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.


Anonymous said...

Our democracy was founded on the premise that humans have the capacity for rationality (Locke comes to mind). The question for me is how rational can humans be perceived to be acting if they don't fall the letter of the law. Where's the rationality, grounding? It would seem to be that those who nullify on the basis of community would not necessarily be acting rationally. Of course, juries instructed to solely follow the letter of the law could act irrationally, but perhaps less so. How can we assume that those who nullify are acting in the best interests of their communities or society at large? The author seems to suggest this all part of the general will - analogous to Adam Smith's invisible hand - it all just happens.

Jim Anderson said...

An interesting, pointed, and useful response, premised, of course, on the idea that the law is itself somehow more rational than the people who draft it.

And what is rationality, anyway? Is it cold, mathematical logic? Or something else? I'd highly recommend a visit to Antonio Damasio's Descartes' Error for a critique of rationality-as-calculation.

"Far from interfering with rationality, his research shows us, the absence of emotion and feeling can break down rationality and make wise decision making almost impossible."

Jim Anderson said...

(For another more easily accessible critique of rationality in a legal context, see here.)

Anonymous said...

Dear Anonymous,
Since "rational" usually means - having its source in, or being guided by the intellect - your assertion that humans can't be perceived to be rational unless they follow the letter of the law as it is given to them (i.e. do as they are told) seems contradict itself. Is that an example of a non sequitur?