIONS IN VARIOUS CONTEXTS
There have always been certain contexts in which courts have deemed
evidence of prison conditions to be relevant to a defendants case, and
therefore admissible. Primarily, such evidence has been admitted when a
defendant is on trial for escape or attempted escape from a prison, and the
defendant is claiming an affirmative defense of necessity or duress. 111
A. Prison Conditions Successfully Admitted for Defense of Necessity
Claim
In People v. Unger, a twenty-two-year-old, 155 pound man, originally
convicted of auto theft, was charged with escape from prison. 112 At trial he
110
.
See IRONS, supra note 9, at 4-6.
.
See, e.g., United States v. Bailey, 444 U.S. 394 (1980) (holding that prison
conditions may be relevant in certain circumstances, but the facts of this case did not
warrant their admission at trial); People v. Unger, 362 N.E.2d 319 (Ill. 1977) (holding that
prison conditions present appropriate grounds for a defense of necessity); State v. Green,
470 S.W.2d 565 (Mo. 1971) (en banc) (holding that prison conditions considered but fail in
this case to substantiate a claim of duress or necessity).
112
.
Unger, 362 N.E.2d at 320.
111
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was allowed to submit evidence concerning conditions of the prison from
which he escaped.113 Such evidence included accounts of sexual assaults he
was subjected to at the hands of other inmates, as well as threats on his
life.114 Despite the defendants unquestioned right to submit such evidence,
the judge gave the jury an instruction designed principally to negate any of
its relevance: The reasons, if any, given for the alleged escape are
immaterial and not to be considered by you as in any way justifying
or excusing, if there were in fact such reasons. 115 Why would a judge
allow the defendant to submit evidence, and then instruct the jury to
disregard the evidence for any meaningful points? The effect of this
instruction left only one issue for trialan issue that had already been
answeredwhether the defendant escaped from prison.
On appeal, the Illinois Appeals Court reversed (and the Illinois Supreme
Court subsequently affirmed the Appeals Court), holding that the judges
instruction was not only improper, but that the jury should have been
instructed that necessity was an applicable defense in the present case. 116
The Court explained that the defense of necessity arises when a defendant
is subjected to a choice of evils and chooses what reasonably appears to be
the lesser of the evils, regardless of whether such evaluation turns out to be
incorrect.117 In this case, the defendant was faced with the choice of
subjecting himself to further assaults and possibly murder or risk
attempting to escape from prison.118 The applicable statute stated:
Conduct which would otherwise be an offense is justifiable by
reason of necessity if the accused was without blame in
occasioning or developing the situation and reasonably believed
such conduct was necessary to avoid a public or private injury
greater than the injury which might reasonably result from his
own conduct.119
Most importantly, this statute and the Courts decision to find that the
defendant had the right to a jury instruction on necessity in light of the
statute, proclaims that a defendant, who acted under the defense of
necessity, acted not only without blame, but in a manner that society
actually condones.120 If a court realizes that breaking out of prison is an
action that society supports under certain circumstances, would not
society be better served by determining this before sending the
113
.
Id.
.
Id.
115
.
Id. at 321.
116
.
Id. at 322, 324.
117
.
Id. at 322.
118
.
Id.
119
.
720 ILL. COMP. STAT . 5/7-13 (2005) (original version at ILL. REV. STAT. ch. 38,
7-13 (1971)).
120
.
Unger, 362 N.E.2d at 322-23.
114
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defendant to prison? Under current law, a defendant cannot raise

such a defense until he has already been subjected to some form of
assault and attempted to escape, and even then such claims often go
unheard.121 It is not logical that society would place a defendant in a
confinement situation, and then commend the defendant for escaping.
B. Rejecting Evidence of Prison Conditions

While the Unger Court ultimately arrived at a fair conclusion that
escape was necessary under the circumstances, this is not the usual
outcome of such cases. State v. Green is a more common response
to a defendants claim of necessity in a prison escape. 122 In Green,
the Supreme Court of Missouri acknowledged that the defendant was
raped in prison on several occasions, and that when he sought help
from prison officials, he was told by the prisons Disciplinary Board to
fight it out, submit to the assaults, or go over the fence. 123 On the
day the defendant escaped, a group of i nmates had informed him that
they would break into his cell that night to rape him and that they
would continue raping him for the duration of his prison sentence. 124
His decision to escape several hours later was held u nsustainable on
grounds of necessity.125 The court stated:
This is not a case where defendant escaped while being closely
pursued by those who sought by threat of death or bodily harm to
have him submit to sodomy. Moreover, the threatened
consequences of his refusal to submit could have been avoided
that day by reporting the threats and the names of those making
the threats to the authorities in charge of the Center. Defe ndant
had several hours in which to consider and report these
threats.126
121
.
See United States v. Bailey, 444 U.S. 394, 394 (1980) (holding that prison
conditions may be relevant in certain circumstances, but the facts of this case did not
warrant their admission at trial); State v. Green, 470 S.W.2d 565, 568 (Mo. 1971) (en banc)
(noting that prison conditions were considered in this case but failed to substantiate a claim
of duress or necessity and that the Court even went so far as to state that [g]enerally,
conditions of confin ement do not justify escape and are not a defense. ).
Since both cases excluded the evidence based on the specific facts which the defendants
alleged as providing grounds for their necessity defenses, the courts have made it clear that
they would be unwilling to consider such claims without being able to review the casespecific facts. This necessarily requires that a defendant subject him or herself to harm or
imminent harm before presenting a necessity defense.
122
.
Bailey, 444 U.S. 394; Green, 470 S.W.2d 565.
123
.
Green, 470 S.W.2d at 566.
124
.
Id. at 570 (Seiler, J., dissenting).
125
.
Id. at 568 (majority opinion).
126
.
Id.
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Such reasoning is completely illogical in the face of the courts earlier
acknowledgement that the defendants previous attempts to solicit
protection from prison officials had been completely ineffective. 127
Under the courts holding, the only time a defense of necessity would be
accepted in an escape from prison would be if the defendant managed to
break out of prison while being simultaneously chased by a rapist. 128
This literal interpretation of a threat of imminent physical harm that
the defense of necessity requires stands contrary to any logical
interpretation of the requirement.129 In this case, the defendant
effectively waited until the last moment when escape would have been
realistically possible.130 The defense of necessity has never required that
a threat of harm will not be considered imminent until any method of
avoiding such harm is impossible.131
The absurdity of such a requirement is noted in a well-reasoned dissent

by Justice Seiler, to which none of the other eight justices joined. 132 Justice
Seiler brings particular attention to the fact that the defendant was only
offered three options by prison officials: submit, defend himself, or
escape.133 Justice Seiler states that even the majority does not recommend
submission, and that any attempt at self-defense under the circumstances
would have been futile.134 The majoritys recommendation that the
defendant could have protected himself by alerting prison authorities to the
names of his assailants is controverted by the fact that such action
would likely place the defendant in danger of losing his life because
the inmates would find out he was a snitch. 135 This leaves escape as
127
.
See id. at 566.
.
Id. at 568.
129
.
See People v. Unger, 362 N.E.2d 319, 322 (Ill. 1977). While the Green Court does
not use the words threat of imminent physical harm, it states, This is not a case where
defendant escaped while being closely pursued by those who sought by threat of death or
bodily harm to have him submit to sodomy. Green, 470 S.W.2d at 568. Such a statement
shows that the Green Court recognizes the same legal standardthough applied much more
narrowlyas the Unger Court by stating its willingness to consider a necessity claim when
a defendant is in imminent threat of physical harm in the form of a rape looming seconds
away.
130
.
See Green, 470 S.W.2d at 570 (Seiler, J., dissenting).
131
.
See Unger, 362 N.E.2d at 322 (stating that a necessity defense is applicable where
the defendant reasonably believed that his conduct was necessary to avoid a greater
harm). This decision implicitly recognizes that a defendant pleading necessity is not
required to establish that in fact absolutely no other method could have been undertaken at a
later date to avoid the threatened harm; rather, the defendant is held to a more forgiving
standard which recognizes that people cannot be held to a standard higher than what they
should reasonably believe.
132
.
Green, 470 S.W.2d at 568-71 (Seiler, J., dissenting).
133
.
Id. at 570.
134
.
Id. at 571.
135
.
Id. at 570.
128
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the only choice, but since the majority rejects that option too, the defendant
is left with no acceptable course of action. This is worse than presenting the
defendant with a Hobsons choice because instead of claiming that the
defendant only had one correct course of action to take, the court held that
any action the defendant did or did not take would still be the wrong
choice.
In arguing that the defendant should have been allowed to present
his claim of necessity to the jury, Justice Seiler puts forth a
fundamental principal of criminal law articulated by Justice Holmes:
[A] law which punished conduct which would not be blameworthy in
the average member of the community would be too severe for that
community to bear . . . . Juries in criminal cases are instinctively
aware of this.136
The words of Justice Holmes resonate strongly in such circumstances. 137

The jury must be allowed to consider a prisoners circumstances in
deciding whether escape is a reasonable course of action, and should
therefore go unpunished. Even if Holmess advice were followed, as it
was in Unger, this still leaves open a fundamental problem: it does
not address how society could avoid this situation entirely without
placing the defendant in such a situation in the first place. There is
an obvious fear that allowing defendants to regularly present
evidence of prison conditions would be improper, because there
would be no reasonable method for determining whether a defendant
was truly going to be at risk of facing a level of abuse in prison which
goes beyond what the jury is comfortable subjecting him or her to.
However, there are many factors which courts and commentators
have recognized as significant in determining who is truly likely to be
at risk in certain prisons. These factors can be used to appropriately
narrow the evidence presented.
C. Factors to Consider in Evaluating What Type of Evidence

Concerning Prison Conditions Should Be Admitted: The
Need for Case-by-Case Determinations
In many cases, there will actually be enough information upon which to

draw a reliable conclusion concerning the fate of a defendant if he or she is
placed in prison. An investigation conducted by the Philadelphia District
Attorneys Office and the Philadelphia Police Department reported that
virtually every slightly-built young man committed by the courts is
sexually approached within a day or two after his admission to prison.
Many of these young men are repeatedly raped by gangs of inmates. 138
136
.
Id. at 570 (quoting OLIVER WENDELL HOLMES, THE COMMON LAW 42
(Transaction Publishers 2005) (1881)).
137
.
HOLMES, supra note 136, at 42.
138
.
Green, 470 S.W.2d at 569 n.1 (Seiler, J., dissenting) (quoting Alan J. Davis,
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Faced with such evidence, it cannot be contended that fear of abuse on
the part of certain young men of small stature is merely speculative of what
will occur in prison. Even if it is possible that a jury could look at a white
nineteen-year-old defendant of a mere 150 pounds and conclude that it is
not sufficiently certain he will face danger in a violent prison beyond the
punishment mandated by law, the jury should still be the one to make this
decision.
Presuming juries follow instructions,139 the judge could instruct the jury
that it is free to consider evidence of prison conditions in light of the
particular defendant. The judge could further clarify that the jury should
only consider the evidence relevant if it shows a substantial likelihood, as
opposed to simply a possibility, that the prisoner would be raped. Even
without perfect statistics with which to work, which will never be available,
this process would be akin to asking jurors whether they are convinced, by
a preponderance of the evidence, that the facts indicate the defendant will
likely be sexually abused in prison. This would ensure that juries do not
acquit defendants who are unlikely to be victimized in prisons or
defendants who they think deserve such punishment. Additionally, it will
keep the proper focus on the defendants who the jury thinks will be
victimized and do not deserve such harsh, and arguably cruel and unusual
punishment.140
While it is certainly possible that any prisoner could become the subject
of sexual abuse, Human Rights Watch 141 has identified certain criteria
which indicate who is more likely to become a victim in prison. 142 These
[factors] include youth, small size, and physical weakness; being white,
gay, or a first offender; possessing feminine characteristics such as long
hair or a high voice; being unassertive, unaggressive, shy, intellectual, not
street-smart, or passive; or having been convicted of a sexual offense
against a minor.143 A prisoner possessing more than one of these traits is
substantially more likely to be sexually assaulted. 144 These factors provide
Sexual Assaults in the Philadelphia Prison System and Sheriffs Vans, 6 TRANSACTION 8, 9
(1968)).
139
.
See Shannon v. United States, 512 U.S. 573, 585 (1994).
140
.
See United States v. Bailey, 444 U.S. 394, 423 (1980) (Blackmun, J., dissenting)
(noting that a failure to use reasonable measures to protect an inmate from violence
inflicted by other inmates also constitutes cruel and unusual punishment).
141
.
Human Rights Watch is an independent, nongovernmental organization that
protects the human rights of people around the world. For more information see
http://www.hrw.org/about.
142
.
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONSSUMMARY
AND
RECOMMENDATIONS
(2001),
http://www.hrw.org/reports/2001/prison/report1.html#_1_5 [hereinafter SUMMARY AND
RECOMMENDATIONS].
143
.
Id.
144
.
Id.
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the guidance necessary to ensure that courts have a framework for
considering evidence of prison conditions. They serve to draw the courts
attention to relevant issues while assuring such evidence is not used to
achieve an acquittal of a defendant who is not at risk of abuse in prison.
D. United States v. Bailey
The leading Supreme Court case on the defenses of duress and necessity
in prison escapes is United States v. Bailey.145 The case, more than twentyfive years old, reflects many of the unrealistic assumptions about prison
safety that were seen in Green.146 In Bailey, a group of four men escaped
from a federal prison and upon recapture tried to claim the defenses of
necessity and duress.147 The United States Supreme Court, by a six to two
majority, 148 overturned the Court of Appeals for the District of Columbias
holding that the crime of escape requires a specific intent of avoid[ing]
non-confinement conditions as opposed to normal aspects of
confinement.149 Instead, the Court held that the prosecution only needs to
prove the defendant removed himself from custody with the intent to avoid
confinement.150 The Court also held that the defenses of duress and
necessity could only be available if the defendants proved that there was no
alternative to escape, given the imminent threat of harm. 151
In defining imminent threat of harm, the Court stated that the
defendants must show they made a bona fide effort to surrender or return
to custody as soon as the claimed duress or necessity had lost its coercive
force.152 The Court explicitly rejected the argument that such failure to
surrender should only constitute a factor weighing against a defendants
claimed motivation for continuing to avoid confinement. 153 Instead, the
Court held that proof of an attempt to surrender is an indispensable
element of the defenses of duress and necessity; thus, a lack of such
evidence precludes the jury from even being allowed to consider such
145
.
Bailey, 444 U.S. at 397.
.
Id. at 412-13 (mandating a bright-line rule that escapees must turn themselves
over to the authorities when danger has passed without explaining how such danger could
have passed or how the defendant would have learned of such a change in circumstances).
147
.
Id. at 398.
148
.
Justice Marshall took no part in deciding this case.
149
.
Bailey, 444 U.S. at 408 (quoting United States v. Bailey, 585 F.2d 1087, 1093
n.17 (D.C. Cir. 1978)) (internal quotation marks omitted). The D.C. Circuit defined nonconfinement conditions as encompassing circumstances such as beating[s] in reprisal for
testimony in a trial, failure to provide Essential [sic] medical care, or homosexual attacks.
Bailey, 585 F.2d at 1093 n.17.
150
.
Bailey, 444 U.S. at 408.
151
.
Id. at 410-11.
152
.
Id. at 413.
153
.
Id. at 412.
146
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defenses.154
The most striking failure of the Bailey Court in this regard is its inability
to describe a relevant situation in which an escapee could reasonably
assume that the duress or necessity, which had presumably prompted flight,
had lost its coercive force. 155 However, this failure is unsurprising and
wholly logical because there is no manner in which an escapee could
determine with certainty that the threat of sexual abuse or other violence
endured during incarceration, had ended. In fact, there is no realistic
method for an escapee to determine the current state of prison conditions
without returning to that prison. Considering the previously described
numerous accounts of abused prisoners cries for help going unheard or
purposefully ignored,156 the only reasonable conclusion an escapee could
reach is that the violence from which he or she fled has not lost any of its
coercive force. There is no point at which an escapee could think it was
safe to return to custody because the escapee would be immediately
returned to the conditions that inspired the escape in the first place.
In his concurring opinion, Justice Stevens mentions that while he is
concerned with prison conditions, he does not see escape as the proper
means of fixing the problems in prisons.157 Instead he advocates for
solutions such as:
formulating enforceable objective standards for civilized
prison conditions, keeping the channels of communication
between prisoners and the outside world open, and
guaranteeing access to the courts, rather than relying on ad
hoc judgments about the good faith of prison
administrators, giving undue deference to their expertise
or encouraging self-help by convicted felons.158
While these are certainly laudable goals, because they are not yet
implemented they do little for the inmates who live through abuse
and fear right now. It is important to note that the escape in Bailey
occurred more than thirty years ago, 159 and few would argue that
conditions in many prisons have met the standard for which Justice
154
.
Id.
.
The Court does give one example: An escapee who flees from a jail that is in the
process of burning to the ground may well be entitled to an instruction on duress or
necessity, for he is not to be hanged because he would not stay to be
burnt. Id. at 415 (quoting United States v. Kirby, 74 U.S. 482, 487 (1869)). However,
such an example is not instructive in determining when more common manmade threats,
such as prison violence, no longer hold coercive force.
156
.
See, e.g., State v. Green, 470 S.W.2d 565, 566 (Mo. 1971); Prison Rape
Reduction Act of 2002, supra note 2 (testimony of Linda Bruntmyer).
157
.
Bailey, 444 U.S. at 418-19 (Stevens, J., concurring).
158
.
Id.
159
.
Id. at 396 (majority opinion).
155
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Stevens advocates. While ordinarily citizens should not take the law
into their own hands simply because their grievances are not being
addressed quickly enough, no one should be expected to endure
years of torture (or even the one day it may take to be murdered by
another inmate).
V. POLICY REASONS FOR WHY THE JURY SHOULD BE ABLE TO CONSIDER THE
CONSEQUENCES OF THE VERDICT IT RENDERS
Aside from the legal bases articulated above, juries need to be informed
about the consequences of their verdicts to serve their purpose as society
intends. Without allowing juries to consider prison conditions, juries will
be ignoring the moral role they were intended to fulfill. The right to a trial
by a jury of ones peers is based primarily on the idea that a jury reflects
the conscience of the community in a way that a judge cannot. 160 Juries are
not supposed to convict defendants that they do not find morally
blameworthy.161 Evidence of prison conditions should also be admitted for
the positive effect it could have on motivating prison reform.
A. Keeping an Informed Citizenry Is Necessary for Valid Jury
Decisions
Currently there are two types of juries a defendant may face: a jury that
knows about its power to nullify, and a jury that does not. These categories
are further subdivided between juries who are educated about the
conditions of prisons, and those who are not. This split negatively impacts
the criminal justice system in two ways: (1) it provides inconsistent
outcomes and processes in trials, and (2) it results in the degradation
of the criminal justice system from an ethical standpoint.
1. Inconsistent verdicts verses inconsistent process
The inconsistency promoted by the fact that some juries will happen to
know of their power to nullify while others will not, can be viewed from
opposing angles.162 From one perspective, minimizing the number of juries
160
.
United States v. Datcher, 830 F. Supp. 411, 415 (D. Tenn. 1993) ([C]ommunity
oversight of a criminal prosecution is the primary purpose of a jury
trial . . . . Indeed, to deny a defendant the possibility of jury

nullification would be to defeat the central purpose of the jury
system.), overruled by United States v. Chesney, 86 F.3d 564 (6th Cir. 1996)
(overruling Datcher specifically for allowing defense attorney to inform the jury about its
nullification powers).
161
.
Green, 470 S.W.2d at 570 (Seiler, J., dissenting).
162
.
While this Note advocates granting defense attorneys the power to present
evidence of prison conditions, and not that juries should be outright informed of their
nullification powers, the policy arguments for informing juries of their nullification powers
are important by analogy. Defense attorneys would want to admit evidence of prison
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that know about nullification is likely to promote consistency in that it will
ensure that more juries apply the law in a predictable manner. 163 However,
allowing juries to exercise their nullification powers only when they
happen to already know of this power promotes inconsistency
because two defendants facing similar charges on similar facts could
receive opposite verdicts.164 Even if the two juries are operating from the
same moral standpoint, a defendants fate can fall on whether he or she was
lucky enough to have randomly dealt the jury that was better informed of
its rights.165
It is obviously impossible to remedy both types of inconsistencies since
either decision concerning whether to inform juries of their nullification
powers is, in itself, the remedy of one type of inconsistency and the
creation of the other. Thus, an initial decision must be made to determine
which type of inconsistency society should accept. To do this, there must
be a determination of what specifically about inconsistency is
objectionable to the law.
According to Justice Frankfurter, [stare decisis] represents an
element of continuity in law, and is rooted in the psychologic need to
satisfy reasonable expectations. But stare decisis is a principle of
policy and not a mechanical formula of adherence to the latest
decision.166 Along a similar line of reaso ning, Justice Cardozo stated,
[N]o judicial system could do societys work if each issue had to be
decided afresh in every case which raised it. 167 Expanding from these
Justices statements, the importance of the doctrine of stare decisis is to

protect the process by which decisions are reached, more so than the actual
decisions that juries render. Thus, all juries should undergo the same
decision-making process when confronted with the same statement of the
law. However, it is important to note that this does not mean all juries
should therefore arrive at the same conclusions.
Returning to the specific issue of whether juries should be informed of
their right to nullify, it becomes clear that informing juries of this right
promotes consistency in the decision-making process, while not informing
juries promotes a higher consistency in verdicts. 168 Informing juries
ensures they all have an opportunity to decide whether to nullify
instead of randomly allowing them to consider this step only if
conditions to grant the jury a road to nullification.

163
.
See United States v. Dougherty, 473 F.2d 1113, 1133 (D.C. Cir. 1972).
164
.
See id.; Brody, supra note 19, at 110.
165
.
Brody, supra note 19, at 110 n.153.
166
.
Helvering v. Hallock, 309 U.S. 106, 119 (1940).
167
.
Michael Sinclair, Precedent, Super-Precedent, 14 GEO. MASON L. REV. 363, 40304 n.230 (2007).
168
.
At least, it promotes a higher consistency in guilty verdicts.
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before reporting for jury duty. 169

Consistency in verdicts should always take a back seat to consistency
in the process of obtaining verdicts.
Even without explicitly informing juries of their right to nullify, 170
possessing
such
knowledge
providing them with information about prison conditions is

at least a step in promoting uniformity in the process of
decision-making. While some jury members may already
know of their powers concerning nullification, other jury
members may similarly already be educated about prison
conditions. Jury members who happen to be educated in
both areas, or jury members who are aware of prison
conditions and happen to exercise their nullification powers
subconsciously, as opposed to less-informed juries, are
going to have additional factors to consider in their
decision-making process. While it is impossible to assure all
jury members are evenly educated about relevant legal
issues that may affect a verdict, the law should not hide
from a jury such an easily-rectifiable inequality in the
deliberation process.
2. Degradation of the criminal justice system
In Escobedo v. Illinois, the Supreme Court stated:
We have . . . learned . . . that no system of criminal justice

can, or should, survive if it comes to depend for its
continued effectiveness on the citizens abdication through
unawareness of their constitutional rights. No system worth
preserving should have to fear that if an accused is
permitted to consult with a lawyer, he will become aware
of, and exercise, these rights. If the exercise of
constitutional rights will thwart the effectiveness of a system of law
enforcement, then there is something very wrong with that system. 171
Although the Court was discussing the right of all people to be informed of
their constitutional rights to counsel and silence, this line of reasoning
should similarly apply to informing juries about prison conditions. While
not recognized as a constitutional right, the jurys power to nullify is
certainly a power that has deep roots in the history of the United
States.172 Rights that have enjoyed protection throughout the nations
169
.
See Brody, supra note 19, at 110.
.
While informing juries of their right to nullify is probably the most correct path
for the law to take, this is an extreme measure that, realistically, should not be expected to
come to pass any time in the near future.
171
.
378 U.S. 478, 490 (1964) (emphasis added) (citation omitted).
172
.
See IRONS, supra note 9, at 5 (discussing how the jurys right to nullify has
existed, in a relatively unchallenged state, since colonial times in America).
170
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history have typically been afforded the status of fundamental right s.173
Even conceding that jury nullification might not be a fundamental
right in the sense of the constitutional principles that surround such a
right, it is undeniable that jury nullification is an ingrained feature of
the criminal justice system.174
It is illogical that the legal system at once demands that juries have the
right to nullify, yet expresses fear over what would occur if juries were to
learn that they possessed such power. 175 How can a power which the
government has seen fit to protect for centuries, despite heavy
criticism from prosecutors and judges, 176 serve its purposes fully if the
people who actually have the right to use such a power do not know
of its existence?
The standard theory that jury nullification serves its purpose wit hout
having courts inform juries that they possess such power is
expressed in the D.C. Circuit Court of Appeals case, United States v.
Dougherty:
What makes for health as an occasional medicine would be
disastrous as a daily diet. The fact that there is widespread
existence of the jurys prerogative, and approval of its
existence as a necessary counter to casehardened judges
and arbitrary prosecutors, does not establish as an
imperative that the jury must be informed by the judge of
that power. On the contrary, it is pragmatically useful to
structure instructions in such wise [sic] that the jury must
feel strongly about the values involved in the case, so
strongly that it must itself identify the case as establishing a
call of high conscience, and must independently initiate and
undertake an act in contravention of the established
instructions. This requirement of independent jury
conception confines the happening of the lawless jury to the
occasional instance that does not violate, and viewed as an
exception may even enhance, the over-all normative effect
of the rule of law.177
173
.
See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (Our established
method of substantive-due-process analysis has two primary features: First, we have
regularly observed that the Due Process Clause specially protects those fu ndamental
rights and liberties which are, objectively, deeply rooted in this

Nations history and tradition. (quoting Moore v. City of E.
Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion))).
174
.
See IRONS, supra note 9, at 5.
.
See Escobedo, 378 U.S. at 490.
176
.
IRONS, supra note 9, at 5.
177
.
United States v. Dougherty, 473 F.2d 1113, 1136-37 (D.C. Cir. 1972) (quoting
Justice Fortass comments in Follow-Up/The Jury, CENTER MAG., July 1970, at 61).
175
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However, the Court does not rely on any empirical data to justify its
implied conclusion that informing juries of their nullification powers
would produce a wealth of unjustified acquittals. 178 On the contrary, the
fact that the criminal justice system was able to function successfully
during the 1800s, when juries were given this information, seems to prove
that Doughertys reasoning presents an over-cautiouson the side of
achieving guilty verdictslegal system.179
In addressing the fear that presenting evidence of prison conditions to

juries will result in returning dangerous criminals to the streets, it is
also worth noting which defendants are most likely to be acquitted
on account of such evidence. Admitting evidence of prison conditions
calls upon juries to acquit because they think the punishment of
confining someone to a prison where that person will be subjected to
constant violence is too harsh. However, this means that juries are
unlikely to nullify on the basis of prison conditions where the
defendant committed a particularly heinous crime. It may be the
case that juries simply feel the defendant deserves to be subjected
to such risks.180
Also, juries informed about prison conditions will additionally be

educated about what type of defendant would be most at risk for
abuse in prison. The most at-risk defendants are typically people who
have committed nonviolent crimes and are not predisposed to
aggression.181 The truly hardened criminals that society would be afraid to
set free are not likely to benefit from having evidence of prison conditions
admitted at their trials because they are not likely to endure the same
abuses in prison.182 If the jury does not believe that the particular defendant
will be placed in a dangerous situation, evidence of prison conditions
provides no basis for nullifying.
178
.
Id. at 1141 (Bazelon, J., concurring in part and dissenting in part) (dissenting on
the issue of informing the jury of its nullification powers) (The Court assumes that these
abuses [of jury nullification] are most likely to occur if the doctrine is formally described to
the jury by argument or instruction. Tha t assumption . . . does not rest on any
proposition of logic. It is nothing more or less than a prediction . . .

[a]nd . . . we have no empirical data to measure the validity of the
prediction. . . .).
179
.
See id.; see also IRONS, supra note 9, at 4-5.
.
If this sounds unrealistically harsh, it should be remembered that the current state
of the criminal justice system endorses exactly this notion. The popular phrase, dont do
the crime if you cant do the time, (returning over 22,000 hits in a search on
http://www.google.com on Mar. 12, 2008) reflects a common theory that those who are
convicted and sent to prison are getting what they deserve.
181
.
See, e.g., SUMMARY AND RECOMMENDATIONS, supra note 142.
182
.
See id.
180
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B. Allowing Juries to Hear Evidence of Prison Conditions Will
Motivate Prison Reform
The central fear of informing juries of their ability to nullify is that juries
so informed will acquit more frequently than is justified by law. 183 Since
the purpose of offering evidence of prison conditions is essentially to
convince the jury to nullify, the fears associated with nullification
should apply to admission of such evidence as well. This fear of an
increase in unjustified acquittals remains the unsubstantiated
guesswork of courts and commentators.184
However, even if juries receiving information about prison conditions

really would acquit more often than society desires, this problem could be
corrected more easily than in the general jury nullification context. If
evidence of prison conditions is admitted in criminal trials, and the
acquittal rate rises dramatically, society will have a much greater
incentive to reform the prison system. 185 If prison conditions are so
revolting that adequately informed juries are not willing to incarcerate

otherwise guilty defendants, the solution should be to fix the problems with
prisons. The alternative solution currently used, which is to hide the
problems in the hope that juries can be tricked into incarcerating
people who they would not choose to condemn if they had more
information, is not a solution that any society should be proud of. 186
As Justice Bazelon explains in his dissent in Dougherty, The reluctance
of juries to hold defendants responsible for unmistakable violations of
the . . . law[] t[ells] us much about the morality of those laws and
about the criminality of the conduct they proscribe[]. 187 Essentially,
if juries are nullifying too often when they learn of prison conditions, then
the problem is with the prison conditions, not with the fact that juries are
now informed about those conditions.
Justice Bazelon further explains that even when nullification
powers are abused, society can benefit by learning what problems
need to be addressed.188 For example, in the early and mid-1900s there
was a wealth of improper acquittals in the South, where white juries

183
.
See Brody, supra note 19, at 111.
.
See United States v. Dougherty, 473 F.2d 1113, 1141 (D.C. Cir. 1972) (Bazelon,
J., concurring in part and dissenting in part) (dissenting on the issue of informing the jury of
its nullification powers); see also, Brody, supra note 19, at 111-14 (arguing that empirical
data actually supports the idea that informing juries about their nullification powers does not
produce improper acquittals in any substantial amount).
185
.
See Dougherty, 473 F.2d at 1143-44 (Bazelon, J., concurring in part and
dissenting in part) (dissenting on the issue of informing the jury of its nullification powers).
186
.
See id. at 1144.
187
.
Id. at 1143 (explaining this principle specifically in the context of prohibition
laws).
188
.
Id.
184
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sympathized with white defendants who lynched blacks. 189 However, the
revulsion and sense of shame fostered by that practice fueled the
civil rights movement, which in turn made possible the enactment of
major civil rights legislation. That same movement spurred . . . the
recognition of the right to be tried before a jury selected without
bias.190 Even when confronted with such abhorrent practices, the right
for juries to nullify was never abridged. 191 The lessons we learned from
these abuses helped to create a climate in which such abuses could not so
easily thrive.192
Thus, if society determined that defendants who deserved to go to prison
were being set free on account of juries being informed of prison
conditions, there would be more incentive to improve prison conditions.
Such improvements would remove the basis for acquittals of otherwise
guilty defendants.
VI. CONCLUSION
Evidence of prison conditions is always relevant in a criminal trial. Old
Chief, while not recognizing a defendants right to present such
evidence, shows that such evidence should be admissible because it
is not only relevant, but it can also be sufficiently focused so as to
prevent undue prejudice to the government. If the prosecution is
given the right, as recognized in Old Chief, to present evidence
designed to convince the jury that a guilty verdict is morally
reasonable,193 then the defense should have the right to present evidence
that convinces the jury that a guilty verdict is morally u nreasonable. In
fact, jury nullification powers give the defendant a much stronger
support base for this proposition that the law allows for defendants
to present moral evidence than any proposition that prosecutors
should enjoy a similar power. While juries have been granted the
responsibility of reflecting the conscience of the community by
acquitting defendants if they cannot morally agree with punishing a
defendant under the circumstances presented, juries do not have the
authority to base a conviction on similarly emotional grounds.
Consulting morality is a province of the jury only with respect to
issuing an acquittal; it should not, and cannot, legally serve as the
basis of a conviction.
189
.
Id.
.
Id.
191
.
Id. at 1133 (The judge cannot direct a verdict it is true, and the jury has the
power to bring a verdict in the teeth of both law and facts. (quoting Horning v. District of
Columbia, 254 U.S. 135, 138 (1920))).
192
.
Id. at 1143 (Bazelon, J., concurring in part and dissenting in part) (dissenting on
the issue of informing the jury of its nullification powers).
193
.
Old Chief v. United States, 519 U.S. 172, 187-88 (1997).
190
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Jeffrey Zahler

Allowing Defendants To Present Evidence of Prison Conditions To Convince Juries To Nullify: Can Only The Prosecutor Present "Moral" Evidence?

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Allowing Defendants To Present Evidence of Prison Conditions To Convince Juries To Nullify: Can Only The Prosecutor Present "Moral" Evidence?

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ZAHLER MACRO

Allowing Defendants to Present Evidence

CRIMINAL AND CIVIL CONFINEMENT

Hulin was convicted of arson for setting a dumpster on fire in his

Nowhere in the Rules is there any mention of evidence being admissible

prejudice, confusion of the issues, or misleading the jury, or by

See Old Chief, 519 U.S. 172.

Justice Thomas gives an example that jurors would presumably acquit

as the Court seems prepared to assume, all jurors are already

CRIMINAL AND CIVIL CONFINEMENT

While prison conditions are always relevant in a criminal trial, the

PRISON CONDITIONS AS MORAL EVIDENCE

defendant to prison? Under current law, a defendant cannot raise

B. Rejecting Evidence of Prison Conditions

The absurdity of such a requirement is noted in a well-reasoned dissent

The words of Justice Holmes resonate strongly in such circumstances. 137

C. Factors to Consider in Evaluating What Type of Evidence

In many cases, there will actually be enough information upon which to

PRISON CONDITIONS AS MORAL EVIDENCE

trial . . . . Indeed, to deny a defendant the possibility of jury

Justices statements, the importance of the doctrine of stare decisis is to

conditions to grant the jury a road to nullification.

PRISON CONDITIONS AS MORAL EVIDENCE

before reporting for jury duty. 169

providing them with information about prison conditions is

We have . . . learned . . . that no system of criminal justice

rights and liberties which are, objectively, deeply rooted in this

In addressing the fear that presenting evidence of prison conditions to

Also, juries informed about prison conditions will additionally be

proposition of logic. It is nothing more or less than a prediction . . .

CRIMINAL AND CIVIL CONFINEMENT

However, even if juries receiving information about prison conditions

revolting that adequately informed juries are not willing to incarcerate

was a wealth of improper acquittals in the South, where white juries

CRIMINAL AND CIVIL CONFINEMENT

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