There has been a lot of recent commentary on the matter of jury nullification, which finally inspired me to sound off a week or so ago. The basis of the arguments I chose for the opposition were drawn from a series of posts on the topic by Kip, Esquire, who recently added further to the discussion with a podcast, The libertarian argument against jury nullification.
Should we oppose jury nullification on the grounds that it doesn’t really lead to victory: an acquittal? OK, it’s not perfect. But it might be more perfect if more people practiced it. I acknowledge that unless an acquittal can be won, nullifying doesn’t lead to a victory. The accused merely wins a new trial, where there probably won’t be someone willing to oppose the law. As a potential juror, one is presented with two options. If he chooses to abdicate his seat on the jury, he’s effectively given endorsement to another, who who has no qualms about the morality of the law. The other option is to nullify.
I can not, in good and clear conscience, vote to convict a man for something which I understand not to be a crime (e.g., an act of aggression, force, or fraud against person or property).
Kip also brought up the nullification of race-based crimes, etc., which I’ve characterized as straw-men, except insofar as they’re loosely related to the refusal to admit that jury nullification works both ways, which he cites as an argument against it.
Since it works both ways (e.g., the bad guys can do it, too), nullification is a bad idea. On the contrary, I understand that people acting on non-libertarian principles, i.e., without regard for morality, are going to nullify in some instances, regardless of what the libertarians do. That should not sway the libertarian one way or the other, as if the others would follow our examples! Its imperfection, also cuts both ways. If a truly innocent man finds his verdict nullified, he’ll likely find himself on trial again, where there probably won’t be another rabblerouser. If, on the other hand, there are lots of these bastards, there can be no presumption that the law will be any good, to begin with!
Kip argues that jury nullification rests on an unworkable standard, because we can’t define an unjust law, and that the burden is on the libertarian to develop a workable standard. In my initial entry on this topic, I said:
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.
The individual in Kip’s analysis is not the final arbiter of justice, since he’s unable to define for himself an unjust law. Now, if a man can’t define justice, then no group of men can collectively define justice. If a man can’t define justice, neither can the State.
Further, he argues that nullification embraces the un-libertarian concept of the concentration of unchecked power. Allow me to quote myself, again:
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.
He continues, that jurors intent on nullifying are no longer reviewing merely the facts of the case, but also the law; jurors are not supposed to second-guess the law. In this regard, individuals are always to submit to judges. But the ultimate judge of morality, and hence justice, is the individual; and thereby it is necessary, in-fact, for a juror to determine both the matters of fact and of law.
Kip argues that it’s wrong to nullify because in these cases, a juror is no longer interested in the facts of the case. If he’s intent on nullifying, he’s not interested in the facts of the case, because the facts of the case can only lead to the perpetration of an even greater crime. Really, a nullifier is not interested in the facts of the case only insofar as they lead to a guilty verdict under the law, which he knows to be immoral.
The system is set up in such a manner that when applied consistently and per Kip’s standards, the jury could only be stacked in favor of the State. A jury of men who have submit their rights to determine the law, must only consist of people who agree with the laws as written and implemented, and thus silences opposing viewpoints. If this is not “unchecked power” of the sort libertarians abhor, I’m not sure what is!
Kip provides an interesting history lesson when citing the change in American/Colonial jurisprudence. Now, a jury of one’s peers means a random sample of individuals from the county in which the charges initiated. A jury of one’s peers used to really be a jury of one’s peers: neighbors, business associates, parishoners, etc. (I never knew this!) At some point in history, the government decided that a jury of one’s peers was “biased” in favor of the accused. But a jury of those willing to apply the laws (without regard to their morality) is certainly a jury “biased” in favor of the state!
Participating in a mockery of justice does not mitigate the injustice about to be done in one’s name. Determining the facts to be such-and-such, while knowing fully that making this determination can lead to only one outcome (and an immoral one, at that) is to make oneself inextricably a part of such conclusion. I’m not claiming to be on a “higher moral plane” than the rest of the world, I’m simply putting my foot down and saying “I refuse to participate in a kangaroo court.” The other option is to abstain, and let the jury be packed with people who are willing to participate in a kangaroo court.
When telling the truth leads inevitably to the commission of an injustice, the only moral option is to lie.
In closing, I would like to suggest that there is no clear basis (in libertarian principles) for prosecuting a man on the basis of laws to which he never consented, but this is a discussion for another time and place. In the meantime, I am patiently waiting for an explanation of how the libertarian, can, with clear conscience, vote to incarcerate someone for committing an act which he knows, or believes to be inoffensive and non-injurious.
What is not clear, is whether jury nullification advances any libertarian ideals, although I do not think it detracts from them. This is debatable. However, I hope to have advanced the debate with regards to moral status.