Jury nullification is a process by which a criminal jury determines that a law is unconscienable, either morally or as it applies to a specific case, and therefore is to be ignored despite the guilt of the defendant. The US Supreme Court has determined that juries do have the power to nullify, but they also determined that juries need not be informed of this power. As a result, very few jurors have any idea that they can ignore the law, if they feel the case before them warrants that action.
Historical examples of jury nullification are abundant. Early in our nation’s history, jurors were regularly informed of this power. Positive examples of jury nullification include cases involving the Fugitive Slave laws, and of course, Prohibition. Negative examples include the refusal of some juries in the south to find white supremacists guilty of murdering African-Americans or civil rights workers, despite substantial evidence of guilt.
Judges worry that informing juries of this power will result in juror anarchy, with jurors deciding cases based on their sympathies rather than on the facts of the case; some argue that this is what happened in the OJ Simpson trial of the early 90s. Another judicial concern is that jury nullification will result in an increase in the number of hung juries, or that jurors will be overwhelmed if they are expected to interpret not only the facts, but the fairness of the law as well. An ongoing concern is that, once found not guilty by a jury, a defendant is protected from ever being tried again on that charge under the Double Jeopardy Clause; so if jurors nullify, guilty defendants will go free. The current conventional wisdom is therefore to not only not inform jurors of their nullification powers, but to specifically instruct jurors that they are to determine the facts, not the law, and that they must follow the law exactly as it is presented to them by the court.
Jurors, of course, take an oath to make a determination based on the evidence presented. Jury nullification is therefore not properly used to send a predetermined message, or to forward one’s personal views; but rather is properly used on the basis of a consensus of juror conscience after hearing all the evidence and being instructed on the pertinent law.
The criminal justice system depends upon juries to make the most serious life-altering decisions on a daily basis, and the majority of Americans believe jurors – not judges, not lawyers – are the most important facet of the American justice system. So shouldn’t jurors be informed of the full extent of their powers?
Negative cases notwithstanding, I believe all juries should be made aware, as part of the formal jury instruction process, of their right to nullify. Jurors are generally fair-minded law-abiding people who take their responsibility very seriously, and try very hard to do what’s right; and, if they think someone is being railroaded by an unfair law, I believe they will nullify if they realize they can do so. I also believe that juries would not nullify if the specific case doesn’t call for that action; in other words, I honestly don’t think the vast majority of juries would nullify just because they can, but would do so exclusively when they believe it to be the only appropriate response under the circumstances. I really don’t think we have to worry too much about the hate groups taking over the jury box in the 21st century, given modern methods of jury selection.
There are any number of laws which should be nullified when appropriate. For example, the three-strikes law doesn’t always seem fair. If someone has molested children and been convicted of those felonies twice before, gotten out of prison and their third strike is for molesting yet another child, then yes, send them to prison for life with no possibility of parole, since there is no doubt whatsoever that their freedom poses a serious danger to the most vulnerable members of our society. However, if someone’s first and second strikes were non-violent offenses, and their third strike involves, for example, stealing food, formula, diapers, etc for their children, a fully informed jury would nullify rather than finding them guilty, when that verdict would automatically send them to prison for the rest of their life.
Jury nullification would also act as a deterrent for overzealous police and prosecutors who file charges which are greatly inflated considering the crime actually committed. In fact, jury nullification probably would result in a number of common charges becoming completely impotent.
Of course, that’s the unspoken reason why no one is in a hurry to inform jurors of their nullification rights. In many jurisdictions, misdemeanor charges such as simple possession of marijuana or public intoxication may be regularly ignored by juries, if the jury is aware that they can do that. Resisting arrest without violence is another charge the juries would nullify with regularity, since the average person recognizes that’s usually a bogus charge anyway; even in cases where the resistance is allegedly with violence, it’s many times just a way for law enforcement to explain acts of brutality on their own part. The average juror is far from stupid, is possessed of common sense, and doesn’t automatically trust the police; as a result, they understand these concepts and are fully capable of considering whether the law appears to be fair as it is being applied in a specific case which has been presented to them. That’s why jury nullification is considered a dangerous power, and one which should not be discussed openly when it most matters: in court.
The courts don’t want juries to start nullifying in the type of cases I just mentioned, because they make a great deal of their operating revenue from the fines imposed on such charges, and some of those charges (like resisting arrest) are usually just used as a prosecution tool in plea bargains. The greatly increased number of trials demanded, in cases likely to result in nullification, would render the courts unable to hear all the cases presented, thus requiring that additional judges be seated (and possibly more courtrooms built) at a huge additional cost. Financially, it would be a nightmare for the court system, should juries decide to nullify certain types of common criminal cases across the board.
Then again, maybe the criminal justice system would take a hint, and realize that the average person doesn’t think possession of a marijuana roach should be a crime at all, nor should it be a crime to carry pills outside the prescription bottle, as long as the person in possession of those pills can show the pills were actually prescribed for them (not unlike how one can in most jurisdictions get ticketed for lacking proof of auto insurance, but they throw out the ticket if you show up at the courthouse within a certain number of days with proof that you were indeed insured).
Those are just a few examples among many, where jury nullification could send a serious message from society to lawmakers and law enforcement, especially in the so-called “War On Drugs”: you can make the laws, and you can enforce them, but we as a society don’t consider them crimes so we will not convict anyone of breaking them. Jury nullification is thus an extremely powerful tool for the populace, to maintain a balance between individual rights and governmental powers. Of course the powers-that-be, who assume the rest of us are not intelligent or educated enough to understand the law – and who believe that just because they are power-hungry, the average juror must also be that way – are in no hurry to inform juries that they wield that much power.
Please bear in mind, I support the concept of juries being informed in other areas as well, so they can make decisions with full and complete knowledge of the potential outcome of their decisions; and that knife cuts both ways. For example, juries should also be informed of the realities in sentencing. Jurors have a right to know if, for example, a 10-year sentence would in actuality only result in about 6 years’ incarceration; and if a life sentence doesn’t really mean that the person will be in prison for life. That kind of information would, of course, result in much more severe punishment for many offenders, in jurisdictions where juries make sentencing decisions.
Trusting jurors to make the right decision in individual cases forms the very basis of our justice system. We should therefore never restrict any jury’s right to be informed of the full extent of their powers, regardless of whether that makes judges or attorneys uncomfortable. To the judges and lawyers, what they do in a courtroom is a job. To a juror, it’s far more, since they are making a decision which will impact another person’s life, possibly forever. To not provide jurors with information regarding the full extent of their powers is therefore, quite frankly, unconscienable in and of itself.
Less
aynrkey
bostonteapartygoer
Kenn Jacobine
mattdharris
Mike Seebeck
Miche
paulie
Jim Davidson
ponggod
Stuart Richards
Steven Greffenius
Todd Andrew Barnett
Yes juries should be informed of the right to nullify.
And the LP should be in the forefront on pushing this right.
It should always be in the top five issues we promote.
MHW
It shouldn’t be a priority, per se, but we should fight for it.
Great post ENM. I wanted to add that I have read that Maryland and Indiana (and perhaps Georgia) are very clear on jury nullification. From Drug Policy Alliance:
I agree with MH Wilson here – this is definitely something the LP should be consistent in supporting. Awesome post!
It has occurred to me that my own concerns have their own answer, by and large, in the form of those whom seek to prosecute the laws.
The practice of overturning laws through nullification can cause unjust laws to not be prosecuted. This in turn makes it less likely for real criminals to obtain jury nullification.
Especially in a society that is itself already just.
Me too, regarding Wilson’s suggestion that the LP always keep this as one of their forefront issues. No other political parties are making an issue of it, but it’s so fundamental to the cause of liberty and I think it’s something that a fairly broad cross-section of the general public would support if it were ever presented to them.
May not be able to make an issue for long. NYT reports:
Bad news for you Michelle. The Maryland constitution has been interpreted to be more in line with the Federal rule, based on an equal protection challenge in the 1980s(?). I don’t have the citation on me, but the clear text has been eviscerated.
Jurors not only have the right to nullify, but an obligation to do so when the law is in opposition to their conscience. For a judge to refuse to inform the jury of this right and obligation is “jury tampering” in the extreme. It is cause for the judge to be removed from the bench and placed in front of a jury that understands the seriousness of his crimes and hands out a verdict appropriately severe.
Thank you for sharing your opinion, Kent, but you’re incorrect. There is a crime of jury tampering and telling the jury that they are obligated to uphold the law does not meet the elements of it.
It’s a nice rhetorical flourish, similar to “taxes are theft,” but be careful about confusing rhetoric with truth.
Mr. X,
As I don’t live in Maryland, and certainly don’t plan to become a defendant there, it is not bad news for me personally. I was reposting what I read. Here in TX, there has been much legal rambling over it and I believe that the outcome was much as you described in another thread; judge will remove you if he learns that you plan to nullify.
I was called to jury duty recently. I was so excited and I hoped A) that it would be a non-violent drug offense, B) I would get picked and C) that I could keep my mouth shut long enough to make a difference. I was not selected. They thanked us for our time and said we were free from jury duty for two years.
Y’know, there is an easy way to avoid the perjury problem of jury nullification. “I will vote as my conscience and the law require me to do so.”
If a juror goes into a case planning to set a guilty defendant free regardless of the evidence, that’s not jury nullification; but is instead a predetermined prejudice for one side and against the other, and a very serious violation of the juror oath.
Jury nullification occurs after a jury has heard all the evidence, has been instructed on the law by the court, and decides – after considering the facts and the law – that the law is unconscienable as it applies to that particular set of facts.
Many believe, as I do, that ALL statutes punishing victimless “crimes” are unconscionable. The particular facts of the case are irrelevant.
“Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions…”
That is the case, and it sucks, but you can bet that a few high-profile jury nullifications will have people itching to roll the dice and let ther cases go to trial.
It is worth noting that the main reason why trials are so far and few between is because prosecutors cannot afford to execute many trials at any given time. It’s too costly for them.
So they use shenanigans to intimidate people out of it. Google Matthew Bandy and you’ll see what I mean.
Yes, juries should be informed of their right to vote against the enforcement of bad laws. That there is any debate to the contrary, and anything less than extreme support for this idea speaks very ill of the libertarian movement.
MHW is right, Kent M is right, Paulie’s conclusion is right…
Elf Nino’s mom is completely incorrect. Opposition to the law AND to the bogus oaths of voir dire are both unconstitutional and diametrically opposed to jury rights. The three historical common law functions of the jury are to
determine:
1) Whether the law was broken
2) Whether the law itself is moral
3) Whether the law, if moral, is being fairly applied in the specific case
ENM states incorrectly that only #2 above is legitimate reason to nullify. She states correctly that a pre-existing bias against the law is a bias, but this is meaningless. It is morally OK to have a pre-existing bias against injustice.
Moreover, “voir dire” is the practice that allows prosecutors to question jurors for “bias” and remove them for possessing anti-government bias. “Voir dire” (French for jury rigging) is a relatively new practice that was instituted in American courts in the early 1850s, when Northerners were nullifying the Fugitive Slave Act in large numbers. Does ENM think they should have considered the enforcement of the fugitive slave act? That’s preposterous for any libertarian to believe.
Since William Penn, the denial of the right of any law by the jury has been upheld as the people’s supreme power over government. Hence, both Paulie and ENM are totally wrong about the proper function of a jury:
Paulie: “Jurors, of course, take an oath to make a determination based on the evidence presented. Jury nullification is therefore not properly used to send a predetermined message, or to forward one’s personal views; but rather is properly used on the basis of a consensus of juror conscience after hearing all the evidence and being instructed on the pertinent law.”
The founders all believed that one of the primary purposes of the jury was to judge the law itself. Since this is true, what Paulie wrote is partly wrong. The ability of any juror to hang the jury contradicts Paulie’s “consensus” statement. The jury is designed solely as a check on the abusive power of government to punish. Judicial instruction is tyranny, except in so far as it informs the jury about the nature of the law in an unbiased way (which never happens in today’s courts, since the judge upholds the prosecutors’ “motions in limine” —AKA gag orders–, and other tyrannies, as well as accepting blatant untruths about standing from police officers and other government agents. See http://marcstevens.net for more on that subject.)
If we can return the practice of seating randomly-selected juries and informing them about their right to veto bad laws (the fact that they are superior in authority to any judge), we can prevent unjust punishments. Preventing unjust punishments this way would restore power to the people, and simultaneously protect every individual right. It would also enlighten the public about what they never learned in high school civics class: the jury is the fourth and most powerful branch of government.
For a basic education on jury rights, please take a look at these fine sources. The ISIL links are more concise than the FIJA link, but the FIJA link has volumes of useful information.
http://www.fija.org
http://isil.org/resources/lit/history-jury-null.html
http://isil.org/resources/lit/new-hope-fija.html
“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.”
-Thomas Jefferson
“If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.”
Henry David Thoreau
If every citizen in the USA understood their rights as jurors, including the fact that the prosecutor would try to have them removed during “voir dire” (if they showed any sign of intelligence) there would be no tyranny.
Jury nullification of law is 100% of the battle for individual freedom. If as much effort and financing went into jury rights activism as currently goes into attempting to win elections, the United States would already be 100% libertarian.
I cringe when I encounter libertarians who can’t grasp the concept of jury rights. It’s like an 1850s abolitionist not being in favor of equal rights for blacks: …backwards.
-Jake
PLEASE SPREAD THIS LIBERTARIAN JURY RIGHTS YOUTUBE COMMENT:
Google “Fully Informed Jury Association”
1) Voir Dire – 1850 – jury questioning instated to rig juries in favor of those who agreed with the fugitive slave act.
2) 1800s-1960s instatement of mandatory bar membership (licensing of lawyers) meant that justice was licensed by the government, and those who disagreed with the law could be disbarred
3) “Sparf and Hansen v the USA” (1895) allowed judges to instruct the jury, and fail to inform them of their rights
4) Gagging of free speech in court
I agree with the pro-justice leaning spirit of juries being able to nullify unlawful “laws” in order to set free persons not guilty of any initation of force or fraud.
However, as an anarchist, there are many fundamental things about juries that I cannot necessarily endorse.
There is nothing inherent in a natural-rights justice system that dictates that a certain number of people – or anyone – should have the power to “decide” your guilt or innocence, even presupposing patently libertarian laws being enforced. A pure, libertarian, rights-based society doesn’t logically lead to the existence of jurors or juries at all, not even privately financed ones.
The most well-meaning, well-run jury system still has the capacity for initiation of force (erroneously convicting an innocent). Therefore, no jury characteristic is a matter of principle; it only boils down to a practical matter (a highly arguable matter at that) where the delicate matter of rendering justice is gone about imperfectly with real potential (actually inevitabilities) of actually creating some injustices along the way.
Gary, I welcome additional strong checks on government power, but nothing is as strong a check as a proper “common law” jury system (which we don’t have).
However, your post seems to not comprehend how strong of a check proper juries are. They are –by far– the strongest check on government power today.
It is to the Libertarian Party’s shame that they do not seek to correct the gradual systemic erosions to jury rights that have occurred over the last 158 years.
Were even the 4 erosions mentioned above to be corrected, we would be vastly closer to living in a libertarian society. Or do you really think that one in 12 randomly-chosen and seated people would not choose to nullify the marijuana laws? Somewhere around 50% of the public has smoked marijuana, but they are never intentionally allowed on a jury, if they know they can nullify.
Moreover, even most of the libertarians posting on this board seem to have no comprehension of how to survive “voir dire”, and several “libertarians” I’ve spoken with over the last few days had allowed themselves to be removed from a jury. –Thus allowing themselves to be the ignorant tools of some insane and compassionless prosecutor.
Again, this confirms what I realized a few years ago: Most libertarians don’t care enough for freedom to try to make it a reality. They are fantastic when they are in cloud-cuckoo land, and don’t have to talk to conformists, in order to get the freedom that they claim to want. The second they do, though, is the second they decide they’d rather be online talking with other people who know as much as they do (or perhaps at a philosophy supper club meeting, doing the same thing).
I sincerely doubt that you can find a better means of inserting intelligence, conscience, and judgement into the justice system.
And if you think there is no need for “external justice” then you clearly aren’t familiar with the nature of crime in the world. (It appears you may favor a DRO-style legal system, but I can’t say that for sure, based on your post.)
Moreover, even with juries currently in their current sorry state, they are the only portion of the system that makes use of libertarian educational efforts to limit the power of the state.
All other portions of the state must be abolished to reduce their force, since those who are employed in all other positions are so employed because they sought a position of force.
You’re right only about one thing: human intelligence is weak, in comparison to machine intelligence.
I have no doubt that an expert system (if programmed by a conscientious libertarian) could come back with consistent pro-justice recommendations in any trial, assuming its inputs were properly entered.
But this last point is a fantasy, because an intelligent and corrupted statist could just as easily program a perversion into the system that favored “private” prison contractors (as the current legal system currently does).
All that said, conscience, and the reticence to take responsibility for an informed and personal role in punishment (“passing judgement”) is a great power of juries. Beyond that, the prosecutor’s unwillingness to gamble with bad odds of informed jurors is the greatest check on government power currently known to man.
That’s why they had to stack the system the way they did.
Is one in 12 people a libertarian? No. Is one in 12 people libertarian in some way? It’s likely. In ten trials, you start to run into libertarians (or people who refuse to punsih someone without good reason) at least once (120 people).
Those prosecutors who lose 1/10 trials (out of the gate, and never mind the details that would cause a non-libertarian to nullify) are quickly seen to be overzealous tyrants who are wasting state resources. And this is by their own bosses, who control their purse strings.
The prison system was minimal when there were informed juries. As such, I propose returning to such a system because it is a vast improvement over the current system.
I (and Lysander Spooner) also disagree that there is nothing in the study of “natural law” that authorizes jurors to try someone. Read his essay “An Essay on the Trial by Jury”. Spooner was too soon to witness the explosion in computing power and the laws of information that proved him right, but he was good with statistical odds, and understood the power of randomly-inserted conscience to cow the state. There are many laws of information science that indicate that you cannot remove bias unless you decentralize power. If everyone trying you is a cop, then you’ll never have justice. If noone tries anyone, then Platt and Matix (two real-life villians documented in “Unintended Consequences” by John Ross) get to ride through town, shoot people with high-powered rifles, and steal their cars –until they die happy of old age.
I’ve never seen an anarchist system that adequately addresses psychopathology. (Even if it addresses it as well or better than the current system does.)
So who do we trust to enact justice? If we let cops try them, then we let cops try marijuana smokers. If we let the nearest thing they have to peers try them, then there is a great chance that –unless random human conscience can convict them– they will be set free (unless they are truly evil and have committed serious wrong).
Is there anything you disagree with in the “common law”? Causation (intentioned action and action) and harm?
Juries are a game of statistical odds. Proper juries set people free more often than they convict. Improper juries of today convict almost 100% of the time.
The solution seems obvious to me: reinstate proper juries.
And as far as anarchist solutions that work better than juries, and can be applied starting today, there is only radio silence.
Until we reach the singularity, juries are the best way to deal with the problem of limited human intelligence judging human actions that initiate force.
In the anarchist “system” (unless we’re talking modified DRO where DROs can enact common law, with radomly-selected nonmember juries for the initiation of force), when my girlfriend claims you raped her, I blow your ass away.
In the proper “common law” jury system, when the evidence is presented that her wounds were self-inflicted and there was no truthful evidence for her claims, …you live.
All evidence is that the proper jury system can work great, but that it is no longer the proper jury system. Even the improper jury system that we have works great when it is made proper. …So, before we judge what doesn’t exist (but which can exist, and did once exist), let’s put it into place, and see how well we can do?
…Or we can theorize about what it would be like to live among the clouds while having no intention or means of building anything that raises our elevation.
As far as a DRO (Dispute Resolution Organization) system that relies on voluntary funding and membership, and has men with guns ready to arrest, I could support such a system. There would still need to be random, unbiased intelligence added into such a system, so there would still need to be juries, or there would need to be a more intelligent public all capable of assessing justice-oriented computer programs.
While those options might be the future of justice, juries are justice at its best, right now. With each state interference that we remove from the current jury system, we get closer to justice.
“when my girlfriend claims you raped her, I blow your ass away.
In the proper “common law” jury system, when the evidence is presented that her wounds were self-inflicted and there was no truthful evidence for her claims, …you live.”
There is nothing in my post that is inaccurate or inconsistent. You still don’t have a “natural” right to a trial by a randomly-chosen, arbitrary number of jurors. Nor, as your illustration suggests, do you have a “natural obligation” to sit through or endure a trial – whether by juries or otherwise – if you’re innocent of anything, simply because someone fingers you. If I’m innocent, why should I HAVE TO risk conviction by enduring a trial?
It still comes down to practical and not principle.
“…Or we can theorize about what it would be like to live among the clouds while having no intention or means of building anything that raises our elevation.”
There is no dichotomy – as you seem to think – between knowing and understanding pure princple theory on the one hand, and accepting a flawed reality and trying to work the best of a bad situation (and bad it is, indeed), formidable as it may be.
I choose to be both idealistic and realistic.
“So who do we trust to enact justice? If we let cops try them, then we let cops try marijuana smokers.”
Maybe not so fast. I had a former cop (he told me he used to arrest pot smokers) sign my petition the other day, after I told him it was to “stop arresting” people for “using marijuana”.
And as an addendum to my above posts, it’s as simple as this (from a natural rights perspective):
If you’re innocent, you have a right to REFUSE to be tried, period. (And fuck the so-called “right” to a trial by jury, or trial of any kind, for that matter; remember, I’ve been there, and I’m sick of my “right to be tried” that takes valuable time out of my schedule and keeps me from working and being productive and getting to play.)
If you’re guilty, then not only are you obliged to be “tried”, but you’re obliged to bear rectification and restitution costs of your culpable actions.
A good “system” needs to sort that out first, before it reaches the question of “who tries”, otherwise, people like me spend their whole lives unncessarily bothered by having to defend themselves from bullshit (and yes, bullshit even from people who have claimed all their lives to be libertarians (Haugh, Kohlhaas, et al).
Gary wrote: “It still comes down to practical and not principle.”
I reply: …As do all matters of pursuing justice. This is a weak statement on your behalf. Still, there is nothing you can do to advance the cause of libertarianism that is more effective than advocating a return of proper jury trials. No other check on government power is stronger, short of the arrival of a technological singularity (mind and force). Both Thomas Jefferson and Lysander Spooner realized this (minus the part about the singularity, which they could have had no comprehension of).
Gary wrote: “I choose to be both idealistic and realistic.”
I respond: Good, then you choose jury rights (the optimal check on government until people/machines are smarter), and we’re basically in agreement.
Gary replied: ““Me: So who do we trust to enact justice? If we let cops try them, then we let cops try marijuana smokers.”
Gary: Maybe not so fast. I had a former cop (he told me he used to arrest pot smokers) sign my petition the other day, after I told him it was to “stop arresting” people for “using marijuana”.”
I respond: I indicate a principle by naming the rule, and you reply with the exception to the rule, just to be a contrarian. I’m not going to even explain why this is wrong, beyond this: There’s a reason why defense attorneys eliminate cops from the jury during defensive “voir dire”. It’s because –as a demographic– they are collecting paychecks from a system that they are clearly and obviously beholden to. An exceptional or moral cop is the exception to the rule, and you know it.
See: http://www.kopbusters.com
Gary wrote: If you’re innocent, you have a right to REFUSE to be tried, period. (And fuck the so-called “right” to a trial by jury, or trial of any kind, for that matter; remember, I’ve been there, and I’m sick of my “right to be tried” that takes valuable time out of my schedule and keeps me from working and being productive and getting to play.)
I respond: Your problems are not with a fair trial, they are with a lack of a trial of any kind, brought to bear by the lack of justice caused by a lack of common law jury trials, which has been clearly enumerated in the links I posted. One of your largest problems is with bar-licensing of lawyers, which increases the cost of legal advice, while decreasing its quality by eliminating competition. Also, you have a problem with precedent, and the amorality that it inserts into a coerced jury system. The two prior problems would be eliminated with a proper “common law”/constitutional American/libertarian jury trial system. Moreover, the qualifier “if your innocent” is meaningless in its use here, since the purpose of the trial is to determine innocence or guilt of wrongdoing.
Gary wrote: If you’re guilty, then not only are you obliged to be “tried”, but you’re obliged to bear rectification and restitution costs of your culpable actions.
I respond: Are you a simpleton? 100% of the purpose of a jury is to determine innocence or guilt. There is no adequate (perfect justice) system for determining guilt. I prefer the moderating effect of juries to that of –you don’t say– whatever system you propose as an alternative. I suspect you have no alternative, and that you haven’t thought it out fully. I agree with you that (those found guilty in a trial) who are in fact guilty should have to pay for the costs they’ve imposed on the innocent of the trial (time) and restitution for the offense itself.
Gary wrote: A good “system” needs to sort that out first, before it reaches the question of “who tries”, otherwise, people like me spend their whole lives unncessarily bothered by having to defend themselves from bullshit (and yes, bullshit even from people who have claimed all their lives to be libertarians (Haugh, Kohlhaas, et al).
I respond: I have no idea what you are proposing. Let me see if I can even understand what you’re saying. A good system needs to sort out who is innocent and guilty before it reaches the question of how to sort out who is innocent or guilty.
This makes zero sense.
If you are stating that there need to be good rules for establishing evidence, then I agree. But this isn’t the problem with our courts. The rules for evidence are very good. The problem with the US court system is that it has done away with common law juries that were previously the greatest check on government power ever devised by man.
Sadly, rather than return the US to proper jury trials, the Libertarian Party (and most libertarian candidates) advocate putting forth positions that most people are not intellectually equipped to analyze.
Sadly, it appears that most libertarians are not intellectually equipped to analyze jury trial, nor are they concerned with learning how our system ran afoul.
Until these problems are corrected, I expect the LP to be a marginal force in society. After these problems are corrected, I expect the Libertarian Party to be a major force in US politics.
The last name of the guy who installed insulation in my mother’s house had the last name Penn. He was familiar with William Penn, and had done more research than most libertarians about common law juries. He asked me why the LP didn’t focus more on jury rights, and decentralization of power that is obviously constitutional. He wondered why we aren’t selling ourselves to the public as the party that wants what we’re all taught in school that we’re supposed to have.
I replied: “You’re exactly right, my friend! Why aren’t we doing that? …I personally am.”
Gary, please follow the ISIL links. They aren’t there as examples of great graphic design. They’re there because they destroy all arguments against impartial jury selection and operation.
Bon chance,
-Jake
“I reply: …As do all matters of pursuing justice. This is a weak statement on your behalf.”
Here you seem to comprehend my point, even taking it to its universal conclusion…and then proceed to say it’s a ‘weak statement’. WTF? What’s up with that?
“I respond: I have no idea what you are proposing. Let me see if I can even understand what you’re saying. A good system needs to sort out who is innocent and guilty before it reaches the question of how to sort out who is innocent or guilty.
This makes zero sense.”
You’re only just now figuring out there’s a paradox when it comes to administration of justice, Jake?
“I respond: I indicate a principle by naming the rule, and you reply with the exception to the rule, just to be a contrarian.”
Not really. That’s why I said “maybe” (not so fast). I’ve heard it said (by some cops, even) that cops really would prefer not deal with enforcing marijuana laws, but feel they “have to” as long as it’s on the books and are being watched. So – and pardon my pun – the jury may still be out on that one. I can’t say; I haven’t seen polling data on it. You could be right – I’m just not sure and it certainly wasn’t intended to “be contrarian”.
“I respond: Your problems are not with a fair trial, they are with a lack of a trial of any kind, brought to bear by the lack of justice caused by a lack of common law jury trials, which has been clearly enumerated in the links I posted. One of your largest problems is with bar-licensing of lawyers, which increases the cost of legal advice, while decreasing its quality by eliminating competition. Also, you have a problem with precedent, and the amorality that it inserts into a coerced jury system. The two prior problems would be eliminated with a proper “common law”/constitutional American/libertarian jury trial system. Moreover, the qualifier “if your innocent” is meaningless in its use here, since the purpose of the trial is to determine innocence or guilt of wrongdoing.”
No, my problems aren’t so much with the existence of trials, fair or otherwise – it’s in spending an inordinate amount of my time being accused of things, of which I’m innocent. And this includes people who say they want a Stagte de novo, or a libertarian society. You still haven’t convinced me why I should HAVE to spend my time letting people “try” me, just because some other people wish to lie and falsely accuse. So no, it’s not meaningless. (Why don’t the false accusers ever have to stand trial?? But yeah, yeah – I know, that gets addressed in anarcho capitalist justice systems…I’ve read Rothbard.)
“I prefer the moderating effect of juries to that of –you don’t say– whatever system you propose as an alternative. I suspect you have no alternative, and that you haven’t thought it out fully.”
Correct on one count, incorrect on the other. I’ve thought it out fully (likely more thorough than you, actually) but no, I haven’t come up with a perfect alternative. My thesis is that no one can.
However, if you have a natural right to be left alone (not agressed upon) then you have a natural right not to be forced to subject yourself to a trial, provided you have not aggressed upon anyone else. That’s libertarianism 101. There’s an element of slavery involved in being forced to be put on trial, and since there is, you’d better not put an innocent person on trial. Paradox, yes. But not my problem. If you think I’m guilty but I’m in fact innocent, it’s your problem, not mine. And scream all you want about the paradox and how it can’t work and carts before horses, blah blah blah. My natural right as an innocent person is absolute, and supercedes any fallible judicial procedures, including juries.
Right now, I support having the kind of juries you champion, as opposed to its current attempted alternatives, but I see the issue as a post-libertarian (what to do after we suspect a breach of libertarianism) one rather than one of defining libertarianism.
You cannot refute, however, that a person who has NOT committed an unlibertarian act has a natural, inalienable right to REFUSE to be subjected to any aspect of a trial, including the verdict.
“as a demographic– they [cops] are collecting paychecks from a system that they are clearly and obviously beholden to. An exceptional or moral cop is the exception to the rule, and you know it.”
That’s a silly statement, since cops in a State-run system are going to be getting paychecks whether or not there are laws on the books relating to marijuana. Policy reforms – as long as they don’t threaten the amount they get paid or their benefits – such as relaxing marijuana restrictions may well be palatable to the typical cop, but I can’t speak to the overall numbers. I have talked to many cops who say they would rather not deal with pot smokers. On the other hand, it may be an issue that cops would feel safer spending time around pot smokers (going after) than murderers and rapists.
“My natural right as an innocent person is absolute, and supercedes any fallible judicial procedures, including juries.”
I reply: Theoretically, you also have a right to not eat food and a right to never speak. But fighting for those rights would be equally silly. All kinds of rights are defined by human existence. In fact, they all are. If everyone was automatically psychic and there was no power of anyone to restrict speech, it wouldn’t be enshrined as a natural right.
The right of the jury trial is best defined as your right to equal justice under the law. (To an impartial determiner of fact, intent, and moral right.)
I generally disagree with your interpretation of reality, but since you want less government and I want less goverment, I think you’re a good person and I wish you the best of luck.
You wrote: “That’s a silly statement, since cops in a State-run system are going to be getting paychecks whether or not there are laws on the books relating to marijuana. ”
If all cops were logical, you’d be right. But they aren’t so you’re wrong. They are emotionally tied to defenign their prior actions. If they’ve arrested people and ruined lives enforcing the drug laws, they can’t feel good about themselves if they believe the drug laws are wrong. Empirical evidence shows that police support the drug laws for a variety of bad reasons. Hence what I said about defense prosecutors seeking to remove law enforcment (for law enforcement’s common financial and historically-motivated moral bias) during “voir dire”.
“You cannot refute, however, that a person who has NOT committed an unlibertarian act has a natural, inalienable right to REFUSE to be subjected to any aspect of a trial, including the verdict.”
Theoretically, sure. Practically, this is an asinine statement.
But libertarian practicality defines any theory of human rights.
By your definition, we all have a right to appeal to the all-knowing. But the all-knowing is a fiction, and does not exist outside of your definition of it.
As such, your “innocence” is simply an argument. An argument that will be presented at a trial in cases where guilt is uncertain.
All of your statements are weak, because they don’t contradict any of my assertions. In real life, if there are two people who are found standing next to a raped and murdered kid, and only one of their semen is inside the kid, this is a clear cut case where the innocent man has a right to a trial, and the grieving parents have a right to try him, even if he doesn’t want it.
…Because it’s a better alternative than simply killing them both on the spot, which was the likelihood prior to jury trials.
You put forth an imaginary reality that a person has a right to refuse to be tried, without suggesting a more libertarian alternative that can in any way be practiced. As such, your arguments discredit the idea of libertarianism. (ie: If all libertarians think what you think, then rape and murder will go unpunished, because there will be no mechanism to separate the guilty from the innocent.)
So, hopefully, you do not preach your concept that innocent people have a right to never be tried (in the year 2009, unamplified human intelligence being what it is).
If you do preach this to the uninitiated, then you are preaching a system that even the layman can see would never work in any capacity.
Again, the ISIL links are there for your benefit. The preservation of jury rights should always be in the top 5 issues the Libertarian Party wishes to promote as its SOLUTION to current problems.
The problems you present with malicious prosecution are dramatically reduced by proper jury trial, because there is then a great chance that any jury will find on behalf of a countersuit from the defendant.
“I reply: Theoretically, you also have a right to not eat food and a right to never speak. But fighting for those rights would be equally silly. All kinds of rights are defined by human existence. In fact, they all are. If everyone was automatically psychic and there was no power of anyone to restrict speech, it wouldn’t be enshrined as a natural right.”
Sounds a lot like rationalization of an excuse to fuck with someone (by deliberately making them endure a trial) and then saying, “it’s ok – that’s just the justice system doing its job”
I don’t believe rights are “enshrined” – they exist, inherently, apart from any other consideration, condition or attitude. (The only thing being, they need not come into play until coming in contact with another human.) You may disagree with the fact that I have a natural right, but that doesn’t mean I still don’t have the right. (what I meant by, apart from attitude)
“The right of the jury trial is best defined as your right to equal justice under the law. (To an impartial determiner of fact, intent, and moral right.)”
Correctly understood, that’s not really a “right”. You have only one right, really, that being to not have initiation of force or fraud perpetrated upon you.
“Theoretically, sure. Practically, this is an asinine statement.”
You don’t seem to be “getting it” – that my right supercedes any other objective. And yes, you have the right to utter the words that it is asinine; however, in reality, it’s not asinine at all..it just is what it is.
“As such, your “innocence” is simply an argument. An argument that will be presented at a trial in cases where guilt is uncertain.”
Like I said, not my problem. I have a right (only if innocent) not to have my fate rest on such arguments. Guilt is always going to be “uncertain” (by someone). You could go on ad infinitum accusing someone (because others will always start out as uncertain) of various things and making them spend their whole lives on trial. And that’s what could happen to unpopular people. Ergo, my innocence would be fact, not simply an argument. So you’re wrong here on this count.
“All of your statements are weak, because they don’t contradict any of my assertions”
Nope. Check again. My statement was sound, because it correctly pointed out that “jury rights” lie in the realm of practicality, not principle. Do some more philosophizing, if necessary.
“where the innocent man has a right to a trial, and the grieving parents have a right to try him, even if he doesn’t want it.”
Nope. Because a “need” doesn’t translate into a “right”. Listen to yourself: you are starting to sound like a welfare state proponent, implying that a patently deserving need translates into an obligation upon another. Wrong. The grieving parents, just like starving parents, have a need, to be sure. But the ends do not justify the means, in no case, no how. You have to learn that judicial administration is a commodity, just like everything else. But you never have the right to pursue the initiation of force or fraud in achieving goals, even worthy ones. There is no natural right to try an innocent person. That may be hard to wrap your mind around, but do you understand the meaning of a paradox?
“…Because it’s a better alternative than simply killing them both on the spot, which was the likelihood prior to jury trials.”
That’s not acceptable, either, in the natural rights view.
“You put forth an imaginary reality that a person has a right to refuse to be tried, without suggesting a more libertarian alternative that can in any way be practiced. As such, your arguments discredit the idea of libertarianism. (ie: If all libertarians think what you think, then rape and murder will go unpunished, because there will be no mechanism to separate the guilty from the innocent.)”
Welcome to the real world, Jake: there IS no mechanism to separate the guilty from the innocent, and never will be. How does that reality discredit librertarianism? It’s a post-libertarian situation, the only caveat being that a wrong decision could thrust an unlibertarian act on top of another one (or presumed one).
My experience is different from yours, so maybe that’s why I’m setting forth so strongly my right to refuse to be tried: because I’ve been “tried” so many times, for no good reason. Why would you assert that someone has a greater “right” to place someone on trial (accuse) over and over again (or do you propose a limit of some sort?) than to say “Enough is enough – I refuse to be tried”?
“If you do preach this to the uninitiated, then you are preaching a system that even the layman can see would never work in any capacity.”
ROFLMAO. And spending practically your whole life up on charges (even from self-professed libertarians) exhausting your time, energy, resources and reputation, WORKS?? Sell this tripe to someone else, not to me.
“The problems you present with malicious prosecution are dramatically reduced by proper jury trial, because there is then a great chance that any jury will find on behalf of a countersuit from the defendant.”
I appreciate this. But hmmm, let me see: “greater chance” vs invoking my absolute right not to be enslaved to any extent? I think you know by now which one I’ll choose, Jake. You’ve got a lot to learn, though.
“ROFLMAO. And spending practically your whole life up on charges (even from self-professed libertarians) exhausting your time, energy, resources and reputation, WORKS?? Sell this tripe to someone else, not to me.”
You’re using the system I’m not referring to (the system without proper jury trial), to attack the system I’m referring to (the system with proper jury trial). It appears you don’t know how much you had to gain from a proper trial. …And did you ever have a proper trial? Nope. Actually, I’d expect you to seek a proper trial above all else, since being denied one has kept you broke and blacklisted (another facet of our system that doesn’t enjoy proper trials is the fact that the law is the domain of the rich, thanks to mandatory bar membership).
The Libertarian Party is full of people who don’t like the “hassle” of contracts, because they wish reserve the ability to do their hirees harm. If you had ever experienced the protection once afforded by the 6th and 7th amendments, your life would be immeasurably better. Hence the tendency of Libertarians –after great fault and endless harrassment of you– to admit you were right, and pay you, in order to prevent a jury trial. And, of course, the fact that lawyers are all bar members means that their primary strategy was always to simply try to bankrupt you, either by nonpayment, or by forcing you to pay legal fees.
As such, there was a huge disincentive towards you finding justice.
The way you refer to the concept of rights, the concept is not useful or practical, legally. Yet rights are solely a legal concept.
Raw nature (fight or flight, unreason, weather patterns, etc…) doesn’t recognize rights, only intellect does.
So by your definition of rights (as an abstraction that cannot ever guide the force of human action), we all only have one right: survival of the fittest.
…And I agree with that. Certainly, there is no law in the USA, right now. Yet we’ve rejected –as a nation– the idea of jury rights. We’ve allowed power-seeking judges and prosecutors to take away our right to jury trial (our right to demand equality under the law, and our right to interfere with power-motivated unlibertarian prosecutions).
By any other law, than random and unbiased jury trial, we have only “might makes right”.
No other system eliminates bias like proper juries, as I’ve previously defined.
I apologize for any heated attacks on your person as opposed to your position. I much more respect your beliefs than the beliefs of the prosecutorial mindset. I just believe that proper jury trials are the path of righteousness for the LP to walk. I see in detail how they benefit those who deserve mercy, when fully implemented.
Since you’ve agreed that such a system would be better than the one we now have, our argument is academic. Philosophically we may disagree, but I will work towards jury rights in the future, in an attempt to disrupt unjust prosecutions.
-Jake
“You’re using the system I’m not referring to (the system without proper jury trial), to attack the system I’m referring to (the system with proper jury trial). It appears you don’t know how much you had to gain from a proper trial.”
I did not WANT or SEEK a “proper trial”, or any trial. I did not want to be accused AT ALL. And keep in mind many of my accusers are libertarians who ADVOCATE (read: would implement) the same kind of jury system you speak of (and of which I too see as the best of what’s available). So, in that system, nothing would change, as I would continue to be prosecuted – and persecuted – by the very people running the new, “enlightened” system.
I favor a better jury system, sure. But even more than that I’d value not being prosecuted at all, as an innocent person. I think I have a right not to be prosecuted at all.
“Raw nature (fight or flight, unreason, weather patterns, etc…) doesn’t recognize rights, only intellect does.”
Nope, I disagree with that. I agree with Jefferson, who said that rights are endowed by our creator, and are self-evident, as well as inalienable.
“…And I agree with that. Certainly, there is no law in the USA, right now.”
Yep. As I’ve said many times, government is just institutionalized law-flouting.
I favor a market-based delivery system of the commodity of justice, but it can’t, I repeat can’t, violate any innocent person’s rights in the process. A jury has the right to acquit an innocent person in absentia, but that’s about as far as I’ll go. Detaining an innocent person is in itself a rights violation, and Rothbard even spoke of pre-trial detention as unlibertarian, in the manifesto. Convicting an innocent person is patently unacceptable.
You should read my essay (well, draft, as it isn’t finished yet) and you’ll see it if you go here:
http://libertycrusader.wordpress.com/political-consulting/garys-writings/essay-sorting-it-all-out/
Jake: below is a copy of a passage from the Libertarian Manifesto (For a New Liberty) written by Rothbard. I agree with this assessment. When I spoke of an innocent person having a right to not be *tried*, I may have been misunderstood. Anyone has a right to *discuss* someone’s guilt or innocence, and if they want to term it a “trial”, then no one has a right to stop them (although there may be damages resulting from placing him in jeopardy if it turns out the charges were premeditatively contrived).
The problem comes in if I’m actually innocent and your jury has found me “guilty” (maybe evidence is misinterpreted, a so-called eyewitness lies, a mistake in the chain of reasoning, etc).
In that case, I have a right to defend myself – with lethal force if necessary – if your marshals, pursuant to the erroneous jury’s verdict, come after me. What I *don’t* have is the obligation to martyr myself on a crucifix in the sake of an enlightened jury system.
From the Manifesto:
“In fact, the entire power to subpoena should be abolished, because the subpoena power compels attendance at a trial. Even the accused criminal or tortfeasor should not be forced to attend his own trial, since he has not yet been convicted. If he is indeed—according to the excellent and
Involuntary Servitude 87 libertarian principle of Anglo-Saxon law—innocent until proved guilty, then the courts have no right to compel the defendant to attend his trial.
For remember, the only exemption to the Thirteenth Amendment’s prohibition of involuntary servitude is “except as a punishment for crime whereof the party shall have been duly convicted”; an accused party has not yet been convicted. The most the court should be able to do, then, is to notify the defendant that he is going to be tried, and invite him or his lawyer to attend; otherwise, if they choose not to, the trial will proceed in absentia. Then, of course, the defendant will not enjoy the best presentation of his case.”