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On Jury Nullification

March 12th, 2008

This is one of those topics about which I’ve been meaning to blog for quite some time, even though I hadn’t drafted anything. I was finally inspired by Radley Balko’s recent post about jury nullification. (Here is one of Balko’s older articles on jury nullification for some background reading.)

Some people make very unconvincing arguments against nullification: nullification = lawlessness. When the government is the lawless one, there is nothing wrong with disobeying its unjust laws. Lawlessness in this regard cannot be construed as a bad, in itself. And since the individual must be the ultimate arbiter of justice, any argument that rests on deference to the state in the sphere of justice is an argument against freedom.

Now, you’re beginning to realize where I stand on this issue. I like the idea. Of course, I object to the compulsory nature of being a juror. But that’s beside the point, really. You don’t have time to read all of my objections! Anyways, Balko’s recent post reminded of Kip, Esq., who’s staunch opposition to the concept seems like a good jumping-off point.

Kip has argued:

I have noted before, another reason for libertarians to advocate keeping jurors on a short leash: The simple fact that nullification can cut both ways.

I’m not sure, but this sounds like: “If we don’t partake in jury nullification, then neither will the state’s lackeys or other brands of criminals.” At the very least, the conclusion simply does not follow, nor do I find such a conclusion to be particularly likely. It’s kind of a prisoners’ dilemma: they’re going to do it, regardless of whether we libertarians abide by “their” rules. If anything, we should presume that the “bad guys” are going to nullify no matter what the libertarians do, in which case, libertarians should nullify every opportune chance they get, to “cancel out” the bad guys, as it were. I know, this is a rather unsophisticated argument, but I don’t think it’s any less sophisticated than “the bad guys do it, too!”

But moreover, simply because someone else might use the same process towards a malicious end is no reason to tell honorable, ethical men to refrain from using that same process towards just ends!

Previously, Kip, listed a number of reasons for which he opposes the principle of jury nullification.

I am on record as refusing to drink the libertarian Kool-Aid when it comes to jury nullification. It makes no sense to me, qua libertarian, to oppose the concentration of power by government in defiance of the rule of law, only to then support the concentration of power in defiance of the rule of law in yourself as a juror. Furthermore, in most if not all all cases a potential juror must lie, indeed perjure herself, to get on a jury if she presumes, a priori, to be entitled to commit nullification. That’s not my definition of libertarian ethics.

As a libertarian, I oppose the concentration of power (in any sphere) by government as a general principle. To allege that in an individual capacity, the “concentration of power in defiance of” a government’s fiat is a concentration of power in the same vein as the government’s concentration of power (i.e., the legitimized monopoly on the use of violence) is pure equivocation. The definition of “power” in the two clauses is not the same, and any inference drawn upon the assumption that the definitions are the same, is invalid. An individual juror has no “power” in the sense which is generally attributed to government. The juror cannot compel or coerce. The juror certainly has a sort of “power” in the sense of “an ability,” in this case, to prevent or at least to make it more difficult for the State to abuse its allegedly “consented” powers.

If the government compels a man to participate in an immoral and unjust sequence of events, it is by all means his moral obligation to avoid capitulation. If one has to lie to the government (which we agree consists of nothing but crooks, liars, and moral defectives) in order to avoid participating in an immoral fraud, it is not an immoral act. I can’t, for the life of me, understand why lying under such circumstances would compromise one’s libertarian ethics in the least.

If it be the State acting “in defiance of the rule of law,” then we can certainly presume that the law — either as written, interpreted, and/or enforced — is unjust. When the law is wrong, the last line of defense is the individual who refuses to aid in its enforcement. Asking the libertarian to obey the “rule of law,” for the sake of maintaining the rule of law, even while we admit that the law is perverted, is nothing short of slavish and unthinking obedience to the State!

If the State is wrong, if the laws it enacts and enforces are wrong, then obeying these laws, or participating in the system which fosters them or implements them, is also wrong, and defiance is the only right path!

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no third solution

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