Jury Nullification

Rounding out this debate year for Lincoln-Douglas high school debate, we’ve got “Resolved: In the United States, the principle of jury nullification is a just check on government.”

I am concerned that the average argumentation on this topic is going to be “government is fascist” compared to “people are criminals.”  I’m hoping that (those) won’t be the case(s), because there’s so much more that can be done with this topic, especially for the people who are willing to risk sounding persuasive in a debate round instead of just tossing out arguments like so many jigsaw puzzle pieces.

A typical affirmative position should take a forked approach to this topic, generally defending liberty and focusing on the jury’s determination of guilt-or-not per the American Heritage Dictionary’s 1a definition of “guilty”: Responsible for a reprehensible act.  The trick that a good affirmative will want to pull off will be framing this with enough flourish to make the government sound good while at the same time asserting the justness of checking government powers.  There are two elements that make this case and either of them should be capable of picking up an affirmative ballot.

First, in any given juried case, there may be a difference between violation of a law [gesture to the right] and being responsible for a reprehensible act [gesture to the left].  Consider, for example, the lack of free speech prior to the founding of the United States.  When a minister dared to preach as a Quaker in violation of theocratic law, or when a publisher printed libelous truths against the crown in New York, the juries refused to find them guilty: their acts, while in violation of the law, were not reprehensible.  And from the founding of our nation through our progress to today, we are continuously trying to eliminate the gaps where somebody can violate a law without being a reprehensible act.  It’s a long process and it’s not perfect because we’re not perfect — and our government is made up of us, by us and for us, and our laws do sometimes reflect that.  Our nation, conceived in liberty, managed to maintain human slavery as an institution for almost a hundred years.  Women didn’t get to vote until just last century.  We even tried to outlaw alcohol consumption.  But our greatness as a people and as a nation is our ability to change — slavery is no more, our democracy is more complete, and most people are allowed the liberty to enjoy libations.  We are continuously developing our more-perfect union, and eliminating the gaps between violating laws [gesture right again] and being responsible for reprehensible acts [gesture left again].  But our human imperfections ensure that we absolutely must protect our ability to make this distinction, and this is the critical check that jury nullification places on our law of the land.

Secondly, and more intrinsically, jury nullification protects the freedom of conscience of the jurors.  There is only the finest of lines between a prosecutor making a criminal case against a defendant that demonstrates the violation of the law beyond a reasonable doubt — even setting aside our standing definition of guilty — and a juror having a reasonable doubt that nags on their conscience and prevents them from returning a verdict of guilt.  As long as we accept the principle of jury nullification, the precise deliberations and thought processes of the jurors — their freedom of conscience — are protected as they should be.  Article 18 of the Universal Declaration of Human Rights says so, and as far as we Americans are concerned, even that great document was a bit slow in getting to our freedom of speech/press/religion/assembly party.  To negate the principle of jury nullification is to say that there can be cases where a juror would have to be actively corrupt to not return a verdict of guilt when the truth of the matter is that we, the observers, aren’t seeing the full case as it is presented to the jury and are speculating that — while the freedom of the defendant hangs in the balance — we wouldn’t have doubts creeping into our minds.  This isn’t just proactive intellectual freedom we’re protecting here; this is the existential right to have experienced things in your lifetime that alter the way you shape your opinions and beliefs from the way the prosecution or defense, the victim or defendant, shapes theirs.  And in as much as a juror’s freedom of conscience can potentially help sway them towards a verdict of guilt, we should be unsurprised when a juror is instead swayed away from a verdict of guilt — and the principle of jury nullification protects the jurors from persecution by the government for the verdict that they return, ensuring that their freedom of conscience is maintained.

Overall, a typical affirmation of the resolution can say that we’re protecting the liberties of people who have violated laws [gesture right] without necessarily incurring guilt [gesture left and hold] (that is, being responsible for a reprehensible act) [shift left hand to center for point] but more importantly protect the liberties, the most foundational of which is the freedom of conscience, of the citizen-jurors.

Of course, this should be expanded further on how wonderful and Very American liberty and the freedom to think things is, but the critical framing of this case is that our human institutions are always trying to get better — think positive! — and as such need to be open to criticism and that the principle of jury nullification protects the jurors regardless of what decision they return.

The negative can run a much more core-logic line of argumentation against that.  The negative might value justice — within a civilized society, giving each person their due — and our pursuit of that as a nation is embedded in our belief in the rule of law.  This is crucial:  if the law is not applied equitably, then justice is going to be denied for some people, whether they are guilty according to the affirmative’s definition of guilty or not.  That’s a bad thing, as Martin Luther King Jr pointed out in 1963 asserting that “Injustice anywhere is a threat to justice everywhere.”  But what’s more important, that the affirmative didn’t pick up on, is that regardless of the principle of jury nullification, everybody in our government of, by and for the people is subject to the rule of law.  Rule of law is the real check on people claiming to act for our government.  Some government employees and public servants may do dodgy things to change laws so that they appear to be above the law — particularly with warrantless wiretapping and justification of torturing enemies of our nation — but they are, in fact, still subject to the rule of law; just look at former Illinois governor Rod Blagojevich, members of congress indicted on charges of corruption, et cetera.  We’ll fully impact this in a moment.

But the starting point for us is that juries often don’t represent the demographics of the society that is supposed to be pursuing justice.  What this means, when combined with the affirmative’s insistence on freedom of conscience, is that this failure to demographically accurately represent society necessarily skews us away from pursuit of justice in our society regardless of whether the jury finds guilt or innocence, appropriately or otherwise.  (I guess there’s a “Miller ’09” — not me — card talking about how a community with a 15% black population only had 6% black jurors out there that would back this up nicely.)  This failure — with a tendency to under-represent minority perspectives — skews our ability to have a consistent rule of law by having juries that are inconsistent with their communities and thus undermines our societal (that is, as a collective whole) pursuit of justice.

There’s probably no better example of this than the 1992 acquittal by a predominantly white jury of four Los Angeles police officers who were videotaped savagely beating Rodney King, a black man.  Rioting ensued.  After the riots, the four officers were tried for federal civil rights violations on the same event and two of them were convicted.  Allowing for jury nullification supports inconsistent rule of law which precludes justice and offends peoples’ view of our society — leading to rioting because we’ve already shown that rule of law isn’t that important to us.

But the real problem with jury nullification that the LAPD highlights for us is that rule of law is what checks our government and jury nullification takes away that check.  The actions of the officers should have been checked by their adherence to the law.  They were not checked, as the federal convictions, above and beyond the videotaped evidence, show — and the (predominantly white) jury that acquitted them despite the weight of the evidence against them, putting this into the realm of jury nullification, demonstrates that the government became unchecked from the rule of law by jury nullification.

Put another way:  Because we are supposed to have rule of law to check government and the whole of society, jury nullification is a neutral device which can actually unjustly uncheck the government in some circumstances.

Note that the affirmative should attack the demographic argument in two ways:  there is no such thing as demography in matters of law where people are supposed to be equal, but even if there were, claims of demography undermine the true freedom of conscience of the individual; our president and the chairman of the Republican National Committee may be demographically black, but they would be thinking their own — very separate — thoughts if they were serving on a jury with, oh say, the rapper T-Pain.  The negative should concede this, but observe that when pursuing social policy we do have a responsibility to do the best that we can and the numbers suggest that we’re not doing this at all — especially since the state trial of the LAPD officers had no black jurors for a crime that was committed in Los Angeles county.  Thus, lacking a way to ensure social representation and freedom of conscience at the same time, we approximate on the social representation as best we can rather that give up on the pursuit of our ideals.

The affirmative may also note that the MLK quote was taken from a letter that he wrote while he was unjustly incarcerated.  This is true.  But this is totally baiting from the negative; it does not trump the rule of law.  The negative must claim that Dr. King’s incarceration supports the rule of law, the consistent law that when equitably applied results in a healthy pursuit of justice which is not what was being protested or lead to the incarceration.  If people are afraid to go to jail when challenging unjust laws — or, conversely, afraid to send people to jail for fear of the wide-ranging public criticism it will raise against unjust laws, then the unjust laws will not have action taken against them.  The point is to raise the concern against unjust laws earlier and louder so that we can better pursue justice before a massively publicized bad verdict results in mass rioting, not shuffle it under a circumstantial application of jury nullification and hope we get around to fixing it later.  If the affirmative wants to talk about the progress of society, great:  progress comes from bringing conflict to our civil discourse, not allowing people fearful of social repercussions to suppress it from the public conscience until our society is crushed under the weight of things left unsaid.  Our government is of, by and for the people, as are its laws, and it is our duty as citizens to actively challenge the legislation of unjust laws, not just claim that nobody can be guilty of breaking them if we happen to be selected for a jury in a trial involving them.

The affirmative can obviously call out that in the case of the LAPD, the government as represented by the prosecution as checked by jury nullification which was really just the jury expressing reasonable doubt about the guilt of the officers, but the negative point that the government as represented by the LAPD officers was spared — temporarily, anyway — from rule of law is going to stand and the resolution calls for a determination on the check on government, not just “the prosecution.”

Honestly, I don’t see a good way out of LA for the affirmative.  Instead, I’d be looking for an atypical affirmative case that may surprise the negative — especially if the typical fascists versus criminals debate is what’s being set up.

The atypical affirmative case starts with the question of what about the government is actually being checked by the principle of jury nullification?  The defendant’s life has already been turned upside down by the court proceedings which are now at a close; almost everything that can happen has happened… so what might the government be able to do that jury nullification would check?  Clemency.

If a jury, given the overwhelming weight of evidence against a defendant returns a guilty verdict as expected, a judge can set that verdict aside, or be extremely lenient with sentencing or show any manner of mercy.  Additionally, at the state or federal level, outside of the judicial branch of government, a governor or president can offer clemency ranging from reducing an imposed sentence to handing down an outright pardon to the person the jury found guilty of violating the law.  This is a legal possibility; it is codified into and part of our rule of law.

What it shows is that, while our justice system is adept at pursuing justice, we freely admit that we do not and will not know if or when we get actual justice.  In some cases, we overcompensate in our vendetta against those who have done us wrong; in other cases, no amount of earthly punishment would deliver justice… to Tim McVeigh, who bombed the Alfred P. Murrah federal building in Oklahoma City in 1995, or to John Allen Muhammed, the Beltway Sniper from 2002.  What we really need more than continually trying to achieve justice is to be able to move on as individuals, as communities, as a nation.  We need to heal and we need to grow.  Sometimes this means that we execute dangerous criminals to bring closure, sometimes we lock them up and throw away the key (as with Sheik Omar Abdel Rahman for his involvement in the 1993 World Trade Center bombing), but sometimes we should just admit that we, as a society, were not harmed by a violation of a law and that the best way to move on is to let it go.

Jacob Appel’s muses on our over-zealous pursuit of justice and lack of mercy:

One of the glaring — yet too often overlooked — failings of contemporary America is that we have become a nation obsessed with justice and retribution. We claim to be The Land of the Free, yet we have lost sight of what it means to be imprisoned: denied liberty and access to one’s family, subjected to isolation and violence and unspeakable boredom. We have come to believe, in the most pernicious way, that people should get what they deserve. What a sea change it might be in our public discourse and our civic life if we focused instead upon mercy and forgiveness. A merciful and forgiving culture might find itself with less anger, less social disruption, and even less crime.

He goes on to discuss the cost of incarceration, weighed against the cost of rehabilitation and prevention — getting us to the point of less crime.  But what I want to call attention to — we’ll be coming right back to it after I affirm the resolution specifically — is that we could have less anger and less social disruption.

To affirm the resolution specifically, jury nullification is a check on the clemency power of the government because if a jury sees fit to offer mercy and forgiveness to a defendant who clearly violated the law, then neither judge nor governor nor president can reverse that, especially not to re-offer clemency (that’s the check); the defendant is protected from being prosecuted for that particular crime by our assurance against double-jeopardy.  Furthermore, jury nullification is a just and good check of the government’s capacity for clemency because the jury of a dozen or so citizens better represents the actual fabric of our society than the unilateral actions of a member of the government, no matter how rightly noble and high-minded.  The crucial differentiator here is that while our government can try to lead our society forward, it is the people — like the people serving on the jury, their friends, their families — that have to actually move forward.  By granting the prime clemency power to a jury via the principle of jury nullification, we ensure that our society can move forward through the empowered action of its citizens instead of waiting on our government for direction.

The truth of the matter, though, is that our political leaders are public servants and they tend to follow public opinion as much as lead it.  When our society is unforgiving and incapable of moving on, our national policy decisions — and 24-hour news networks in turn — reflect that.  From wars on people with box-cutters and improvised explosives to wars on drugs, our disproportionate responses to bring down mighty justice perceived threats from minor harms is distracting us from the task of actually advancing our civilization.  Should we be surprised?  People are afraid of homosexuals getting married when heterosexuals can’t manage to stay married.  People are outraged by almost 40 years of legally protected abortion and then outraged by being asked to subsidize breakfasts at public schools for impoverished children.  People are indignant about lackluster public services and even more indignant when asked to pay taxes adequate to fund them.

Our nation is supposed to be better than this.  But to do and be that, we have to let go of our feelings of being wronged.  Instead of looking for justice, we have to look for right.  And what is right is not necessarily trying to set things in balance, trying to give everybody their due, but rather figuring out how we as people can move on past being wronged onto something greater.  As a society, we must protect and re-affirm our right to be able to demonstrate forgiveness to those who violate our laws without the unilateral intervention of our leaders.  Only when we can envision and work towards a greater good, a more-right than just justice, will our nation become resilient and able to withstand the turmoil of distractions that prevent us from honestly pursuing energy independence, that makes nuclear disarmament difficult, that lets environmental destruction be standard business procedure, that puts us in debt to China for sending our young people to Iraq and Afghanistan to kill or be killed.

The kind of resilience that it’s going to take to focus on these big issues is the kind of resilience that can only be cultured into our society when the people, the citizens, the folks summoned to jury duty, know that it’s okay for them to tell the guilty “Yes, society was wronged by your actions — but not so much that we have to care because we have bigger issues that we’re focusing on.  You’re forgiven; we’re moving on.”  The president can do it, governors can do it, judges can do it… but juries can do it best as representatives of their community and as the active fabric of our better society.

So in order to cultivate the mercy that will bring us national resilience which will allow us to be our best selves, I absolutely affirm that in the United States, the principle of jury nullification is a just check on government.

Bonus side note: One of the things that I fully expect to hear from kids who have not done research into this topic while cross-examining their opponents will be “But can’t a judge overturn a jury’s verdict?”  The correct answer is “Only if the jury convicts, which, given our topic of jury nullification, they probably haven’t.”  The reasoning for this is as follows:

Because of the guaranteed right against double jeopardy in United States criminal cases, a judge is not allowed to enter a JNOV of “guilty” following a jury acquittal. However, if the judge grants a motion to set aside judgment after the jury convicts, this may be reversed on appeal by the prosecution, as the verdict was different previously.

The full article is on Wikipedia; please note that the “However” is disputed for accuracy — the claim is that the prosecution can only appeal a judge’s dismissal, not an acquittal as any acquittal triggers the double jeopardy protection.

March 12 Addendum: Evidently some people on the affirmative are thinking that this is a theory-only question; that merely the principle of jury nullification is what is being debated.  This is wrong.  Yes, you can debate the merits of just the principle of jury nullification, but when it comes to being a check on government you have to debate the actions that follow from the principle of jury nullification; sticking to a purely theoretical framework fails to prove that it checks government and should lose the round on topicality.  By way of comparison, we have — in principle — the right to redress grievances against the government.  But the principle of this right does not actually check the government.  What checks the government is people with grievances actually — that is, “in practice” — suing the government and holding the government accountable to the rule of law.  Now if you’re wondering “Why does the resolution call out the principle of jury nullification?” that would be because jury nullification is just a principle derived from freedom of conscience which is all well and good, but doesn’t actually affirm the resolution of it being a just check on government.  And it’s not going to affirm that it’s a just check on government because of the ridiculously Kafka-esque array of powers the government has acquired over the past few years from warrant-less wiretaps to indefinite detention to extraordinary rendition to “enhanced interrogation techniques” that most of the world would call torture, all of which are unchecked by the conventional powers of the jury, despite the continually standing principle of the empowered jury.  We need rule of law to bring our society back up to what it’s supposed to be, to get back to being that shining city on the hill, and everything that impedes the proper rule of law to which all people should be accountable, whether it’s juries nullifying laws or judges throwing out cases to protect state secrets on claims of national security, mitigates our ability to let law rule and to get to actual justice.

March 16th Addendum: Thoreau actually had a lot to say in “Civil Disobedience” which can be useful here.  The most extensive passage would likely be

Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men, generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to put out its faults, and do better than it would have them? Why does it always crucify Christ and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?

To put it another way, given an unjust law then even the slightest active opposition to it — most directly and practically in the form of jury nullification — is a just action against the government that made the law.  To claim otherwise is the rhetorical equivalent of hanging George Washington and Benjamin Franklin for treason, which is an amusing piece of framing in which to set the negative position.  But the real issue comes down to the consent of the governed — that thing from which a government derives its just powers — and if the jury is actively withdrawing their consent from a law, then they are going to nullify the law and that’s the way it’s supposed to be:  to not nullify the law would be allowing a law to exist without the consent of the governed which makes the law inherently unjust and mitigates the legitimacy of the government.  If you want to cite Thoreau on this, his precise words were

The authority of government, even such as I am willing to submit to—for I will cheerfully obey those who know and can do better than I, and in many things even those who neither know nor can do so well—is still an impure one: to be strictly just, it must have the sanction and consent of the governed.

So there’s a couple of tidbits that the affirmative can use to talk about how, if the validity of jury nullification is in question, then it should be viewed as civil disobedience against laws which are inherently unjust because they don’t have the consent of the governed and this is a good thing because consent of the governed is what the government needs to be just and avoid having juries nullifying laws all over the place.

The problem with this is that Thoreau wouldn’t have necessarily been in favor of jury nullification.  If a law is unjust, then any citizen should be willing to risk punishment for challenging it as King and Ghandi did in their practice of civil disobedience.  Put bluntly, “Under a government which imprisons unjustly, the true place for a just man is also a prison.”  Jury nullification doesn’t enter into it and, as I mentioned above, can blunt the progress of a movement that needs martyrs.  But as to Thoreau, he almost certainly would’ve rather had people refusing to serve the unjust government by acting as members of a jury rather than dithering around with jury nullification.  So I really can’t suggest that the affirmative rest to heavily on Thoreau.  After all, Thoreau is also the guy who said “He serves the State best who opposes the State most,” and that’s not exactly the picture that serving on a jury really draws.

March 21st Continuation: So because it may well matter, if the affirmative ever sets up a false choice between jury nullification and accepting unjust laws while pursuing a value of Justice, the first question the negative should ask in cross-examination is “How opposed to unjust laws should we, as citizens, be?” It’s a setup, of course — the affirmative will probably talk about our duty to nullify unjust laws. If you’re lucky, they’ll also toss in a bit of hyperbolizing about how great justice is (for Great Justice!), to the point of it being a crucial duty of every citizen to love justice. If they don’t go that far, then you’ll have to show that you’re more dedicated to justice than they are, but more on that in a moment. But we’re trying to set up a call on civil disobedience coming from refusing to serve on a jury, which was the real point for the negative behind the Thoreau info, and combos nicely with the negative ground detailed above. To re-summarize:

  1. Justice is an abstract value that we can only pursue as best as mere mortals can. (But we have to pursue it with all our might, if the affirmative didn’t hype it in cross-examination.)
  2. But at least Rule of Law at least consistently pursues Justice; accepting arbitrary variances in jury decisions per the principle of jury nullification ensures that our pursuit of Justice is mitigated.
  3. Furthermore, jury nullification is a check on Rule of Law, not on Government, because in the United States even Government is subject to Rule of Law.
  4. When the Rule of Law is itself corrupted by unjust laws, Civil Disobedience may be used to protest those laws and policies.
  5. In the case of a jury, Civil Disobedience could be manifested by refusal to serve on the jury and/or refusal to return a verdict at all. Yes, they do risk being found in contempt of the court, but getting back to the direct Thoreau quotations: “Under a government which imprisons unjustly, the true place for a just man is also a prison.”
  6. Oh, and, by the way, because the jury is now risking being found in contempt of court, chances are that they’ve had to think rather longer and harder about the course of action they’re pursuing and their valuation of Justice. The difference is a question of whether the jurors are thinking “This isn’t fair, we should acquit,” or “This is wrong, we should oppose.” The first one happens because we’re not perfect, but it’s the second one that the affirmative was trying to grandstand with.

Why does this matter? Because if the affirmative is allowed to keep their “juries either have to nullify or accept injustice” nonsense, then there’s an automatic mitigation on the sense of Justice for the members of the jury regardless of any other alternative to pursue justice that the negative might present. The jury must stay enfranchised; the jurors must retain a course of action that promotes justice. Lacking that, and all other things in the system being equal, given an affirmative claim of unjust laws absolutely existing, the principle of jury nullification provides another avenue and thus better access to the value of (Great!) Justice. But as long as the jury, as an entity, has a way to check the government sans nullification, the affirmative can claim scant advantage from having an active jury.

March 28th New Response: While Nietzsche probably doesn’t have the best reputation in the world of philosophy, it is worth noting that he was opposed to activist judges that some people might claim can provide the same benefits as jury nullification, except from a more educated standpoint.  Nietzsche refutes this, pointing out that the mindset of the judge is almost certain to favor the law over mercy because the judge conflates the law with rightness, from which their power is derived.  He uses the example of how the pharisees had Jesus crucified, but the core of the quotation from Thus Spoke Zarathrustra goes like this:

With whom lieth the greatest danger to the whole human future? Is it not with the good and just? As those who say and feel in their hearts: “We already know what is good and just, we possess it also; woe to those who still seek thereafter!”… The good and just themselves were not free to understand [him]; their spirit was imprisoned in their good conscience. The stupidity of the good is unfathomably wise… The good must crucify him who deviseth his own virtue! That is the truth!

Of course, that all works far better if you’re not advocating for justice on the affirmative; you really have to be trumping justice as a value before you can say that letting the good and just decide who to crucify is not the best of ideas.  Failure to do so should get you smacked out of the round by a Rule of Law response, assuming your opponent is paying any attention at all.  But if you’re already using Nietzsche and want to make justice sound bad, try this one — also from Zarathrustra — on for size:

Ah! how ineptly cometh the word “virtue” out of their mouth! And when they say: “I am just,” it always soundeth like: “I am just—revenged!” With their virtues they want to scratch out the eyes of their enemies; and they elevate themselves only that they may lower others.

I’m not sure whether or not there’s a rule against using something that incendiary in a round or not; you may want to ask your coach before firing it off in the 1AR.  Also worth noting would be that Nietzsche was rabidly opposed to the conceptualization of the social contract, so don’t try to use him on the attack if you’re running a social contract sort of case.