Feb 1, 2010

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.


Antinomian said...

Clifton Ingram faces felony possession of psilocybin in Asheville NC. His defense will be to appeal to his jury of peers that there is a higher law than the Controlled Substances Act of 1970. The higher law is that “God’s gifts should be celebrated, not used as a cause to arrest folks“.

Mr. Ingram’s own peer group, the double-digit-demographic which approves of accepting God’s gifts, would tend to agree. But prospective jurors must be disqualified if they aren't able to make an objective determination as to if a violation of a lawfully-enacted statute happened. Jurors who feel the statute is unjust cannot be objective. They will be free to go home with no blood on their hands. Look at the size of the jury pools needed to find a panel with the right stuff.

How much has this case already cost the taxpayers? Mr. Ingram is not even alleged to have been bothering anybody. Society is voluntarily shooting itself in the foot.

Mr. Ingram should be given witness-protection for rolling over on the cartel big fish. God and Mother Nature have conspired to provide rain, sunlight, and composted earth for illegal seeds for too long. Their plants manufacture contraband, around the globe, around the clock. Are the masterminds to get off scot-free, while little-guy copycats are selectively prosecuted? We have God’s written confession that it was He who created the seed-bearing plants in the first place (Gen.(1:12). Behold, He pronounces them very good, without remorse for either weed, mushrooms, morning glories, coca, poppies, cacti... Furthermore, He has afflicted humanity with bodies that react to the presence of the taboo molecules in ways that cause people who have had the experience to want further experience. With the help of Mr. Ingram’s incriminating testimony that he gets his psilocybin from God, we should be able to keep Him off the streets for a good long time.

Jay said...

so effectively what it is saying is that if a man breaks a states 19th century sex law than the jury can acquit despite proof

Jim Anderson said...

Jay, that's one way it could work out. It could also work out that, say, a group of racists acquits the perpetrator of a lynching. So it's complicated.

Anonymous said...

I can see veil of ignorance and social contract on both sides.

Aff: VoI: people don't want to be in society where laws are unjustful and where you are convicted of an unjust law. SC: any check to make sure a government doesn't become tyrannical that's within the system (no extra rights violations) is just.

Neg: VoI: Nobody wants to be the victim whos attacker has been let off the hook because of jury nullification, and people on the jury are getting extra rights as compared to other members of society. SC: Hobbes says that we give up absolute freedom for protection. Then, all final jurisdiction is left up to the government, and jury nullification is a way of breaking your end of the contract. Thus, unjust.

Just some ideas.

Anonymous said...

The crux of this topic seems to be the "in the United States" part. Is there any sort of Constitutional article that gives jurors this right? Also when a jury does choose to use this power, does the decision have to be unanimous? I don't know if this will affect the topic, but I was just curious.

Jim Anderson said...

Latest Anonymous, good questions. The constitutionality of jury nullification is not fully settled (SCOTUS has never taken a case), though the practice has precedent in lower courts and a long history in common law. There is no stated right to jury nullification in the Constitution.

A jury that chooses to acquit does so unanimously; however, one person who "sticks to her guns" and continually votes to acquit can cause a "hung jury" mistrial. This is one of the reasons the judicial system actively discourages nullification, perpetually ordering jury members to weigh only the facts of the case, and not the merits of the law. (Whether a single vote for acquittal leading to a mistrial is resolutional in this debate is an open question. Some affirmatives will argue that the phrase "jury nullification" means a unanimous vote for acquittal, which would make the process slightly less "subversive.")

Aric Parkinson said...

Would a negative kritik claiming that jury nullification isn't really a check on the government work? Essentially, the courts do need a check on their power, and jury nullifications are good, but they aren't sufficient in power in the United States (the Supreme Court is never going to fall to some sort of jury nullification, legislation isn't passed becasue the jury nullifies, and petitions/etc. are much more effective at getting attention to an issue).

Jaycie said...

how could i define jury nullification to go with the neg side? i'm kind of confused on how to make it work to benefit that side.

Jim Anderson said...

Aric, I'm not sure whether a judge will find that persuasive, given that the resolution focuses on "the principle," as opposed to the practice, and on whether it's "just," not whether it's effective. I'd see your argument as more of a block to any affirmative attempting to justify jury nullification on utilitarian grounds, but for someone arguing a rights-based or deontological framework, it seems like there'd be no clash.

I don't know for sure, though, and if someone else jumps in with a better response, I could be persuaded otherwise.

Jaycie, I think the affirmative might try to focus on entire juries nullifying, for reasons I've stated above, whereas the Neg might argue that it takes only one nullifier on a jury to throw a wrench in the wheels of justice. As to other definitional implications, I haven't fully considered those, but expect to have a post up sometime soon. This resolution is still pretty fresh.

Anonymous said...

Does anyone have any possible value/value criterion pairs? I'm still in the researching phase, but my coach wants our district cases by Thursday, and I'm a little panicked, so any suggestions would be appreciated :) I was thinking about maybe centering my case on the "principle" part of the resolution, but I'm not quite sure how to do that.

Jim Anderson said...

anonymous, I'll be putting together a list pretty soon, maybe even starting tomorrow. I'd guess that the affirmative would start with Justice as a value, with a criterion along the lines of popular sovereignty, Constitutionalism, the social contract, etc.

The "principle" is there, I think, to push the debate toward the more classic Lincoln-Douglas style, which is supposed to be about general principles, rather than example battles.

Neil Jenson said...

Ahh, the classic Governmental legitimacy and societal welfare will do nicely.

Anonymous said...

I have been looking all over, and I can not seem to find a quote(or philosophy)against jury nullification (neg case). Am I not looking hard enough? Do you know what I could use, or where I could find some?

Alex said...

You could just put some generic quote about government or the American judicial system in general.

Anonymous said...

Hey Jim, I've been working my way through various philosophy works based on the resolution (for compulsory immunization I read John Stuart Mill's "On Liberty") and was wondering if you had any reading suggestions for this resolution. Thanks for your time :)

Jim Anderson said...

anonymous, great question. I like Robert A. Dahl's "Democracy, Liberty, and Equality," but it's probably hard to track down unless you have access to a good college library. As far as histories of jury trials, I'm going to read Levy's "The Palladium of Justice" and Dwyer's "In the Hands of the People" to see if they're any good.

You might try Schumpeter, Habermas, or Rorty if you're looking for democracy-centered philosophizin'. Or you could go here and see what your library has in stock.

I've answered a more generic, but similar, question here.

If I think of other suggestions, I'll let you know!

Tim said...

Is anyone else having trouble doing research because of HeinOnline? 90% of the articles that I want to read are from this site and it asks for a subscription.I really don't want to put anymore money into this than I have to, and the price is pretty steep. So can anyone tell me is it worth it?

Jim Anderson said...

Tim, could you give an example of an article you could find only on HeinOnline? There may be other sources available to you. Let me know, and I might be able to help.

beena said...

i think that there is an interesting piece of truth- one cannot know when 'jury nullification' has taken place. it is when a juror votes against the evidence, but it is impossible to know whether it is because they do not think there is enough evidence, or because they feel the law is unjust in or itself. this collapses j.null into A. any time when the expected or majority verdict is opposed by a juror or B. when the juror declares their reasoning (which is optional, and only occurs from time to time on high profile cases)

what could the implication of this be in a case position? like in terms of a neg position, could it mean that it is not a just check, bc it is literally whenever someone disagrees, thus the government/court has no reason to investigate causes, etc or something

briley said...

what is a 'just check' on government? what constitutes one? how do you know when something has been justly checked.
can you explain, in depth, the latter part of the resolution?

Alan-a-Dale said...

So, I was thinking about the topic and reading comments ~ if you have a jury nullify because it does not agree with the way the law is being applied to the case, think the laws are unjust, or just flat out decide to acquit even in the face of overwhelming evidence, how can it be a just check on government?

In the South for examples, all white jurors often gave acquittal's to other white men for crimes against black citizens, where murder has been condoned through jury nullification thanks to double jeopardy. In many cases it's not a check against government, it is just catered to the feelings of 12 individuals.

Jim Anderson said...

beena, I don't know if the "we can't always tell nullification from regular acquittal" will work, not only because there have been instances where jurors have gone public with their reasoning, but because it would take away all the Aff's ground.

briley, that's a critical question, and addressed in part here, although I think it merits its own post.

Alan-a-Dale, that's essentially the argument made here. Essentially, as a process, nullification is neither just nor unjust. It just is.

FiveBoxes said...

If you want more info on jury nullification check out the Jury Box and the Fully Informed Jury Association.

Both have good resources about the topic, including the history of jury nullification and handouts and stuff.

Jaycie said...

Hi Jim, I just qualified for state today but there were a few holes in my affirmative case that I haven't been able to fix yet. One of them was how to defend the fact that morals change depending on where you are, like the Northern states went against the Fugitive Slave Law while the South favored it. Is there a way for me to go against that?


Jim Anderson said...

Jaycie, that is one of the drawbacks of a society founded on democratic principles: not everyone is going to agree on moral standards, even if they objectively exist.

You might frame the issue this way...

Which is worse? Letting the guilty go free, or punishing the innocent? Nullification always runs the risk that the truly guilty might go free--but in a society where nullification doesn't happen, the truly innocent are going to be punished in equal numbers. If the latter is worse, then nullification is worth the risk.

You could also argue that, in the long run, and in the grand scheme of things, democratic societies tend to move past prejudices and widen the scope of rights, so nullification as a means of protecting the truly guilty becomes less of a problem.

I'm sure there are other approaches, too. Other commentators care to weigh in?

Anonymous said...

what about the idea on the aff. that jury nullification still follows the rule of law, because law carries inherent moral principles and juries take these into account.

Jim Anderson said...

Anonymous, that's an interesting angle. My first question would be, if the law "carries inherent moral principles," then under what circumstances is nullification needed--presuming that nullification upholds morality?

Anonymous said...

Well, its simple enough...jury nullification is needed when the government ignores these inherent moral principles to the law. Juries interfene simply to keep these principles intact and actually UPHOLD the law.

Jim Anderson said...

But what if human law and moral law don't coincide? For instance, in some states, murder is punishable by, at most, a life sentence. In other states, murder warrants a death penalty.

In which of these cases does the punishment fit the crime, upholding the moral law?

Jave said...

Bah D: so I'm having trouble starting on the Neg, especially with the burden of, say:

The burden placed onto the Negative side is not to prove that jury nullification has done more harm than good, but that, despite the amount of harm or good done, it is not justified.

James Mills said...

Any examples of jury nullifications being used in a corrupt/not just way?

Jim Anderson said...

Jave, that burden sounds Kantian to me--that morality doesn't depend on the outcome. So one way for the Negative to respond to the burden is to reject it, arguing from a consequentialist stance that the ends justify the means. Another is to point out the problems with Kantian ethics, which are well known.

Or am I misunderstanding your point?

James, this article briefly mentions the example of a racist jury acquitting someone of a racially motivated murder, although you'd have to go to the footnotes for specific examples. There's certainly nothing about nullification in principle that prevents such kinds of nullification.

(Jave, that article offers another way to argue against nullification--that it's neither just nor unjust, but merely a process that is sometimes used for just ends, and sometimes not.)

James Mills said...

How do you say that jury nullification is unjust without saying that trial by juries is bad?

Anonymous said...

Could the rule of law be looked into as a Aff VC as well because of the fact that the rule of law provides for a system of checks and balances, which a jury exercises through the process of jury nullification?

Anonymous said...

In response to Jim Anderson's earlier comment: I'd guess that the affirmative would start with Justice as a value, with a criterion along the lines of popular sovereignty, Constitutionalism, the social contract, etc.

The "principle" is there, I think, to push the debate toward the more classic Lincoln-Douglas style, which is supposed to be about general principles, rather than example battles.

Good luck with that... I think it's great to advocate what's so great about Lincoln-Douglas debate. Of course it's frustrating to be playing according to the rules of Lincoln Douglas yet be up against Policy judges who state that while you're an eloquent speaker - they vote for the one that speaks the fastest and gives the most examples - spurts out the most facts. L-D seems to becoming a dying form of debate based on experiences at Cal and Stanford. My daughter takes home the trophies but it's tough when you're up against prejudiced judges who blatantly state: " if the judge had been any other judge, you would have won, however as a policy judge I know that you L-Ders don't know anything about foriegn policy. You stated that the United Nations can make foreign policy decisions - they can't so you lose." Another judge simply counted up the number of facts and gave their decision to the one who had the greatest number. These judges prejudices and lack of an ability to see the eloquence of an argument - the logic, the clash, the ability to persuade and make a counter argument seems lost on them. AND these are COACHES not parents! As far as I am concerned, it doesn't take much brains to spread - just honed breathing techniques. If my daughter really wanted to compete in policy, that's what she'd be doing.

I would love to witness a debate based on principles and values rather than example battles and fact splurting. But I'm not counting on it. My daughter will have to choose to spread next year (and as a mother, I don't want her spreading for debate or anything else) or choose to give up debate. There is beauty in language. Why can't high school kids be given a vehicle for a more eloquent and sophisticated form of speaking?

Anonymous said...

jim, can you please give us some more sample values and criterions ideas

Anonymous said...

Not hearing a lot of arguments on the neg. side unfortunately,

How about, jury nullification is not a just check on the gov't if it's done primarily for the purposes of furthering a political cause or to make a political statement in the name of a special interest group. If it's being done for the purposes of changing laws, there are more effective and appropriate means for facilitating change. The legislature is the body that changes laws.

Or if it's such a just position that the jury is taking when nullifying wouldn't it be written into law (or don't the people have the power to make this happen?)

In the case of Harvard Professor Paul Butler who states that blacks should use jury nullification to let off blacks that commit crimes - drugs, robberies, theft because they're black and 1/3 of blacks are in jail or prison (see 60 Minutes interview - it's great - p://www.youtube.com/watch?v=e8eQ_EYwQQI) hmmm, I think that can be argued either way. Is it unjust to jail blacks because the black community thinks it's an injustice or is Butler advocating a position as a political statement? Can someone argue that it's not a just check but rather practiced for another agenda?

Does jury nullification REPRESENT a just check when its purposes are social anarchy or unrest?

Some even argue that the OJ Simpson case was an example of jury nullification.

Maybe this example shouldn't be touched by a ten foot poll. But I think it's a compelling example.

Jim Anderson said...

James, you argue that juries are competent to apply law, and even to interpret it--but it's undemocratic or unfair to let one person (a nullifier causing a mistrial) to undo a democratically legitimized law.

Anonymous 1, you *can* use the rule of law on the Aff, but it's likely to be successfully turned by the Neg.

Anonymous 2, I hear you, and amen, sister. The Spread hasn't infected Public Forum--yet--so maybe that'll be the holdout. Or Congressional Debate. And we'll always have Oratory. (But as LD becomes more and more policyish, you and I become more and more dinosaurish.)

Anonymous 3, I have a link up there with nothing but V/C pairs, with lots of suggestions from other debaters.

Anonymous 4, the "equal protection of the law" and "due process" objections are solid for the Neg. Any jury that releases itself from the tether of the law is capable of deciding on a whim. And, as I noted above, a nullifying jury is a legislature-of-one, which seems undemocratic.

Of course, to the argument that nullification can be a tool of social anarchy or unrest--well, so can freedom of speech or the press. Maybe the better argument is to claim that JN isn't just *or* unjust. It's a tool or process that depends entirely on the intentions of the user.

Anonymous said...

The ncfl topic is Resolved: That the United States government has a moral obligation to afford the same constitutional rights to all people on United States soil.

What are your thoughts on this as in v/vc and contentions and are you going to create a page for this.

Also, do you know if they have briefs for this topic.?

Jim Anderson said...

anonymous, I hadn't planned on it, but the topic looks interesting, so I might at least put up one post on the subject. I usually stick with NFL resolutions.

orgean debater said...

what really is rule of law i just started on my neg one week back and I don't the value

Anonymous said...

you could use the v as justice and legal expertise as your vc for neg

Anonymous said...

is there any way to warrant that the US consistently strives to achieve democratic ideals?

Jim Anderson said...

o.g., the rule of law is explained in this pretty decent Wikipedia post. The overall idea is that governments are bound by laws, not by whims, whether of the masses or of individual tyrants.

Latest anonymous, I don't know if there's a rock-solid way to warrant that the U.S. consistently does seek democratic ideals--even the best democracies have their off decades--but since we're talking LD, which is about values, it's probably easier to warrant that the U.S. ought to.

Anonymous said...

Okay I've only been doing LD for about a year and I'm only in middle school so I still need to be poked with a stick before I can understand half of this stuff.

Jim... you said that in a society without nullification many innocent would be punished. Why is that? And how could you counter an attack the negative uses saying nullification lessens democratic legitmacy

Jim Anderson said...

Anonymous, A society without nullification means that juries must apply the law, regardless of whether the law is in fact just--or whether the punishment required by the law is proportional. Because of the vagaries of the democratic process, imperfect laws are passed all the time; nullification is a way to ensure that, in the limited cases where an innocent person is guilty of breaking a bad law, they are not punished.

Regarding the second claim, one might argue that the jury is merely democracy in miniature: a group of strangers come together to judge the law that the majority has set down. Through deliberation and consensus, they reach a verdict. They are drawn from the surrounding community--closer, in that respect, than the representatives far off in Congress or the state legislature who are beholden to special interests. (For more on this line of argument, see here.)