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Should Libertarians Reject Jury Nullification?

September 24th, 2008

In the latest chapter of libertarian anti-nullification arguments, (it should be noted that Kip’s post is a hypothetical, I have no idea whether the “Palin Hacker” is pursuing a nullification defense, and so what follows here is probably a futile exercise in verbosity), we revisit among other things, the tired argument that, lying is always and everywhere wrong, and since one (probably) has to lie in order to get past voir dire, and subsequently, to nullify, then nullification is also wrong per se, which raises the question:

Do I have an obligation, morally, to convict someone for violating an unjust law? If so, on what principle of law or reason is this conclusion based? that I am obligated to injure someone, or to participate in his injury, who is guilty of no harm?

I would argue, unequivocally, that I have no such obligation.

As a moral proposition, it is perfectly self?evident that, unless juries have all the legal rights that have been claimed for them in the preceding chapters … they have no moral right to sit in the trial at all, and cannot do so without making themselves accomplices in any injustice that they may have reason to believe may result from their verdict. It is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government, when they have reason to suppose it will be used for purposes of injustice.
— Lysander Spooner, Trial by Jury

If every juror willing to stand up to unjust laws abstains from “lying”, and is ultimately removed from the pool, what follows is, that the voir dire process allows the court to essentially pack the jury with lackeys who are willing to enforce the law as interpreted by the state, for the sake of enforcing the law, conscience and consequences be damned.

The central question to Kip’s post is whether sympathy for the defendant is a sufficient condition for a nullification argument. This rhetoric is merely grasping at straws.

The defendant in such cases is portrayed as a sympathetic victim of an oppressive system

Now given that this framework — a just law with a sympathetic defendant — lacks a key prerequisite for traditional nullification (i.e., an unjust law), does that mean that nullification is inappropriate in such a circumstance?

Assuming for the sake of argument that the law in this case is objectively just, then of course nullification would be inappropriate. In any event, the other condition, the “oppressive system” is equally (if not more) important to the principle of nullification. Sympathy always helps, but it is hardly a sufficient condition. No principled libertarian — no principled man — could argue e.g., that one should not be held accountable for true crimes against person or property, except perhaps under the most exigent circumstances, like the starving beggar stealing a loaf of bread.

If so, then nullification is hypocritical. Why should a sympathetic defendant be allowed to argue nullification in one fact pattern (i.e., an unjust law) but not another (i.e., a just law)?

An unjust law is a necessary condition for any appeal to nullification.

Accordingly, the difference between the two fact patterns is not de minimis; rather it is the single most important question fact in any case. Furthermore, a jury nullification defense is usually (always?) blocked unless defendant is sui juris, and even then, could probably be considered contempt of court.

If not, then nullification is rudderless. The self-congratulatory insistence that libertarian nullifiers adhere to “higher” notions of justice is exposed as a consequentialist fraud. All laws — just or unjust — are reduced to mere suggestions, with any lay juror entitled to nullify any law, consistently or inconsistently, based solely on whim. We replace the maxim, “a government of laws, not men” with “a government of lotteries, not laws.”

On the subject of jury nullification, Kip has previously conceded that there is a higher power (be it natural law, morality, ethics, etc.) to which one ought appeal, when “those of us who believe in the supremacy of individual rights” are left without recourse against

An increasingly intrusive legislature, intertwined with an often unaccountable bureaucracy, enabled by appellate courts that have elevated ‘deference’ to the highest judicial virtue, leave without any other recourse.

It is imperative to remember that however much one wants to believe in a government of “laws, not of men,” that it is mere mortal men who craft those laws; men who are often, if not always, moral defectives , and who, through the apparatus of the state lawmaking bodies, are able to craft laws that suit their interests to the detriment of the rest of us. Laws which criminalize otherwise peaceful, private behaviors, which destroy families, ghettoize our cities, incentivize drug cartels, and expand empire.
These defectives rarely, if ever, face any consequences for the usurpations of individual rights.

Judges as servants of the law, are barely more tolerable than judges as servants of a Crown. It is essentially a distinction without a difference.

Responding to Kip’s previous post on jury nullification, I wrote, and still maintain that “The act of nullifying a verdict must be measured by the end towards which it is directed, as a tool, it is morally neutral. Nullification, in and of itself is no more (or less) moral than a rifle: although some may use it for ill will, in the hands of a revolutionary fighting a despot, it is great tool which should not be cast away.”

If this is “consequentialist fraud,” then color me consequentialist.

The only rational and moral resolution to the paradox is to reject from the outset both the general concept of nullification and the specific hubris-laden belief that nullification is proper when, and only when, libertarians do it.

Reject these concepts? to replace them with what, pray tell? The absurd notion that the law is always to be upheld, no matter the implications?

Let’s rephrase that thesis, as I commented there: The only rational and moral resolution to the paradox is to reject from the outset both the general concept of a right to bear arms in self-defense, and the specific hubris-laden belief that bearing arms is proper when, and only when, libertarians do it (i.e., the non-aggression principle remains inviolate).

As libertarians we reject neither of the above concepts, nor should we.

We accept a general right to bear arms, but temper that with the non-aggression principle. One’s right to bear arms, deriving from the individual’s right to his own life, does not entitle him to pop a cap in the ass of anyone who looks askance, or shoot anyone with whom he disagrees.

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Nobody here is claiming that jury nullification is a magic wand. It’s not. It’s not going to reverse decades of bad laws, overnight. And it can, of course, be used the wrong way.

But so can the law itself be perverted, and used for ill.

As I’ve argued previously, if the jury is packed with bad people, there’s not really any reason to suspect that the law won’t be bent in their opinion, in the first place. If everyone, or even a sufficient majority, of the population are e.g., racists, then the laws won’t be just to begin with. Arguing that bad people can use nullification to adversely impact the rulings of just laws is a dead letter.

If you are threatened with fines and forced to serve on a jury, and you can think for yourself, your duty to your fellow man is to avoid at all costs, participating in a system which means to injure him. 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,

Jury nullification is the only moral option.

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Further reading:

  1. On Jury Nullification
  2. Jury Nullification and blocked Defenses
  3. If you can think for yourself, you can’t serve on a jury

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Comments

2 Comments

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  • KipEsquire says on: September 24, 2008 at 12:37 pm

     

    This may change, but there are hints in the media that the grand jury has refused to indict the presumptive hacker.

    I have much less difficulty — probably none at all — with the notion of “nullification” (which might not be the right word) at the grand jury level, because it better reflects the distinction between an unjust law and an unjust prosecution.

    In any case, if you want to say that nullification is the “right” thing to do, then knock yourself out, though I obviously disagree.

    I just find it utterly preposterous to suggest that it’s the “libertarian” thing to do.

  • Clay S. Conrad says on: September 24, 2008 at 3:39 pm

     

    You wrote that “An unjust law is a necessary condition for any appeal to nullification. ” I’d disagree.

    Even the best laws can be misapplied, or unjustly applied. One can consider a euthanasia case being tried as murder: the argument would not be that murder should not be illegal, but that under the facts of the case, the law was being unjustly applied.

    The legislature writes law as general rules. Prosecutors have the prerogative (in fact, the ethical obligation) to refuse to go forward on a case if they believe that a conviction, under the facts, would be unjust. As a general rule will inevitably cover many factual situations that were never intended by the drafters, that is as it should be.

    I simply note that juries have the same prerogative, which acts as a check on the prosecutor’s exercise of discretion. I’d note that in the modern world, we all probably commit at least a few felonies every year, from improperly disposing of items of common household waste, that may be toxic, to killing small animals or even plants that may be endangered, etc.

    Prosecutors and police decline to prosecute many such cases. However, if they selectively choose to impose the full extent of the law on say, some guy named Kip, because they dislike his name, a jury could well decide that the case simply wasn’t fair because he was being singled out, and acquit him. That would be in spite of his technical guilt. This protects unpopular members of society, and protects the integrity of the law.

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