Feb 28, 2010

justice as a human undertaking

Regarding the jury nullification LD resolution, I'd like to share a few more snippets from William Dwyer's In the Hands of the People. (The first installment is found here.)

1. I like the quotes Dwyer uses to preface his work, and, shamelessly, I'll reproduce them here. The first is by John W. Gardner, in Morale, and makes a nice warrant for the value of justice.
Justice is probably the oldest and most universally professed value. Anthropologists and historians are hard put to name a healthy society that has not honored (or professed to honor) some variation of the idea. Nature is unjust, humans are often unjust, and yet we refuse to live in a world without the idea of justice.
The second is by Sir Patrick Devlin, and comes from his lecture titled "Trial by Jury," found in the Hamlyn Lectures.
No tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.
2. In his own rhetoric and argument, Dwyer continually emphasizes the human element of justice.
In today's world the word-based trial model is taken for granted. The courtroom puts even our most atrocious acts through the civilizing mill of evidence, analysis, and judgment.... Once the evidence is in, the judge or jury decides what happened, applies the law, and enters judgment. An impartial search for the truth, and a faithful application of the law to the facts, are at the heart of the practice.

We admire this method for its appeal to reason, its fairness, and its fidelity to what has gone before. But these virtues are far from the whole story.... A trial is a civic function, but it is more than that; it is also a ceremony, a ritual, and an exorcism.... [O]ur modern adversary system of justice, with its commitment to the truth, its logic and verbal trappings, its robed judges and elevated benches and incantations of "may it please the court," is a descendant of the ordeal, the magic contest, and the trial by battle. There is more to the law than syllogisms; to serve the living, the process must be filled with life.
Later in the text, Dwyer tells of a case he adjudicated, in which a man confined to prison was charged with six felonies for writing threatening letters to a drug dealer. The man confessed to writing the letters, saying that he was just foolishly blowing off steam, and the jury agreed that the man had been "overcharged" but was clearly guilty. Only the foreman refused to cast a guilty ballot, causing a mistrial that eventually led to a plea bargain with a greatly reduced sentence. From this example, and from a historical survey of classic nullification cases, Dwyer concludes:
Jury mercy has ranged from the noble to the humdrum to the disgraceful. But in the main it has served us well. By defeating unjust prosecutions, by defending the weak against overzealous officaldom, by fending off oppressive uses of the law, jurors have strengthened not just liberty but the rule of law itself--and they still do....

Jury mercy is not to be feared. It is one part of the discretion jurors must use in deciding an endless variety of questions.... Jurors make judgments, and they do so by using not just the law laid out for them by the judge, but their own sense of justice as well. In this way they keep the law legitimately attuned to community values.

Feb 24, 2010

hand sanitizer, mind tranquilizer

To the list of things that don't actually keep you from getting sick--chugging vitamin C, downing homeopathic remedies, using Airborne, staying out of the rain--add hand sanitizer.
To begin, the influenza virus mostly spreads via tiny droplets in the air (for example, from sneezes)—not by dirty hands or surfaces—which limits the role of Purell. It probably wouldn't matter even if flu transferred though hand contact, which is how most cold viruses spread. Though Purell kills them in the lab, hand sanitizers don't stop their spread in the real world. The average child touches his or her mouth and nose every three minutes, and both adults and children come in contact with as many as 30 different objects every minute. Even hospitals can't get staff to use Purell before seeing patients; it's impossible for day care staff, parents, or teachers to wash a child's hands 20 times each hour.
Too bad germs are resistant to the placebo effect.

Feb 22, 2010

support your local jury

If you're studying the March / April jury nullification resolution, you might want to check out William L. Dwyer's In the Hands of the People, a book-length love letter to the American jury. I'm going to post a few things from it, starting with an argument for the epistemic superiority of the jury as a democratic institution.

Think about the legitimate limits on government overreach allowed in most social contract theory: checks and balances, judicial review, sunshine commissions, freedom of speech, an independent press, a bill of rights, elections, protests, and even revolution. Is a jury equal in impact and importance? Absolutely. As Dwyer argues,
If jury trials as a rule produce sounder results than we can count on in elections--which I believe they do--one reason may be the quality of information given to the citizens who must decide. In contrast to the chaos and mendacity of much political campaigning, and to the scattergun delivery of thirty-second television commercials, a jury hears testimony that is kept to the point by an impartial referee, tested by cross-examination, and offered throughout a day. We should be able to learn something valuable from the differences in communication.

With about 1.5 million Americans serving in courtrooms each year, the trial jury achieves a unique dispersal of governmental power. Far from being obsolete, it gains importance as elected officials become more distant from those they represent. When the United States government began, there was one congressman for every 38,000 constituents. Due to population growth, there now is one for every 647,000, a seventeen-fold increase in remoteness; state legislatures have seen a similar change. The jury, by placing decisions directly in the hands of the people, bridges the widening gap between citizens and their government. Our challenge is not just to keep it, but to restore it to full health amid new and difficult conditions.
Dwyer's work was published in 2002, and in the intervening years, a few things have changed. The explosion of news outlets, blogs and social media arguably place governments closer to the citizenry, but at the cost of raising the noise-to-signal ratio. Furthermore, the population has grown, and the recent Supreme Court decision to relax restrictions on corporate electioneering, along with the perpetual growth of K Street lobbying, means that one of the average citizen's most direct influences on government is still through jury service.

Now, this doesn't argue for nullification per se. It does, however, place the jury on its proper footing, as an essential component of a functional free society. We'll save Dwyer's thoughts on nullification for another post.

Updated: And those thoughts are found here.

Feb 21, 2010

one meeeelion pageviews

Sometime later today, or early tomorrow, this blog will hit a million pageviews.

It's hard to believe.

For big blogs with multiple authors and a frenetic amount of blog-izing, that's nothing, but for a hobby site that started and stayed free--and free of ads--I think that's pretty good. I don't know how many millions of anything I've acquired in life, but soon I'll be able to say, "If I had a dollar for every pageview..."

Thanks, readers, especially those from the world of speech and debate, who pushed this site up the Google rankings and turned me into an accidental expert on everything Lincoln-Douglas. And thanks, searchers, for being so weird, and turning me into an accidental expert on everything random.

Now, on to the next million.

Update: A reader from Torrance, California, is our number one million.

jury nullification and "parameters of acceptable deviance"

Regarding the jury nullification resolution, the affirmative has to show why the practice is not only a check on government power, but a just check. The intersection of morality and legality becomes quite important for both sides.

In "Law and the Parameters of Acceptable Deviance," found in the Fall 2006 edition of the Journal of Criminal Law and Criminology, Mark Edwards argues that jury nullification shows society's "parameters of acceptable deviance," or PADs. The traditional conception of nullification:
Juries confronted with a defendant charged with conduct that is formally illegal but within PADs may nullify the legally appropriate verdict in favor of the normatively appropriate one. Nullification inspired by acceptable deviance results, in criminal trials, in acquittal despite the jurors' belief beyond a reasonable doubt that the defendant is guilty of the crime. In the civil context, it results in a finding of no liability even though the jurors believe that a preponderance of the evidence demonstrates that the defendant is liable in tort.
(It should be noted that in civil trials, nullifying juries can have their verdicts overturned; in criminal trials, however, an acquittal is final, thanks to laws preventing "double jeopardy.")

Edwards, like most other scholars of nullification, recaps the practice's historically high regard.
[J]ury nullification is commonly credited with sparing some violators of the Fugitive Slave Act, Prohibition, and draft laws during the Vietnam War. In other words, in some times and places, aiding escaped slaves, manufacturing alcohol, and resisting the draft were within PADs though formally illegal. In each case, prosecutors and courts could not or would not accommodate PADs. Negotiation-through-practice had failed to produce a parameter of deviance acceptable to both regulators and the regulated.
Essentially, jurors who nullify value their community's moral standards above its legal standards--even when facing personal risk for doing so.
The strength of their fidelity to normatively acceptable standards is revealed by their willingness to enforce them despite personal risk. Although at common law jurors have been immune from prosecution for voting their consciences, they have sometimes been prosecuted after nullification for violating their jurors' oaths by refusing to adhere to the law.
What kind of laws provoke nullifying acquittals?
Today, nullification resulting in acquittal is thought to occur most commonly in "three-strikes" cases and drug cases. Hannaford-Agor and Hans make a distinction between jurors' concerns about the fairness of the law itself, on the one hand, and the fairness of the outcome of a guilty verdict for the defendant, on the other. This distinction seems particularly important in "three-strikes" cases, which can impose enormous penalties for relatively minor offenses, and in those drug cases where small amounts of drugs can result in long sentences. In such cases, the jury may find the defendant's conduct outside of PADs, but may also find the punishment that will be imposed normatively unacceptable. If the legal penalty is less acceptable than the illegal conduct, juries may vote to acquit despite believing the defendant guilty.
"Mandatory minimums," "zero tolerance" policies, "three-strikes" schemes, and the like all take the context out of account, turning justice into a matter of mere calculation. As moral norms are intuitive, sometimes difficult to warrant or rationalize, no wonder juries might find the law too constricting.

Now we come to the core argument. Proponents of nullification either minimize or exclude examples of nullifications-gone-wrong.
Some scholars argue that unjust acquittals should not be considered acts of nullification. But nullification, on its own terms, is neither just nor unjust. Whether the result is just or unjust, nullification is the product of the same phenomena: juries preferring PADs over law. So, normatively acceptable deviance may include unlawful acts that are also unjust. For example, in some times and places, juries might acquit white supremacist defendants who, beyond a reasonable doubt, had killed or assaulted African-American civil rights workers. Historically, juries may also have nullified the law by acquitting murderous cuckolded husbands, rapists "enticed" by their victims, violent nationalists, and others whose conduct was formally illegal but, by the normative sensibilities of their time and place, within PADs.
Edwards goes a step further than most, however. Rather than focusing solely on nullification-as-acquittal, he looks at the opposite side of the coin.
In addition to just and unjust acquittals, jury nullification may-and perhaps most commonly does-take the form of unjust convictions. In other words, juries may convict a defendant even if they are not convinced of guilt beyond a reasonable doubt, if some other characteristic of the defendant or his conduct is considered unacceptably deviant. Juries may be likely to convict a defendant that they find unacceptably deviant, as opposed to a defendant with whom the jury shares common normative sensibilities, even if the evidence of the particular crime with which the defendant is charged is the same. For example, jurors may be inclined to convict a defendant covered in gang-insignia tattoos, even if the evidence that he committed the crime with which he was charged is not strong. Similarly, juries may be inclined to sanction members of formally legal but normatively unacceptably deviant-religions, or professions, or political organizations. The normatively unacceptable behavior is not illegal, which makes formal enforcement against it impossible. But because the behavior is normatively unacceptable, the community may welcome the opportunity to impose sanctions that formal institutions of enforcement cannot.

Few scholars have considered unjust convictions instances of jury nullification, but they are logically identical to jury nullifications resulting in acquittal: they are the product of jurors preferencing PADs over law. Just or unjust, conviction or acquittal, the phenomenon is the same. Moreover, by excluding cases that result in convictions, scholars ignore the phenomenon of unacceptable compliance and miss what is, quite possibly, the majority of jury nullifications.
Here's where I think Edwards' argument is weakest: even if "unacceptable compliance" and "acceptable deviance" are logically equivalent, our justice system, as mentioned above, has an asymmetry between conviction and acquittal. Convictions can be appealed and overturned, so excessively-punitive juries are less of a theoretical risk to justice.

Overall, Edwards' article is worth reading not only for the sake of his claims--especially as they apply to the Negative side of the resolution--but for its extensive footnotes.

Feb 18, 2010

liberty, democracy, and the role of the jury

[Regarding the March/April jury nullification resolution.]

What is the right and proper role of a jury? Proponents of nullification like to point to historical examples, like the Zenger trial, as proof that the practice is legitimate and necessary for a functioning democracy. Not so fast, writes Daniel P. Collins in "Making juries better factfinders," found in the Winter 1997 edition of the Harvard Journal of Law and Public Policy.
As I see it, the most important reason for preserving trial by jury in criminal cases is not to promote democracy or to encourage "appropriate" nullifications; rather, the reason is to promote accurate determinations of guilt. It might be argued that juries are not well able to produce accurate decisions. But a look back at history--around the time the Constitution was adopted--will show that the Framers' belief in the accuracy of jury decisionmaking was one of the primary reasons given for protecting the right to a jury trial.

In the debates over the Constitution, there was repeatedly mentioned a great fear that judges would be biased or, at least, that they might be too idiosyncratic in their decisionmaking. Thus, while not much discussion of the jury provisions appears in Madison's notes of the convention, at one point Elbridge Gerry says that the Constitution should also provide for juries in civil cases in order to avoid against the possibility of corrupt judges. Alexander Hamilton, in Federalist No. 83, argued that by securing a right to jury trial in federal criminal cases the proposed Constitution provided for the surest defense against "the great engines of judicial despotism," which were "arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions." An anonymous pamphleteer, during the course of the debates on ratification, had the following to say: "The Chief Magistrate... of a republic, is as liable to personal prejudice, and to passion, as any King in Europe; and might prosecute a bold writer, or any other person, who had become obnoxious to their resentment, with as much violence and rigour." And Richard Henry Lee remarked that if the administration of justice be "entirely entrusted to the magistracy, a select body of men, and those generally selected by... such as enjoy the highest offices of the state, these decisions in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity."

With all due respect to judges, it thus seems clear that the Framers were concerned that an individual judge might not fairly and accurately weigh the evidence in a case. By contrast, a jury was thought to reflect the common sense of the community and thus would not suffer from the biases or idiosyncracies [sic] of an individual judge. As Jefferson put it:
In truth, it is better to toss up cross and pile [heads or tails] in a cause than to refer it to a judge whose mind is warped by any motive whatever, in that particular case. But the common sense of twelve honest men gives still a better chance of just decision than the hazard of cross and pile.
...And a letter, written by one of the convention delegates from Georgia, puts the point this way:
As to trial by jury in criminal cases, it is right, it is just, perhaps it is indispensable,-the life of a citizen ought not to depend on the fiat of a single person. Prejudice, resentment, and partiality, are among the weaknesses of human nature, and are apt to pervert the judgment of the greatest and best of men.
Indeed, the United States Supreme Court, in its cases discussing the nature of the right to a jury trial, has tended to emphasize the jury's role as an impartial factfinder. In a civil case from the nineteenth century, the Court stated that "[i]t is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge."
For every Affirmative arguing that the jury is an instrument of democracy, the Negative can respond by arguing that it's meant to protect individual liberty. In a criminal trial, we err on the side of caution--"innocent until proven guilty"--because we fear punishing the innocent more than letting the guilty go free. And, as Timothy Sandefur writes,
...the Progressivist interpretation... sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy.
Of course, this argument, in the hands of a capable Affirmative, might be the foundation of an individual rights-based case.

Feb 15, 2010

a "process view" of jury nullification

Concerning the March/April jury nullification resolution, Nancy S. Marder's "The Myth of the Nullifying Jury, " found in the Spring 1999 edition of the Northwestern University Law Review, is a must-read. The article, which runs over 80 pages, is too large to summarize entirely. Here's a quick rundown.

First, Marder sets out three types of jury nullification.
First, a jury may nullify to avoid applying a law to a particular defendant. Second, a jury may nullify to avoid applying a law that it regards as bad. Third, a jury may nullify as a response to social conditions.
Second, Marder distinguishes the two competing views of jurors' responsibility to the law. In the first, which Marder calls the "conventional view,"
...the jury is supposed to find facts and apply the law. In some cases, this might be a mechanical operation; in others, the jury might have to work harder to decipher ambiguous terms. However, in both cases, the jury is supposed to apply the law consistent with the legislature's words and the judge's instructions. To the extent the jury does more than this, it is intruding upon the legislature's or judge's respective roles. This conception of the jury exists more in theory than in practice, but the theory has proven compelling to both judges and some academics, and it is this theory of the jury that judges convey to jurors throughout the trial.
Marder goes to great lengths to deconstruct this view, and the way it essentially dehumanizes the participants, ideally making them into fact-finding robots, dispassionate and utterly objective.

What is the alternative? A "process view," which situates the jury alongside the judge as an interpreter of the law.
This view recognizes that the jury does more than find facts or apply the law; inherent in all of the jury's activities is an interpretive role. The jury engages in interpretation whenever it is asked to find facts or apply a legal standard that is vague or ambiguous. In addition to its interpretive role, the jury also plays a political role; it provides feedback to other branches of government about when they are overstepping their own roles.
The implications are fairly straightforward. The "conventional view" tracks strongly with the Negative's position that jury nullification is unjust.
Under a conventional view of the jury, the three situations in which nullification can occur are all causes for concern. In each, the jury is usurping the responsibilities of another branch. The conventional account of the jury means that any time the jury does more than find facts or apply law, such as nullify, it is doing something harmful. The myth of the nullifying jury, as told by proponents of the conventional view, is that nullification is always harmful.
The "process view," on the other hand, squares with the Affirmative's advocacy.
Under a process view, however, the jury does more than just find facts and apply law; it also plays interpretive and political roles. Under this broader conception of the jury's roles, the three situations when nullification occurs provide more benefits than harms. In all three, though perhaps to a lesser extent in the third, nullification is consistent with the jury's broad role, and nullification enables the jury to provide valuable feedback to the legislature, executive, or judiciary.
There's much more that can be said about the merits of Marder's analysis. Luckily for you, the article is available in its entirety online.

Feb 11, 2010

value and criterion pairs for the jury nullification resolution

The following is a list of possible value / criterion pairs for the jury nullification resolution.

A couple questions to kickstart your thinking: Why would we have checks on government? Why do we have jury trials, anyway? Why not just have judges decide innocence or guilt?

A work in progress. Suggest your own pairs in the comments!

Trending Affirmative

V: Justice
C: Governmental Legitimacy / the Social Contract
If nullification is a "just check" on government power, it's because of the nature of government's relation to its citizens. A government that oversteps its bounds with unjust laws--even those that are initiated through democratic processes--has violated the social contract. Nullification, then, is a peaceful form of revolution. (You might compare these V/C pairs to those I wrote up for the vigilantism resolution a year ago.)

V: Democracy
C: Popular Sovereignty
At its core, the U.S. strives to be democratic. Popular sovereignty--the idea that the people rule--is the foundation of democracy. Jury nullification places power in the hands of the people, the power to declare that the law is unjust, and that the government has overreached. Combine with arguments that institutions have been corrupted or have stagnated (undue corporate influence, special interest groups, etc.) and you can be the Noam Chomsky of jury nullification.

V: Individual Rights
C: Reducing state power
Similar to the argument above: we live in an age of ever-expanding state power. The justice system in the United States is a well-oiled machine, grinding individuals to powder. Nullification jams the gears, protecting individual rights--especially of those who are unable to afford the best attorneys. (The War on Drugs makes this problem acute; see Paul Butler's Let's Get Free. for a former prosecutor's take on the practice.)

Trending Negative

V: Justice / Democracy
C: The Rule of Law / Due Process of Law
It takes only one nullifier to hang a jury trial. This has the potential to jam the gears of justice, which is one of the primary reasons juries are never instructed about the power of nullification. Furthermore, it's patently unfair and undemocratic for one person to thwart societal standards.

V: Justice
C: Deontology
Because of a little process called "voir dire," a potential nullifier is likely to have to lie--after all, no prosecutor is going to let a person who reviles the drug war stay on a jury in a drug case. But deontological ethics--especially Kant's--forbid lying, even for the sake of the good. (Here it helps to define "justice" as "moral rightness.")

V: The Rule of Law
C: Respecting legal expertise
Ordinary citizens, God bless 'em, don't understand the complexities of the law, questions of constitutionality, and the like. Although the United States has democratic aspects, it is ultimately a constitutional republic, which resists the fickle fervor of the masses. Leave legislation and judicial review to those who are not only appointed, but qualified to do them.

Going Either Way

V: Justice
C: Constitutionalism
In the United States, the Constitution, as the supreme law of the land, is the ultimate standard of justice. Is jury nullification constitutional? There's no right to it--the practice comes from common law--but it's not clearly unconstitutional, either. Essentially, the Supreme Court's few rulings on the subject say that it's a power juries have, but that jurors have no right to be told about it.

V: Societal Welfare
C: Consequentialism / Utilitarianism
If we should evaluate governmental actions--and checks on government power--in the light of their societal consequences, is jury nullification justified?

Feb 8, 2010

sanctions, trade, and private actors

Regarding the Jan/Feb economic sanctions resolution, some affirmatives argue that economic sanctions are immoral because they interfere with free trade, punishing not only citizens in sanctioned nations, but entrepreneurs and corporations in the nations levying the sanctions.

At first glance, the argument seems compelling--but how significant is the impact? In "Economic Sanctions: Public Goals and Private Compensation," found in the Fall 2003 issue of the Chicago Journal of International Law, Gary Hufbauer and Barbara Oegg analyze the economic effects of sanctions.

First, the impacts on trade are relatively small:
Over the past decade, the emergence of new senders such as the European Union and the United Nations, coupled with an expanding list of foreign policy goals, has lead [sic] to a proliferation of new sanctions initiatives. Despite these developments, the total amount of trade disrupted by sanctions remains relatively small. Our estimates indicate that US trade loss due to extensive sanctions ranged from 0.7 percent to 1.8 percent of total US merchandise trade. Lost EU trade is probably much smaller. Similarly, average annual costs of economic sanctions to the target countries seldom exceed 3 percent of GDP. Compared to the tremendous expansion of international trade and capital flows in the last decade, the costs of sanctions in terms of national income or bilateral trade flows seem minor.
However, investment impacts are considerably larger; according to Hufbauer and Oegg's calculations, sanctions affect "as much as 10 percent of world [Foreign Direct Investment]," and that this, on average, would decrease target countries' GDP by a "substantial" 6%.

If the economic impacts are mixed, what might represent another approach for the affirmative? First, consider the wording of the resolution--"... to achieve foreign policy objectives," which in most readings applies exclusively to governments. The affirmative might argue that private actors are a more appropriate agent of action--that individuals and corporations, through grassroots direct action, nonviolent revolution, and litigation, can go after rights violators and rogue regimes.

Hufbauer and Oegg note the Free Burma Coalition, which
...claims that it successfully pressured companies such as Eddie Bauer, Columbia Sportswear, Apple Computer, Motorola, Heineken, Eastman Kodak, Amoco, and Pepsi, among others, to withdraw their businesses from Burma. Some 39 major US retailers have also announced their decisions to cut off all business ties with Burma. Grassroots divestment campaigns are not solely a US phenomenon. Under pressure from the Burma Campaign UK, eight UK investment funds launched an initiative highlighting the unique problems for foreign investors in Burma including the threat of international boycotts, corruption, and the loss of shareholder confidence.
Hufbauer and Oegg also foresee a future in which private litigation, enabled by legislation such as the FSIA and the Alien Tort Statute, and by courts with growing international reach, put a much larger crimp in the economic style of state sponsors of terrorism.

I'm not sure it's worth building a whole case around, but at least it offers a potential block to Negatives arguing that no realistic peaceful alternatives exist.

Feb 2, 2010

Radley Balko on your obligation to nullify

When might jurors have an obligation to nullify? Radley Balko, libertarian activist and journalist extraordinaire, sums up the case for jury nullification in a classic article worth quoting extensively:
So why do judges continue to get jury nullification wrong? Many point to an 1895 case in which the Supreme Court ruled that judges aren't obligated to tell jurors of their power to nullify bad law. Some have wrongly interpreted that decision to invalidate the doctrine of jury nullification altogether. They're mistaken.

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that "juries are not bound by what seems inescapable logic to judges." And in 1972, that "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

Indeed, Americans can be proud of our history of boldly and valiantly standing up to unjust laws (if not so proud of the laws themselves). There are multiple cases of jurors refusing to convict violators of the Alien and Sedition Act (search), the Fugitive Slave Act (search), and alcohol prohibition laws, among others.

Now that the Supreme Court ruled that federal prosecutors can continue to arrest medical marijuana patients, and given the Drug Enforcement Administration's continued prosecution of pain patients and the doctors who treat them, we're likely to see more outrages like those perpetrated against Ed Rosenthal and Richard Paey.

A common question I get from people disturbed by these kinds of cases is, "What can we do?" Well, here's one thing the average citizen can do: Serve when you're called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he's guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with "not guilty," no matter what the judge, the prosecutor, or the evidence says.

Not only is this your right as a juror, some would say it's your obligation.
Whether nullification is truly a right is debatable, but its existence as a historical (and legitimate) power of juries is unquestionable. But even if nullification were illegal, it could be justified as a form of civil disobedience. After all, why be complicit in the punishment of an innocent, or the disproportionate punishment of the guilty? Throw mandatory minimum sentences into the works, and you can create an even stronger argument for informed jurists with the power to nullify unjust laws.

Feb 1, 2010

the case against nullification

[Regarding the March/April jury nullification topic.]

As furnished by a three-judge panel in the 2nd Circuit Court of Appeals, U.S. v. Thomas No. 95-1337.
We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court--in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." FEDERAL JUDICIAL CENTER, BENCHBOOK FOR U.S. DISTRICT COURT JUDGES 225 (4th ed. 1996) (emphasis supplied). [8] We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

We are mindful that the term "nullification" can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws. We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country's most renowned examples of "benevolent" nullification. See United States v. Dougherty , 473 F.2d 1113, 1130 (D.C. Cir. 1972) (Leventhal, J. ); see also David Farnham, Jury Nullification: History Proves It's Not a New Idea , CRIM. JUST., Winter 1997, at 4, 6-7.

More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." U.S. ex rel. McCann v. Adams , 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds , 317 U.S. 269 (1942). This is so because, as Judge Hand explained, "[t]he individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. . . . [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove . . . ." Id. at 775-76.

As courts have long recognized, several features of our jury trial system act to protect the jury's power to acquit, regardless of the evidence, when the prosecution's case meets with the jury's "moral[] disapprov[al]." Since the famous opinion in Bushell's Case , 124 Eng. Rep. 1006 (C.P. 1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being called to account for their verdicts. Moreover, and in addition to the courts' duty to safeguard the secrecy of the jury deliberation room (discussed in greater detail below), the several rules protecting the unassailability of jury verdicts of acquittal--even where these verdicts are inconsistent with other verdicts rendered by the same jury in the same case, United States v. Carbone , 378 F.2d 420, 423 (2d Cir.) (Friendly, J. ) (recognizing link between upholding inconsistent verdicts and protecting juries' power of lenity), cert. denied , 389 U.S. 914 (1967)--serve to "permit[] juries to acquit out of compassion or compromise or because of their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Standefer v. United States , 447 U.S. 10, 22 (1980) (internal quotation marks omitted).

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that--a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. Indeed, although nullification has a long history in the Anglo-American legal system, see Dougherty , 473 F.2d at 1130-33; Farnham, supra , at 4, and the federal courts have long noted the de facto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia , 254 U.S. 135, 138 (1920); see, e.g. , United States v. Trujillo , 714 F.2d 102, 105-06 (11th Cir. 1983), courts have consistently recognized that jurors have no right to nullify. See, e.g. , United States v. Kerley , 838 F.2d 932, 938 (7th Cir. 1988) ("[J]ury nullification is just a power, not also a right . . . ."); see also Sparf v. United States , 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"). As a panel of the Court of Appeals for the District of Columbia Circuit--composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg--explained:
A jury has no more " right " to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.
United States v. Washington , 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman , 419 F.2d 110, 116 (1st Cir. 1969), cert. denied , 397 U.S. 991 (1970). [9]

Resolved: In the United States, the principle of jury nullification is a just check on government.

The March / April Lincoln Douglas debate topic has been released:
Resolved: In the United States, the principle of jury nullification is a just check on government.
I have high hopes for this topic. Jury nullification is a subject that most people know very little about. There's robust debate among legal experts and constitutional scholars as to its justification, and, consequently, a large and interesting literature on the matter.

Jury nullification, in brief, is when a jury acquits a defendant because, in the jury's view, she has been arrested, charged, and tried for breaking an unjust law--regardless of the evidence against her. It raises all sorts of interesting questions.

What democratic or social contractarian principles support or discourage nullification? What is the purpose of a jury--and why do we have jury trials? Do juries understand the law well enough to judge its validity? Is nullification an actual right of juries? If more juries nullified, what would the effect be? Should judges notify juries of their right to nullify?

And, more specific to the resolution: What particularly American needs, issues, and principles, Constitutional or otherwise, support or discourage nullification? Where does it sit in the larger framework of "checks and balances?" Historically, how has nullification worked out?

As you're researching, you'll see that jury nullification in the present-day United States often arises in the context of the War on Drugs. (See here, with additional commentary here, for example.)

Watch this space for further articles and analysis. As always, it's your questions and comments that make this space a truly valuable resource for LD debaters everywhere.

Also, if you're new to LD, I have some articles just for beginners. Click the link and start scrolling.

Added 2/1: The Second Circuit Court of Appeals makes the case against jury nullification. The skinny: it's a power, but not a right, and it ain't right.

Added 2/2: Radley Balko argues that, from time to time, it might be your moral obligation to nullify.

Added 2/11: An initial list of value and criterion pairs.

Added 2/15: An article that takes a "process view" of the jury's responsibility, with implications for the Affirmative.

Added 2/18: A look at the historical role of juries, slanted toward the Negative.

Added 2/21: When juries nullify, they show fidelity to "parameters of acceptable deviance."

Added 2/22: Why juries are an essential component in a democratic society. A brief look at the work of William L. Dwyer.

Added 2/28: A robust theory of public engagement seems like it could provide a solid framework for the Aff. The broader civic importance of juries cannot be understated.

Also, I take another look at William L. Dwyer's work, especially his humanistic view of justice.

Added 3/5: More reasons nullification is unjust.

Added 3/18: A reader sends ideas for resources, plus some thoughts on the Neg.