Man arrested for promoting jury nullification wins federal case
reason.com
reason.com
Good-ol'-boy-ism is a good thing when it let's the sheriff of Mayberry teach a kid a lesson without making him a felon and ruining his future.
Good-ol'-boyism is a horrible thing when it let's the sheriff of Mayberry teach a kid a lesson, making him a felon and ruining his future.
I have personally benefited from the former. I don't know how to reconcile the latter when the only difference was the kid's last name, or skin color, or religion. Every good thing can be abused. Sometimes the scale of abuse calls for the abolition of the "good thing". Sometimes it is better to tolerate some abuse because of the scale of good that comes from the good thing.
For me, this train of thought always breaks down to reasoning that good-ol'-boy-ism is good when the ol'-boys are good and bad when the ol'-boys are bad. But that's obviously broken when 'good' or 'bad' is left to the decision of the ol'-boys. Historically, we just have constant war to decide who gets to be the ol'-boys this week.
Part of the problem is that there's so much policing of "social issues" that aren't what we traditionally see as crimes. Still even for people that are arguably pretty bad eg. street thugs, repeat DUI offenders, ect., I'm not sure of the wisdom of this policy... and that's not even considering small time first offenders (also ignoring our most serious crimes).
I concur, I think ruining people's futures can be a horrible thing. Depending on the crime, I do think that what we see in some of Europe around "Right to be forgotten" for crimes is a good path forward.
I do not want to advocate for laws that firmly set someone onto a path of crime because of some youthful indiscretions, or, that forever treats a person as a pariah because of something that happened 30 years ago.
However, the first amendment is not to be tossed aside when inconvenient.
The act itself is not preventable without invading the sanctity of the jury room.
The scenario you present shows no relation to the concept of jury nullification presented here; unjust laws versus yours; untouchable persons. One is a protest of society, the other a protection of a group.
I'd prefer that situation over it solely existing in the hands of a few police/judges/etc. with incredible power in deciding the future of the lives of those without power.
Otherwise, tons of poor people and minorities are arrested on drug charges, while suburban and rich people joke about doing coke and taking illegal prescription drugs.
https://wsvn.com/news/local/broward/foreperson-3-jurors-unwi...
You can find more examples. Jury nullification happens across the spectrum.
The root issue is that human beings are racist or otherwise prejudiced and that’s causing way more problems in many more areas
And prejudice is natural human behavior. Anyone can become prejudiced if they grow up in the right environment
But if all your friends are from all walks of life, you will naturally not be prejudiced. So all we need to do is make sure that we have even the right outreach programs so forces are diverse. When people in places of power are going to cookouts and all theirs buddies are all sorts of different people, all these stupid problems will literally disappear in a generation
I'd be careful jumping to the conclusion you did based on this premise because there are a lot of subtleties here. More generally this is known as the contact hypothesis (and related to the diversity exposure hypothesis) and there isn't that much evidence to justify the idea that exposure to multiple walks of life reduces prejudice and on the contrary there is evidence that the opposite is true.
While there is substantial evidence that people who do have friends from all walks of life are less prejudiced as you point out, that's mostly due to self-selection. People less prejudiced have less issue with befriending people from all walks of life, so we should not be surprised that they do so. However, concluding that all people need is to be exposed to diverse groups of people will reduce prejudice is unsupported by research and in fact to the extent that research exists on this, it actually points to the opposite conclusion. For example in situations where people are required to work or interact among different cultures, studies show unfortunately that those people have more negative attitudes towards that community than the general population. This phenomenon is known as negative intergroup contact:
https://journals.sagepub.com/doi/abs/10.1177/136843021876156...
I’m not really expecting to fix older people. I’m an old dog now relatively and I don’t learn new tricks as well
I’m talking about people growing up together
for me, the quote from Supreme Court justice Oliver Wendell Holmes is important: 'The jury has the power to bring a verdict in the teeth of both the law and the facts.'
https://www.jurorsrule.com/quotations-and-comments-on-fully-...
"This is a court of law, young man, not a court of justice."
Of course there are lots of other systemic issues with the US 'justice' system, but I also think the foundation is fundamentally flawed.
Take asset forfeiture for example, there is no law that permits it explicitly but there are laws about property rights,due process and privacy. By precedent and in ignorance of what common sense tells a reasonable person "this is unfair" they steal property from people without due process.
The legislature can't even stop companies from being treated as persons which any sane person will tell you is unreasonable or illogical.
It is all merely theatrics to veil implementations of hidden agendas and ulterior motives.
Yeah, they are.
https://www.law.cornell.edu/uscode/text/28/453
> The legislature can't even stop companies from being treated as persons which any sane person will tell you is unreasonable or illogical.
I've never gotten why people are so opposed to the idea of corporations being treated as unnatural persons for certain purposes.
Companies are owned and operated by people with rights, so some of those rights transfer to the company. But, the owners agree to have some of their rights qualified when acting through a corporation in exchange for enjoying limited liability.
For instance, imagine you own a house under your own name. The government can't build a stadium on top of it without just compensation. Why should it be any different if you happened to have purchased that house through a corporation?
Corporations were a relatively recent invention in the context of the common law and treating them as qualified unnatural persons allowed them to integrate into the legal system without creating an entire parallel system. As a developer, I find it a pretty cute retrofit to the model.
For the second, it is not a question of opposition. It is not reasonable or logical no matter the mental gymnasics and legal bullshit you legalists try to apply to it (you are so deep in legality you have forgotten reason). There is no such thing as an unnatural person. A corporation is an entity with specific defintions. The reason behind this mental gymnastics is precisely what you noted: rights. But if you follow logic and reason companies have absolutley no rights whatsoever, only obligations and privileges that allow them to participate in commerce. However, stipulatig that somehow they are partially persons because people operate them and they derive those people's rights allows them to argue against their obligations because of inerited rights. This is what I meant by a veil of theatrics to acheive your underlying goal.
Under a government of the people,for the people and by the people, the people's understand of what could reasonably be considered a person trumps every other argument. A reasonable person would not consider walmart or cpac a person or to have rights of a person because people operate it. Companies were around long before the USA was a country and this stipulation was never made before because it is hilariously illogical.
If you want corporations to have specific privileges, legislate that as such, meaning unlike rights they are not irrevocable by the government and contingent on the fulfillment of their obligations.
Take a billboard paid for by a company for example, the company has no rights to free speech. However the individuals that run it can run the billboard as individuals on behalf of the company, accepting responsibility as individuals under law (typically the CEO would).
> Why should it be any different if you happened to have purchased that house through a corporation?
It is different because you chose to make it different and relinquished any rights of ownership as an individual. You now should pay corporate taxes and nullification of your incorporation means the government gets your house. If you don't like that, buy it as a person. Thank you for bringing this up, do you know about the home ownership, housing price and homeless catastrophe that is unflolding? This is the cause. Corporations are buying houses left and right and taking advantage of home owner rights to do so. A city should be able to ban corporate owned housing but since they are persons that is impossible unless done at the federal level and even then it must pass a supreme court challenge. As a result corporations enjoy personhood rights more than most americans.
When you forgot reason, you tolerated corruption at the foundation of the whole system.
When people talk about corporate personhood, they're almost certainly talking about Citizens United v. FEC which allows corporations to make unlimited donations to politicians because it's 'free speech' - a decision that opens the door to unchecked bribery.
They oppose this because they don't want their politicians to accept bribes.
A corporation can't be homeless, so I'm fine with them being treated differently when the bulldozer comes to knock their house down.
Justice is much more subjective and is the domain of prosecutors and the executive branch.
The checks and balances that prevent the judicial system from abandoning reason and justice have failed and as a result it is very partial and political with interpretations of the law according to opinion superseding common and reasonable understanding of justice. A person may have subjective views on justice, sure but what I am saying is even that is not being applied. A judge will not disregard an attempt to interpret law unjustly (e.g.:asset forfeiture) or attempt to give a reason as to why it is unjust, simply that the law is valid and implied injustice is correct (that is to say, the judge will not consider an interpretation law because that would imply the legislature had unjust intent according to subjective understanding). Reason is supposed to be a corner stone of the system but where public liars and corrupt people are made judges the result is what you have now.
I am sure there are many in the profession that genuinely pursue justice and apply reason over whatever bullshit they can convince each other but their minority voice is drowned out it seems.
Judges very often do reject charges and procedures brought to them by the enforcement authorities. This separation of power is evident if you ever sit in on proceedings (many courts allow and encourage the public to sit and watch).
Enforcement authority is executive branch and answerable to the elected officials. If you don't like asset forfeiture - ask the mayor why he allows it. You may discover that your fellow residents don't agree with you.
Judicial review panels are what judges endure in their tenure where panels of judges review how frequently their rulings are overturned in appeal. The rationale of their rulings are disputed and their tenure as a judge can be removed if they're found to intentionally skirt the law by their peers.
This is how the system works. Do you have specific suggestions to make it better, or are you just advocating we burn everything down?
So, from my very limited understanding, the point is kinda like you have to pass the legal steps before you have a chance at getting justice. Rules of evidence, Miranda warnings, whatever.
I think it's sorta like you have to pass the compiler before you get a chance at a working program.
Now, I'm going to strain this analogy, what do you do when there's a bug in the compiler? Me personally I patch the fucking compiler, and then submit a PR. Maybe that PR gets accepted, maybe not. But the problem I have right now is fixed.
I would probably not be a good juror.
So, while you can work around the compiler issue, you cannot really remedy the legal system for your case, which could be deleterious.
I'd say getting your PR accepted is like passing the law. Locally hacking up the compiler to get this one stupid executable to work is like jury nullification.
Argument by analogy sucks, but hopefully this gets the spirit of what I'm trying to say across. I'm going to drop that analogy now.
Back to the original quote, everybody has to follow the laws. If we don't follow the laws, there is no hope for justice. Jurys rarely if ever have to explain what they were thinking, and the best a judge can do is declare a mistrial and start over. Sometimes the law is fucked up, or it shouldn't be applied in a specific circumstance. And a jury can do that. This is of course ripe for abuse, if my buddy is on the jury of my trial, maybe I don't get convicted - but there are a bunch of laws around jury selection so hopefully that doesn't happen to often.
Nullification, however, is the last bulwark against an overzealous State, and a powerful signal of no confidence. It's so destructive to the credibility of the system, it is one of the few things I can honestly say is only spoken of in hushed contexts, and with dread by many because of the unpleasant nature of the circumstances that warrant the existence of such a safeguard.
No one wants to believe a government could get so out of hand it has to get reined in in such a way. It can though. That's why it's important.
It was always a court of men, justice Holmes, not law.
But judges get to stretch and squeeze laws all the time, all the way from nullification to the most unhinged overreach. And unlike juries, they get to pretend they didn't. And in an SC judge's case, it takes a constitutional crisis to overrule them.
It's personal power on an unbelievable level, yet this guy pretends it's not him? That it's instead some abstract intangible force? Seriously, what a terrible person.
And if elected lawmakers produce a clear and unambiguous law with a manifestly unjust outcome, to get that fixed society should turn to lawmakers rather than judges.
Or they first arrive conclusion/decision they want for a particular case or topic, and then rationalize their decision (perhaps ignoring precedent) when they write their brief.
And sure, in an ideal world things would get fixed in the legislative branch. But can you blame anyone for going where so much of actual power is?
Well, the justice system has a number of types of discretion:
(1) Determining facts. Two first-hand accounts disagree, which do we find most believable?
(2) Discretion granted by lawmakers. This person has been found guilty of X and the law calls for a prison sentence of 3 to 15 years depending on the facts of the case, how long should the sentence be?
(3) Discretion in how to interpret the words of the law. For example, if a farmer grows wheat to feed to his own livestock, and it isn't sold and doesn't cross state lines, is that still "interstate commerce" because otherwise the farmer might have brought feed on on the national market?
You're never going to remove (1) or (2) from the legal system, of course. But some people would say (3) is a question of politics which should be resolved through the political system - not through the justice system.
It brings up related two latin phrases and one in spanish
de minimis non curat lex / de minimis non curat praetor [1]
De los asuntos intrascendentes no se ocupa el magistrado
On one side we could have the "hanging prosecutor" and the other extreme, a Chesa Boudin refusing to bring cases forward.
Selecting prosecutors with the wisdom to know where the harsh application of the law is needed, and where electing not to bring forward a case is essential, or, a diversion to a non-criminal path is a must.
Discretion & wisdom are essential.
So I imagine some victims for example may not feel that a minor fine/warning is 'Justice' they can't argue that it was decided by the law ?
The application of law to promote justice is the role of the prosecutor - and that is the part that is most frequently broken.
For example, if a jury finds a defendant guilty of some crime, because they really did it (let's say Aladdin stole some bread from the supermarket and it's clear beyond reasonable doubt that he did indeed), and the law dictates that the _minimum_ penalty is 10 years, then a judge is bound. It does not matter one iota that both the jury and the judge feels this punishment is excessive bordering on ridiculous; in that sense, it is 'a court of law' and not 'a court of justice'. It's not self-serving, it's self-denigrating: Awareness that the judge/jury can't just decide together how to proceed.
That's what jury nullification is about: If a jury member realizes the judge is going to be forced to give a to them utterly ridiculous sentence if the jury finds the defendant guilty, you can simply decide to find them not guilty even though you are well convinced beyond reasonable doubt that they are. Now they are meting out justice and flaunting the law. The jury can actually get away with this (as this news article again shows); a judge absolutely wouldn't be able to.
NB: Current SCOTUS seems to just do whatever the heck they feel like, flaunting all plausible readings of a given law, deference to expertise, and precedence (e.g. how modern SCOTUS opinions often write that Stare Decisis is meaningless – saying that it matters "unless it was wrongly decided" is a euphemism for "it does not matter", of course). So specifically modern day SCOTUS? They seem to think they are beyond the law. It also shows how I really, really don't think you _want_ a court to think itself a court of justice, meeting out excessive punishments because they feel that is just, and letting defendants clearly guilty of egregious acts go free or nearly so for some imagined reason. It also means that any clash with the law has utterly unpredictable consequences. By definition, minimum and maximum penalties clash with the notion that a court is 'a court of justice' instead of 'a court of law'.
It implies that in that court, people care only about laws not justice. That may be so, but if that's the case, that's pretty sad, not something to be proud of.
That rarely happens because nearly everyone votes based on what politicians say rather than the substance of their policies.
The people always get the government they deserve.
Representative democracy is, in my opinion, a significantly worse form of distilling the will of the people into applied justice.
If the task is deducing justice from the will of the people, I’d sooner pick a tiny random sampling of the population to make isolated decisions, than the votes of party-affiliated politicians on laws which cannot take into account individual circumstance.
> This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
i.e., Actual innocence is constitutionally irrelevant.
[1]https://www.supremecourt.gov/opinions/08pdf/08-1443Scalia.pd...
I think that’s very easy for some people to hand wave away as just “a cost of doing business” in a system of justice but is shockingly and appallingly costly for the people who are unfairly burdened with shouldering that “cost” for the rest of us.
Other people feel the opposite way, which is how you get the above statements.
There’s a flaw in the system there, but not with the judge. He’s just explaining his duties according to the law. If you want the law changed, reasonably I think in this case, that’s a political matter not a judicial one.
e.g. this is party why the death penalty is so unevenly implemented. Not because some or most people genuinely feel no crime is worth killing a criminal over. But because there are many issues over an irreversible sentence like death when the evidence isn't 100% ironclad.
Trials could be set up so that a jury is presented with specific questions of fact, and they must rule on those questions of fact. "The jury finds the defendant, Bob Bobson, did enter the house of Vick Victimson between the hours of 9PM and 11PM. The jury finds the defendant, Bob Bobson, did take Vick Victimson's property. The jury finds the defendant, Bob Bobson, did push Vick Victimson down the stairs, resulting in his death."
... but they do not. Juries decide on whether the entire crime occured. Guilt or innocence. Moreover, they aren't generally required to give reasoning for rendering their verdict, and only in cases where there is no rational train of thought possible to determine a crime was committed may a judge overrule a jury's finding on the issue of guilt. The full power of finding of fact of "Did any crime occur here" is in the hands of the jury.
I know of someone who sat jury on a case involving someone shooting into a home. Jury found the defendant guilty of reckless endangerment, but the interesting thing is that the jury's reasoning on the topic was that any discharge of a firearm in a city, by virtue of the denseness of the city's population, with no backstop and no planning on where the bullet would end up, should by default be reckless endangerment. I think one could easily find folks familiar with firearms who would disagree, but it doesn't matter. The jury has the power, in that case, to decide "common sense" dictates that's what the words "reckless endangerment" mean.
Juror with strong opinions "ohh no, never"
You are under oath during jury selection, right? So I guess that could hypothetically get you into some trouble. Although I'm sure it is pretty much unheard of for them to go after somebody who lied during jury selection questions...
(Juror lied about his past sexual abuse. Nothing is really going to happen, but it probably caused him some sleepless nights)
https://www.reuters.com/world/us/judge-grants-immunity-maxwe...
Rule 606 of the Federal Rules of Evidence prohibits a juror from testifying “about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” [0]
Without testimony, how would you make the case for perjury? You can’t force the juror to incriminate themself, nor can you ask the other jurors to incriminate them. There’s no functional way to distinguish between nullification and a deliberated no vote.
[0] See page 25 (labelled as 12) https://www.uscourts.gov/sites/default/files/Rules%20of%20Ev....
You’re almost certainly going to be asked about your ability to make a decision on the basis of the law, and solely the law, during voir dire. If you say yes and then go on to nullify, you perjured yourself.
Lawyer: Are members of your profession stereotypically capable of independent critical thought?
Juror: Yes?
Lawyer: Dismissed.
(They just ask for professions and maybe educational background then infer the rest.)
And each side gets only a handful of dismissals. You waste it on some guy you think is "too smart" and you might not be able to use it on that guy who thinks your client is guilty already.
Not a lawyer but I think you have unlimited dismissals [1] its just there's a limit to the number of ones you don't have to provide a reason for. And I'm also sure the rules vary state by state.
[1]: https://www.americanbar.org/groups/public_education/resource...
So the “no questions asked” dismissals tend to be people who may be sympathetic to either side.
If it’s a murder case the defense may want people who are pro-self defense while the prosecution may not.
Being pro or anti-self defense isn’t in itself a disqualified as long as you can follow jury instructions.
Wouldn't one side having a 49% chance be enough for them to prefer the coin flip?
It’s cool to be sympathetic to criminals now, but the people stuck living with drug dealers and pimps don’t share that.
>In all, there were 46 potential witnesses to the shooting, including Trena McElroy, who was in the truck with her husband when he was shot. No one called for an ambulance. Only Trena claimed to identify a gunman; every other witness either was unable to name an assailant or claimed not to have seen who fired the fatal shots. The DA declined to press charges. An extensive federal investigation did not lead to any charges. Missouri-based journalist Steve Booher described the attitude of some townspeople as "He needed killing."
https://podcasts.apple.com/us/podcast/episode-66-bully/id809...
(Looking at the rest of the Wikipedia entry, I am very sympathetic to the latter point of view.)
Doesn't the jury verdict need to be unanimous? If they can't come to agreement, they redo the trial I thought. So one jury member can force a retrial, but can't force a not guilty verdict.
But yes, the US law system is deeply flawed in many many ways, and most of it is intentionally (through also historically).
In an ideal world a good judge is likely better for you than a jury if the law is on your side. Unfortunately good judges are hard to pick, and elections of judges don't seem like a solution.
In terms of the legal system itself, there is way too much room for power bias that needs reform.
In theory the law is blind, applying to everyone equally. In practice it is executed by humans who are anything but blind. Bad actors exist at every level, police, DAs, prosecutors, judges and yes, juries.
Humans, and humanity, should be in the loop, but equally its hard to find sufficient quantities of good humans to participate.
Especially in the current political climate, elections for judges seem particularly fraught. A blood-hungry mob favours those who take a "lock up everyone forever" approach.
Equally, seeing the court as a mechanism for politics, from the highest court to the lowest, while it might be good for politics is bad for justice.
There is a lot to dislike about the current system with its various prejudices - but reform is hard because quality people are hard to find. And every bad apple in the system erodes public trust - and once trust in the system has gone it is hard to regain it.
So what would be a better alternative? Not necessarily a better system, but a system populated with better candidates. In many places that means voting for moderate candidates who are focused on justice, not law. On people with character, not who screams the loudest, or has the most extreme viewpoint. On supporting those police honestly "protecting and serving" while at the same time having a police force actively rooting out corruption and prejudice.
Trust is hard earned, and easily lost. Mostly its in the "lost" bucket right now. It will take a lot to get that back.
The guy is trivially guilty of killing somebody (enough evidence + admission) but just because somebody killed somebody doesn't mean they are guilty of any specific law (i.e. driving while intoxicated or in this case premeditated murder). You do still need to charge them for the proper law.
----
IIUC, the US gets around this problem by just trying people for multiple crimes at the same time and the jury can render verdicts on each of them.
I have literally no idea how you'd accomplish anonymity in many, many cases.
This was an intentional choice, to err on the side of assuming innocence rather than guilt.
Voters who want someone in office who is not an expert at governing vote for someone who doesn't claim to be an expert.
In reality, it was people elected by male landowners.
Stopping the punishment of crimes is not halting all injustice.
Slavery was 100% enabled by the fact that escaping from slavery was a crime.
A jury can’t decide to make something a crime, they can only choose to not punish a crime.
Some say this would not be a problem because unlike in an acquittal the judge can overturn a guilt verdict. That's not a convincing argument because much of what a jury does is decide which of believable but conflicting witness accounts to believe. The judge often has no way to distinguish between the jurors found the prosecution witnesses more believable (and so the judge should let the conviction stand) and the jurors found the defense witnesses more believable but decided to convict anyway because they didn't like something about the defendant such as their race, or bad things they did not relevant to the crime they are being tried for (and so the judge should acquit the defendant).
See George Stinney Jr. for an example.
You'd have to abolish double jeopardy if you wanted equivalence.
Of course there could be upper laws blocking them from making it an official stance, but it really feels like fighting a reality with theorical boundaries.
The issue is not the abuse of a system hack, and probably more around changing people's mind (which can take centuries and get reversed in a few years...)
We haven't even gotten to the "equal access to voting" part here in the States yet, so we have a long long road before we get to the "voting is a good tool for minorities to protect themselves" phase.
Those representatives have personal moral responsibility for the laws and decisions they make and are sovereign individuals in their own right, as is any citizen. There’s an argument (I think a strong one) that having been elected they have a right to make laws or rule according to their own beliefs and conscience, within the limits of the law. They’re not just the compliant meat puppets of “the people”.
Of course there are examples of direct democracy, in the form of referendums on specific issues, and these highlight many of the problems with direct democracy. You end up with votes raising spending, alongside votes cutting taxes, with a side order of votes banning government borrowing. You get situations like Switzerland voting to align with the EU along with its free movement provisions, then a referendum mandating ending free movement (but not any other aspects of the treaty), then a referendum confirming maintaining the EU treaty. Take Brexit, what does it mean? Hard Brexit, soft Brexit, there are infinite different possible variations. Which one did the British public intend? Well, different members of the public intended different things, who gets to choose? What happens when the public vote for one thing but most elected people in government responsible for implementing it think it’s a bad idea?
The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
To be fair, Switzerland comes very close. The public can pass initiatives or constitutional amendments without government intervention through public votes, and the few Swiss people I know consider this to be the primary political system in Switzerland (not the representative electoral system they have, though they also have a very interesting mechanism for their President which requires cross-party agreement for any government decision).
Saying "no system fully implements direct democracy" feels like a no-true-scotsman stance, since by the same token no system fully implements representative democracy either (AFAIK no country guarantees that there is a precise percentage match of party representation to the popular vote with no lower bound on how many votes a party needs to enter, as it would be unworkable to have such a system).
> The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
The flip side is that in representative democracies (especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world) you are very limited in your choices of leader and thus sentiments which are popular with the public can be completely ignored. There is no mechanism to force a public initiative that has legal weight, so you have to hope that a major party will be in favour of your pet issue and they can convince other bureaucrats to support something that is popular.
I would not say that I'm a proponent of direct democracy but I don't think having some public initiative system would be a bad thing. But if we are going to keep representative democracies with the argument that the leaders represent the people but have some expertise (though cynical people would argue that is not the case anyway) then you cannot have broken electoral systems because their political power is no longer morally justified. But of course, no party that gets in power would likely ever change the entire electoral system since they have a strong political incentive to not do so (and with representative democracies, election promises aren't worth the paper they're written on).
Please don't lump the extremely broken US political system with the slightly less broken British and former colonies (Canada, Australia, NZ, etc.) and even less so with the rest of democratic countries around the world which is usually using representative systems. Furthermore, some countries have explicit constitutional schemes where a petition with enough signatures needs to be voted on in parliament or even called in as a referendum.
I live in Australia. Any system which uses winner-takes-all-electorates is structurally unrepresentative. The party list systems in Germany and New Zealand get closer but have other flaws (enshrining of party politics, no preferential voting) and so on. Even a hypothetical Condorcet system with only one house and no local electorates then has the flipped issue that there is no local accountability. A multi-seat preferential electoral system (which is what I'd advocate for) has a threshold issue where you have to decide at which point a particular percentage of the vote is too low to no longer deserve representation. Any system requires tradeoffs and as we all know from the Arrow Theorem (and the Alabama Paradox) there isn't even such a thing as a perfect voting system, so why would we expect to have a perfect electoral system?
My point was not that these are not acceptable systems (though some are better than others), just that if we're going to start talking about how no-true-scotsman perfect systems, it's not reasonable to ignore that the status quo also has a very similar (and in many cases wider) departure from the theoretical state it should be.
And as a non-American, I really dislike this tendency many non-American people have to say "at least it's not as bad in the States!" -- this just breeds complacency as everyone cares more about what's happening to the political system in a foreign country rather than their own. We should all be working to improve things wherever we are, instead of just pointing and laughing at the US.
Also it's not fair to lump New Zealand with Australia, nor Australia with Canada. They all have completely different electoral systems -- so much so that there's literally no reason to group them in any serious discussion.
We very much don’t. Public proposals have to go through multiple rounds of deliberation, cooling down, revision and supermajority popular approval before becoming law.
Is my understanding correct?
Yes, federal law has general supremacy.
I am saying it is as good as it is because it is not direct. The majority can propose an initiative, but the legislature gets to deliberate and draft a counter-proposal, with all of this taking time and encouraging sponsors to withdraw their initiative. In essence, it’s a way to prompt the legislature in a certain direction. Not for the majority to write the law. For an example of how that breaks, see California’s referendum process.
Of course some systems implement forms of direct democracies, although they are not represented in the UN because they are not taking part in the "game of thrones" of international politics. But saying that no Nation State implements direct democracy is right on point, because "democracy" is the very opposite (by definition, i.e. "power to the people") to the State ("power over the people").
In contrast, most States on Earth (even Kingdoms!) implement forms of representation/election. Now, can we even call that a democracy? Electoral systems as we know them today were designed in the 18th century by french and american politicians/philosophers who were strongly opposed to (and afraid of) democracy so that's a bit of a stretch.
I mean take a very simple issue: ask everyone "should some people be sleeping on the streets when there's millions of empty dwellings?" and they'll all say "no". Now see what the government is doing with this popular will, and you'll understand government don't care about the people and wipe their asses with our needs. Call me "cynical" if you will but i'm certain the people who uphold Nation State have no expertise, and certainly have material interests opposed to ours.
While I think that is also a very interesting topic and I'm sure we would agree on many things, I'm not sure it helps to get into the philosophical argument while talking about real-life political systems and the different flavours of representative democracies.
I don't think i am, sorry if it sounds like bikeshedding. I'm interested in the practical question of who holds political power, and who holds the "legitimate violence" to enforce this political power.
If me and my neighbors can't "legally" define our own sets of rules and regulations (which we can't in France), i just can't call that a democracy. Time and time again i've witnessed local communes get crushed by national/industrial interests... that's a very practical concern, not philosophical, whether you can keep your home and your life or they're going to destroy your entire village like they did around the Hambach charcoal mine (or like they tried in NDDL, or are still trying in Bure).
If you and your neighbours want to not be subject to the French government, you can always go somewhere else. The fact there’s probably nowhere better for you to go is hardly France’s problem.
There are many flavours of representative democracy. It depend what is being represented. In the British system that’s constituencies. In proportional systems, that’s political parties. Neither are particularly more or less inherently legitimate IMHO.
Ultimately whether a democracy and its system is legitimate rests on a consensus of the consent of the people to that system. I think would clearly ludicrous to argue that the British people do not consent to their system of government.
I would consider 10% of a country voting for a party as first preference but less than 0.7% of parliament seats (by which I mean a single seat) being allocated to them (as was the case in Australia until the last election where it's still around 2% representation) to be unrepresentative by any reasonable definition of the word. Whether you feel that the voting system in your country needs to be purely representative in order to be legitimate is a philosophical question and whether you feel that an unrepresentative system is legitimate is a separate discussion.
Whether you think parties should be entrenched or not (I'm not particularly fond of the idea), it is literally not representing the public votes. This is because Australia has winner-takes-all electorates and. You can have electorate systems that don't have one-seat electorates. Winner-takes-all electorates lead to this problem.
> I think would clearly ludicrous to argue that the British people do not consent to their system of government.
I would think it to be naive to argue that every election is a referendum on the fundamental system of government in the country where no party is running on such a platform and there are many factors making it essentially untenable to even attempt to have a third party push the issue.
I suspect few British people would say their government is illegitimate but I also suspect very few would say "I have a continuing and active choice in the fundamental way political power is structured in my country, above voting for individual political parties."
I don’t think it’s fair to phrase it that way, I’m terms of choice. Democracy doesn’t give individuals a choice in how they are governed, it grants them a vote. That’s not the same thing. Also I don’t think it’s reasonable to have the structure of political power up fir continuous change. There should be mechanisms fir change, sure, but in most cases that should be over fairly long time frames with plenty of brakes in the process.
The reason is that changing power structures is extremely dangerous. Once you fall into a peer structure that’s vulnerable to abuse by a clique or even worse an individual, you can easily get trapped in it permanently. In a constantly changing system up for frequent revision it seems like that would eventually be inevitable.
How would multi-seat electorates privilege parties over constituencies? It would literally mean more representation of different views in on electorate.
Is this is a consistent outcome or an anomaly?
Our upper house is far more representative because each state and territory has multiple seats and thus you can get a more representative outcome.
Representative democracy doesn’t require a “precise percentage match of party representation …”, but direct democracy is explicitly defined as a system in which there are no representatives.
> especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world
This is hyperbole. The US system is pretty representative, and the extent to which it isn’t has very little to do with the voting system and much more to do with incentives (elected officials are beholden to their corporate backers rather than their constituents) and to a lesser extent, our two party system.
I'd be a supporter of freedom to decide any rule within a group if there was infinite resources and we'd just move freely to the places we want to be with the groups we want to belong to. Short of that, the majority agreeing on something is probably not enough to warrant changes, but then of course we have to deal with the imbalance...
Sort of. It’s tyranny of the majority [1].
The meaning of democracy has changed over millennia. Classically, democracy encompasses “freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights” [2]. Each of these involves constraining majoritarianism. Unfortunately, in modern use, this balance has been lost, with the term democracy becoming more and more interchangeable with direct democracy, a system that predictably fails.
So classically, no, jury nullification of lynching is a failure of several fundamental democratic principles. But in a modern sense, yes, it’s the will of the majority of a certain set of people.
What you describe was an "age of enlightenment"-style idealised version of democracy that lived for a short time before it was being killed again, bit by bit.
And that direct democracy thing ... it works for the Swiss, and many would argue the problem today is not too much democracy, but too little, and it becoming ever-smaller.
> that direct democracy thing ... it works for the Swiss
We don’t have direct democracy. Our initiative and amendment processes have a referendum component, but it’s tightly moderated by the legislature and requires supermajorities to override it. And to the degree it's being discussed, it's with respect to reforming it so political parties can't bypass the parliament.
It traditionally only means "the electorate decides on topics directly, not with representatives who are not bound in their decisions to their mandate". Again, see Switzerland, which works just fine with direct democratic elections with groups ranging from a few hundred voters on a market square to millions of electors in the country as a whole.
There are practical and logistical problems of course, but there is no evidence of it actually failing. An educated population can decide to defer decisions and a majority probably would. At least the societies ready for it.
I think parliamentary democracy becomes more interchangeable with technocracies with certain groups carefully gate keeping for their in-group. This would fail at least as predictably.
It's also a jury looking at a fellow citizen getting hung out to dry by a crooked/ambitious DA and law enforcement entity, or shifty looking DEA agent and saying "Enough is enough. This is overreach, dirty, and wrong, and every last one of you knows it."
Nothing is a given about how our system works. Justice and politics are constantly evolving things. Each process serving as inputs to the others.
We try to create a world of predictable consequences. We try to minimize the number of places surprising things can pop up from. However, deep down, we bear forward the history of abuses by systems past, which is why we maintain these safety valves, even if they are infrequently used, lest our vigilance wane that they need to be used again.
It's why jury duty is the most important damn responsibility in the country.
The process as we imagine it simply can't work under these conditions. The people are too deranged, and like misbehaving children, need to be contained.
The similarity here being that Congress sat on its hands regarding lynching for over a hundred years, followed by another 100 years of the Senate blocking everything the House brought up till just this year, long after everyone independently decided "hey, let's not lynch people". Its not supposed to be a defeatist approach, its just "hey lets focus on something that has consensus because trying this again is just a waste of energy". I'm interested in some aspects of fiscal and foreign policy, for example. That priority might not come from the same party.
But maybe I'm an outlier like that. I guess also its rather conceited of me, but that's the way it is.
I think of an informed jury as the tire between the wheel and the road, to fill the gap between the abstract judgement of the legislature and the concrete particulars. Tires do fail, sometimes fatally, but they save a lot of wear on the whole system.
No one wanted to come back to deliberate another day, so we convicted on the counts we were sure of and acquitted on the remainder. The aggravated details made no sense as the verdicts were read as they ended up being grossly inconsistent. In the end, the defendant was sentenced to 6 years. It could have been 60 years if the judge had hung around though.
Speeding laws are good when the stop that guy from endangering my kids. Or when they generate revenue from tourists.
Those same laws are awful when they inconvenience me.
Regarding those first 25 years or so: Jefferson's attempt to ban slavery in 1784 failed by 1 vote. Then there was the Whiskey Rebellion in 1791 and then the Alien and Sedition Acts of 1798. So, nothing's perfect I guess...
Red light cameras should effectively catch 95%+ of people who blow through them. Speeding cameras (that are actually on, looking at you NYC) that are super visible are a known deterrent to speeding in Europe. Even parking - in some modern garages they have sensors to tell you when spots are full/empty. Why can't they use similar tech for parking tickets, street cleaning, etc?
I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions. Then, introducing human elements where the cop gets to decide who to ticket adds a bunch of bias that we haven't been able to correct. It's one of the countless examples of humans over-complicating things to the point of dysfunction.
But what's common is that infractions are so widespread that there's a massive backlash and the programs get cancelled. There was an automatic speed trap on the interstate just south of Pittsburgh a few months ago, set up along side some temporary construction with reduced speed limits. A few weeks later there was a headline that it had generated so many tens of thousands of tickets that they were considering it an error and throwing out the tickets.
On this basis, the only people who would be allowed to drive a month after perfect enforcement starts, would be people who don't drive (plus the Queen because monarchy).
(Outside the hypothetical, the imperfection of the UK's speed cameras is such that the only ticket I've received was for an event that happened six months after I sold the car).
IMO the points system is as much about punishing people who depend on driving a lot as much as it is about punishing unsafe drivers.
> I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions.
Yep, this is absolutely what happens. Very hard to get people to self-sacrifice and cooperate if there isn't enough momentum.
One of my favorite things to do on 55mph PA highways near Philly is to go the speed limit. All other drivers on that road are going 75-85mph. They treat you like a terrible person for going the speed limit. But eventually one person slows down behind you, then another, and after about 45 minutes, there's a line of cars going the speed limit, while people zooming by wonder if they should slow down.
Drive the same speed as the other traffic or take the bus. It's safer for everyone that way.
But, my comment wasn't meant to imply traffic is the only place this happens, it was just an easy example. We see the same with (building) code enforcement at all levels from HOA to city/town/county. We see excess policing/enforcement (to the point of infringing on individual rights) in certain neighborhoods and with certain ethnic groups (stop and frisk in NYC, for example).
It's the same reason we veered away from using the metric system at the gas pump: changing things went along with outright gouging. Too many venal actors in the American system.
Weed is a category B drug in the UK: https://en.wikipedia.org/wiki/Cannabis_in_the_United_Kingdom
This means "with penalties for unlicenced dealing, unlicenced production and unlicenced trafficking of up to 14 years in prison, an unlimited fine, or both. The maximum penalty for possession of cannabis is five years in prison and an unlimited fine."
The police absolutely try to enforce this: "In the survey-year ending March 2014, possession of cannabis offences accounted for 67% of all police recorded drug offences in the UK."
Despite this, "In 2017, 7.2% of 16 to 59-year-olds reported using cannabis in the last year, making it the most commonly used illegal drug in the United Kingdom."
If this law, all by itself, was perfectly enforced, the UK would bankrupt itself just on the extra spending in the prison system.
That conclusion ignores the interdependence of those effects. If people knew that it's going to be perfectly enforced, then almost nobody would do it anymore.
(Not that I'm a proponent of this particular law; just pointing out a flaw in your argument. Somebody wrong on the internet -- gotta reply!)
Note that a jury of your peers is rarely available. Instead, it's whoever didn't get out of jury service as weeded by competitive interests of the DA and defense. That might make a difference too.
Only in one direction, I think. Jury nullification still can't render a guilty verdict, when the law says the defendant ain't guilty. (At least in principle.)
Non-guilty verdicts are more final.
The jury is an old form of democracy. The king/government can make what laws they like, but it needs to have enough popular support that a jury will freely choose to convict according to it.
Of course, like all forms of democracy, the outcomes don't always agree with your or my sense of justice.
> it has to be balanced against crimes that are in principle clearly wrong
In this system, whoever gets to decide what is "clearly wrong" has the real power.
Who gets to decide? The jury. That's the point. They have the real power.
Who has the magical power to know which crimes these are that are "in principle clearly wrong" with such certainty that they can override the community's beliefs? We're all fallible humans and nobody has a special private line to The Truth.
I don't think that this is a magical power.
This is arguing in a circle. It's only an "improvement" for someone who already agrees with your ethical and moral claim.
To illustrate why even reasoning from general principles has issues, consider: are you also against punishing people who commit crimes, on the grounds that almost nobody wants to be punished?
Rational argumentation is fine but it requires that we start with some reasonable premises.
Like any math problem, if you get strange answers it indicates that you're doing the problem wrong. If you divide the circumference of a circle by its diameter and you get something like 31.4 you might wanna check your math.
In this case, if you've "refuted" the idea that racially-based lynchings are universally morally impermissible, you might really wanna look at your math.
I can't edit out the double negative in my first sentence which makes it incoherent (thanks to HN's time out system) but I can expect that most readers would see that and understand it is a grammatical error, and I'd expect that they'd have a some certainty about their reading of that sentence.
Yes, but you aren't doing that. You aren't deriving the conclusion that lynching is wrong from some reasonable premises. You're just asserting it. Another poster downthread did offer a reasonable premise, the golden rule, from which the conclusion that lynching is wrong can be derived. But that doesn't completely solve the problem either; see further comments below.
> if you've "refuted" the idea that racially-based lynchings are universally morally impermissible
This claim is already refuted by human history.
> you might really wanna look at your math
You might really wanna consider that ethics and morality are not math. You can't establish ethical and moral claims simply by deduction. You have to get people to agree to them--or you have to impose them on people by force (and then you have to deal with the ethical and moral problem of justifying such use of force). Even if you have premises that you think are reasonable that support your ethical and moral claims, you still have to get other people to agree to the premises. That's why ethics and morality are hard.
There are good reasons why we try to minimise how much of law enforcement that are left to peoples discretion.
I don't know where you're getting this from. Practically all of law enforcement is left to people's discretion. The people exercising the discretion just aren't members of juries in most cases.
It is supposed to be the last, final defense against the perversion of the justice system into political prosecution.
The state can make whatever laws it wants, but it can't enforce them without the will of (some of) the people.
Probably worked, too, when populations were smaller and communities more cohesive.
The state says "take 3 years in plea bargain or risk 15 years and huge debt in jury trial".
If the local community doesn't find them wrong, perhaps it is not as clear as you're claiming.
In that lens I don’t believe jury nullification is much of a problem.
Besides the fact that this ruling was about free speech rights, not jury nullification. You can say all you want outside a courthouse as long as you're not disrupting the legal system or trying to sway a particular jury in a specific case.
After 4 years you can attempt to fix it. Though if the person who you elect actually tries to fix it there's a good chance they will be stopped by the courts from doing so.....
E.G. Let's say bad politician hires bad people who implement bad policies. New politician comes in and tries to fire bad people, they sue saying its political persecution and they haven't done anything wrong and haven't violated the standards of their job or their contract. Court upholds it. They continue implementing bad policies, to the point of snubbing their nose at the person who got elected. What is the remedy here?
That might be true, but the more specific issue England (specifically, London) ran into is that trials for theft were trials by jury, and the jury (staring into the eyes of the accused and recognizing a boy of only sixteen in the box) increasingly found thieves innocent rather than having to have the death of a child on their conscience. Facing a situation where theft was functionally un-punishable by law because no jury would convict on a crime like that with a death penalty attached, the merchant class petitioned to have the punishment stricken from that category of crime.
This is, incidentally, why "right to a jury of one's peers" and "right to face one's accuser" are baked into the US Constitution... A lot of actual justice happens at the intersection of the law and the humans who must execute it.
Having death as penalty for theft is pretty extreme in the first place. Even countries that only chop of your hand seem highly advanced in contrast.
Yes, this is why juries are democratic: on aggregate, they ensure that interpretation of the law still reflects democratic will.
But more to the point - theoretically, regular people in a community already 100% control the law.
The jury of your peers is truly the last word in the United States, and many other common law nations. This is not perfect, but it is better than the alternative.
It's a check on the prosecutor's power that has been gradually eroded by the legal system. Grand juries, similarly, have been eroded in their abilities to check prosecutor power.
Juries are generally charged with determining matters of fact; the judge matters of law. Even without jury nullification, a jury still determines whether the person performed a proscribed act, or did so with the requisite intent, etc.
When people talk about jury nullification, they generally mean the act of a jury actually believing that the person committed the act, but let them off because they don't think they should be punished for some other reason.
If that is axiomatic, it's not the constitution of the US. I don't know about other jurisdictions, but it's silent on the exact duties of a jury.
The only way to preclude jury nullification is to infringe on the rights of the jury as the sole determiners of fact, as you put it.
Without adding another non-jury body that can overrule the jury on what actually happened, how can you ever get rid of the possibility of jury nullification?
The most common place for this to happen is in civil court. A jury can come back with "11ty billion dollars" and the judge can decide "Ok, they got a little overzealous with that, $100".
I've always found this deeply troubling. If the law isn't clear enough for 12 jurors to determine if an act was legal, then how is it possibly just to hold the accused liable transgressing it?
I don't see much practical difference between this and ex-post facto laws. In both cases, a person can be convicted for an act that wasn't obviously illegal at the time.
Sometimes this is relatively easy ("you left blood with your DNA at the scene") and sometimes hard (you have 3 eyewitnesses, they have 7 people claiming an alibi).
Not so easy when you realize that DNA labs are shockingly prone to making type II errors.
Jury nullification is ignoring the law for any reason. In fact, it seems like the normal, "classical" interpretation is to find not guilty to laws you don't agree with. It's also used for people that did it, but the jury sympathizes with them. Otherwise, it could be they think the penalties are just unfair.
All of these things are jury nullification.
I also wonder how many HN readers would be allowed on a jury?
I was on a jury trial when a spouse of a prosecutor office employee was allowed on. People drastically overestimate what will get you moved out of the pool.
In general, they don’t like technical people on technical cases. My employer is known to pay for jury duty, so I always get picked.
Wouldn't that unduly bias the jury selection? In effect the employer is being allowed to buy extra representation.
Usually, there's a limited number each side can dismiss without cause. To dismiss more than that, they have to convince the judge that the juror will not honestly decide the case according to the evidence and the law.
If I’m an expert in cellular towers, you don’t want me contradicting the expert on cellular towers testimony on the basis of the magic knowledge that I claim to have.
If you say in voir dire that you wouldn't vote to convict even if the person is guilty, you're not going to get put on a jury.
It's not illegal in any way. It won't get you thrown in jail for contempt. It is probably protected by the first ammendment to say so. It will get you excluded from the jury.
People do it all the time, in fact.
The exact standard questions asked of jurors in voir dire vary from jurisdiction to jurisdiction, but usually include some variation of if there any religious, philosophical, or ethical reasons you could not convict (or not acquit) generally.
I mean, imagine if you had philosophical, ethical, or reliigous reasons you couldn't convict under any circumstances and you wound up on the jury anyway! If you didn't tell the court this when asked and wound up on the jury cause you lied about it... you probably still wouldn't actually be considered in contempt, but it'd be bad.
When I observed jury selection I saw several people back down from stances that were clearly attempts to get kicked off the jury.
It's not like the lawyers ask one question then dismiss you.
I did see one guy who claimed he believed "all courts are invalid" hold up to some pretty intense questioning before getting dismissed. But by the grin on his face I could tell he relished winning that one.
The reasons that seemed to get a quick dismissal were people who had been victims of crime in the past, people who had family members who were police officers, lawyers, judges. People who held not uncommon beliefs that would bias them (e.g. "I believe that people of color can't get a fair trial"), but not always if the juror said they could make a decision without that bias clouding their judgement.
The ones that picked extreme beliefs just got more questioning until they either admitted their belief wouldn't cloud their judge or that their belief wasn't so extreme as to bias them.
I mean, the judge and lawyers question people for a living, so they know exactly how to drill down and force an answer out.
No one, not the judge, the prosecutors or the defense want jury selection to take a long time and there are only so many people in the pool to choose from.
That said, on a different trial, a serial killer, it took almost 6 weeks to panel a jury. I was there for a week before being dismissed because I’m morally against the death penalty. Even then the judge interviewed me for 30 minutes on this point, including about my religious upbringing as a child.
He was serious, btw.
Just saying you don’t trust police isn’t enough.
You are more likely to get kicked off for a specific profession than a stated belief.
I served on a jury. Can’t imagine why any given HN user wouldn’t be allowed…
They all say no matter how many test juries (their clients sometimes actually pay for them to try out arguments on a group of people), or how much jury study they do…. it is hard to predict how a juror will act / be influenced based on demographics.
My limited experience was similar, folks were not super predictable.
Indictment alone is serious business. It is enough to ruin someone's life, and is not to be taken lightly. So when a grand jury is only given police testimony as evidence, that indicates a shortcoming in the system.
https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...
Most of them.
I don't know, but I was selected for a jury once. That said, I did not make any particular effort to get out of serving. I answered the voir dire questions honestly, but didn't go out of my way to volunteer something just because I thought it might get me out of jury duty. For example, I didn't say "I'm a radical Libertarian who considers the State invalid in principle and strongly supports jury nullification." Had I been asked "are you a radical Libertarian who ..." I would have answered "yes", but it never came up. So I tried to be honest and neutral, and in the end they picked me.
The moral of this story? I'm not sure. I will say this though: I learned a lot from the experience. Hopefully I'm never on trial for anything, but if I ever am, I believe my jury experience might actually be helpful to me.
I laughed out loud at this.
When the lawyers went around the room asking questions, one of the questions was something along the lines of “will you uphold the law as the judge describes it”. 40 odd people leading up to me all said yes, and then I said “maybe”.
I was asked to step outside to discuss my answer. I pretty much said “I know my rights as a juror and if a law is unjust it’s my duty to say so”. They said I could go home after that.
But you're in a very difficult position morally when asked that question (assuming it's for the purpose of removing anyone who will engage in jury nullification). If you actually believe in jury nullification then morally you have to lie right? Otherwise you're allowing someone to override what you consider to be an important civil right. It's no different to someone standing outside a polling booth and refusing entry unless you promised to vote for his candidate: if you actually believe in democracy you need to lie...
To be clear, I am not absolutely convinced by the whole Jury Nullification thing. Obviously it's practically possible but I am not convinced it is a good thing, let alone a civil right or a check on power etc. I am a limey brit and over here we don't "pick" or "disqualify" jurors for better or worse. So aside from knowing people involved in the case, you don't get asked questions like this...
I don't care if he was guilty of Perjury - his "crime" only hurt Hillary...
Instead ,I was on a DUI that resulted in a crash with some extra circumstances. The defense was entirely presented at closing and amounted to the claim that the defendant stopped his car right before the crash, let a hitchhiker take the wheel, the hitchhiker caused the crash, moved the defendant into the driver's seat and belted him in there so that the fire department arrived and photographed the defendant there, and then ran off.
Even if the crazy hitchhiker story were true then the defendant was still admitting to DUI, and, in my mind, being responsible for the crash. It was basically a huge waste of time since all jurors instantly voted to convict.
Simiarly: https://www.reuters.com/article/us-usa-court-abortion-zones/...
My mother was a court stenographer. She had a job in a small court once in nowhere northern california. They had a few jurors skip out of jury duty. The judge told the bailiff walk outside get 2 random people. Sure enough, there was a chef wearing a uniform and some construction worker. BAM. The court is ready.
"and have better outcomes?"
Honesly I have no idea how you'd define what is a "better" outcome.
I think less blatant racism or classism in the verdicts would be better. In the US there's no shortage of examples of poor people of colour getting far more severe punishments for crimes for which rich white people get minor punishment or barely a slap on the wrist.
Anecdotally, I have witnessed Europeans saying much more casually racist things than coastal Americans.
The big problem with juries is that guilt is determined by a random cross section of the population in that area, and if certain prejudices are common in the population in that area, those prejudices will influence the verdict. For example, black people are more likely to be found guilty in racist areas, and white people less so.
Of course judges can also be subject to prejudice, but it's a lot easier to train them out of those prejudices and hold them accountable for them, because it's a much smaller group that requires special training.
If a verdict is “blatantly” classist or racist, there may be more going on than you’ve read about the case. This is pretty common, US journalism is not great and when cases get reported internationally it usually gets even worse.
I live in a no jury country and I would probably feel a tiny bit safer with a jury of my peers, even being aware that this also has plenty of flaws. (That being said, I do prefer European inquisitorial system of justice over the adversarial one -- the latter is present in Anglophone countries and prefers reaching a decision over establishing the truth of the matter.) Even in Poland, the hamfisted "reform" of justice that is fought over with the EU does have some nuance to it. The government wants to control the judges, which is obviously against any sane separation of powers, but the public perception is that the previous system of judge corporations was also corrupt.
I do think, at the face of it, that all jurors should be made aware about nullification.
But also, even if I did it the way you say - does that....make the reasoning any less powerful in your mind?
For instance, I decided I don't want to smoke long before I was mature enough to formulate an argument why smoking is bad for an individual and for the society and before I could see how the tabbaco industry is spending heavily on getting people to smoke.
Is the fact that I decided I don't want to smoke at the age of 15 making the argument I can finely flesh out decades later less powerful in your opinion? Or are you just using it as a logical instrument to undermine what I'm saying based not on a logical point but rather an emotional one?
The reaction from the right wing government and its supporters was barely short of apoplexy, followed by promises to appeal the verdict and change the law to remove this as an option for juries. (So far I don't believe any such legal changes have been made.)
Jury nullification is one of the strengths of the jury system, allowing a representation of the public decide if an act was truly criminal, and should be protected, otherwise it's just 12 people following a decision tree and no better than trial by judge.
[1] https://www.theguardian.com/uk-news/2022/jan/05/four-cleared...
I personally find jury nullification as the ultimate form of democracy.
Under the Criminal Damage Act 1971, no offense is committed if there is a "lawful excuse" for the damage.
The defence argued that there was a lawful excuse on several grounds:
1. The defendants believed they were preventing a more serious crime (public indecency because of the statue's offensiveness).
2. The defendants believed the statue was owned by the citizens of Bristol (as stated on its plaque), who they believe consented to its removal.
3. Their right to freedom of expression and assembly under the European Convention on Human Rights.
The judge instructed the jury that they were allowed to consider questions such as the statue's offensiveness in deciding whether these excuses applied.
Hero.
I suppose it's reasonable for a jury to decide that a prosecution should not have been brought, even if the criminal act can be shown to have occurred. I don't know what other body is in a position to make that determination, so I guess that in some kind of "natural law" view, returning an innocent verdict when the facts say guilty, is morally permissible.
But I'm not OK with juries deciding what the law is, or just completely ignoring the law. My experience (IANAL) is that jurors are interested in the judicial process, assess evidence carefully, and try hard to return a "correct" verdict.
I haven't served on a real jury; I did serve on a mock jury, in a mock trial for training advocates (barristers). It was a date-rape trial, and the "evidence" was equivocal. Interestingly, although all the jurors were sincere and honourable, the jury split male/female on the verdict (I'm a male, and I came down on the male side of the split).
Lawyers instruct juries on the law - "If you believe Bob's account (or, typically, something a bit more specific), then Bill is, by law, guilty of XYZ."
There are "facts" and facts. The undisputed facts are those where both parties "stipulate" - neither party intends to adduce evidence that the claim is false. Juries aren't at liberty to make up their own minds about facts that haven't been disputed.
It's the disputed "facts" that juries weigh - that is, the evidence and testimony.
> Lawyers instruct juries on the law
That's rather slippery; I think that technically, the lawyers are "servants of the court", so they really instruct the court on the law. And "the court" means the judge. The judge then instructs the jury on the law.
But in fact, these lawyers are advocates; their business is to expose those parts of the law and the evidence that are advantageous to their client, and damaging to their adversary. It's not reasonable to assume that the judge is unbiased (any more than the advocates).
In terms of end-to-end "justice system" problems the inefficiency of a jury is a small problem. (As most cases never even see a courtroom. In criminal cases due to plea deals, in civil cases due to settlement, etc.)
Technically anything can be interpreted in two different ways by two people, so even if the judge gives very precise instructions to the jury, they still have a lot of freedom. (And this led to finding murderers not guilty, because the victim was black.) But a bunch of lawyers can be racist too, so that wouldn't have helped much.
That would be Magna Carta, I think. The word you're looking for is "parchment", not "paper". When it was drafted, it wasn't an "old convention" - it was an innovation.
As far as I know, bench trials are successfully conducted throughout the world.
True, for some value of "successful". A bench trial is much cheaper than a jury trial, and is much less likely to come up with the "wrong" verdict. Bench trials are characteristic of justice in authoritarian countries.
I don't think that's right.
You express that as if "the law" is always clear and uncontestable. Reality is the opposite; few laws are drafted to be clear and uncontestable.
The task of the judge is to administer the case. He/she decides what evidence is admissible, what utterances by the advocates are forbidden/permissible and so on. The advocates and the judge may have three different opinions about what the law is, and so it becomes a question for the jury.
So the judge is the authority on the law concerning how cases may be conducted; but not on other legal specialties.
I do think fans of jury nullification overestimate how much juries would be interested in such things.
That decision has nullified the process, and could lead to a hung jury. Or that one person could convince everyone else. I think you might be confusing the hole with the part, and not grasping the power of a single juror.
If anything, the government waste the time of people by bringing cases that should never have been brought to begin with.
That way, the jury can decide, without any evidence, if a law is just. And that should be with as many biases removed, including things like sex, gender, skin color, clothing, etc.
There's always a disconnect in republics between the populace and the representatives. Reps may pass laws the populace doesn't want, and the reps say "we know your best interest". And, getting laws to legalize illegal things usually end up in its own malthusian trap of "politician is soft on crime!"
The check and balance on jury nullification is not telling people that it exists. Yes, it is a pretty crappy check and balance, but no one has been able to come up with a better one.
The story is usually a lot more complicated.
There also reverse cases of this too, because high-profile cases are usually dealt with more severely, not because of race. For example, a cop in Florida killed a 36 year old white man in very similar circumstances to George Floyd, and got off scot-free. So for better or worse, notoriety also comes into play.