Radley Balko has an interesting piece on jury nullification in drug cases. I'm torn. On the one hand, you have to obey the law even if it's a bad law--unless it actually requires you to do something monumentally unjust. On the other hand, laws preventing people from deciding what they can do with their own bodies are pretty monumentally unjust, and they have massively increased the incarceration rates, and subsequent unemployability, of poor black men--so how could I follow the law and help perpetuate that injustice?
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There is nothing "monumentally unjust" about laws which control the use of substances which alter your behavior and cause you to loose control of what would otherwise be "your better judgment".
Laws, and democracy in general is based on this concept of individual judgment/freedom/agency. If you allow people to use substances which dramatically impairs their ability to exercise good judgment you have a difficult time holding the accountable to the fullest extent of their actions, and even more, have some degree of culpability in their actions.
Just because you want to get high and it's illegal doesn't make a law monumentally unjust.
Taking the non-libertarian POV, recreational drug use, at least for people who aren't wealthy, will lead to health and social problems that for some reason people think the government should solve. If we're going to legalize drugs, shouldn't we also be prepared to allow drug users to starve? Die? Have their children taken away?
If you ever find yourself in a situation where you might be facing this dilemma, the right thing to do is tell the judge how torn you are at the first opportunity, and next thing you know you won't be in the situation any more.
If we were meant to follow the law, "God Save the Queen" would be one of our patriotic songs.
The victim can choose not to report a crime.
The police can choose not to arrest a suspect.
The prosecutor can choose not to arraign.
The grand jury can choose not to indict.
The prosecutor can choose not to prosecute.
The judge can choose to throw out the case.
But somehow, it's wrong for the jury to do anything but follow the letter of the law, even if it violates their own conscience?
Drug prohibition is bad law; I don't think people should feel obliged to respect it.
Many recreational drugs weren't even illegal until 1937 or so. Some drugs weren't even illegal until the seventies or early eighties when the Analog Act was passed. Civil society got along just fine.
What is it about this canard that currently illegal recreational drugs drive people into some sort of frenzy where they lose all self-control? This is patently absurd. What evidence do you have for this conclusion? And how does being intoxicated relieve someone of responsibility for their actions? If someone gets drunk and runs somebody over at an intersection or gets into a car accident or beats their wife, they are held completely responsible for their actions. Why would it be any different for any other drug?
Society is already paying to "solve" the issue of recreational drugs by paying to prosecute many thousands of harmless drug offenders and wasting police time and manpower on people who aren't committing any crime against life or property. It would probably cost less to provide care to the subset of drug users who absolutely can't support themselves (they probably have bigger psychological problems anyway) then it does to prosecute every drug user the cops can get their hands on, regardless of whether they are productive members of society or not.
And in any case, I would rather that society give people the freedom to live their lives as they please even if there is a chance that they could harm themselves, versus being forced to live in a nanny state where some government bureaucrat or holier-than-thou nut job wants to tell me what I can or can't do with my own body. We're all adults here; we should be able to make our own decisions and bear the consequences of our actions. It becomes a slippery slope when you start forcing some lifestyle or another on folks. Where does it stop? By the time I die, it's probably going to be illegal to eat a burger and fries in most of the Western world at this rate because some moron out there can't help but stuff their face with like ten at a time and ends up obese. What kind of democracy can you possibly have when people aren't even given control over their own bodies?
There is nothing "monumentally unjust" about laws which control the use of substances which alter your behavior and cause you to loose control of what would otherwise be "your better judgment".
So you believe it's the government's job to make sure someone doesn't "alter their behavior" and "use bad judgment" through pre-emptive planning of the person's life?
What about other things, besides "substances" that do the same thing? Less-than-rational books, for example? Religion? Education? Parents? Ideas in general?
If you allow people to use substances which dramatically impairs their ability to exercise good judgment you have a difficult time holding the accountable to the fullest extent of their actions, and even more, have some degree of culpability in their actions.
Ah, so I take it you support prohibition of alcohol, as well. That explains your strange perspective -- you are a time traveler, lost in time! Please return to your own millennium immediately, sir. You will only find confusion and chaos in this strange time.
Meghan,
You do know why we have jury trials right?
http://en.wikipedia.org/wiki/John_Peter_Zenger
"It was one of the first times in American history in which a lawyer challenged the laws rather than the innocence of his clients."
Juries are under no obligation to follow the letter of the law if they feel the laws are unjust. That is one of the founding priciples of this country.
Megan,
I'm not sure why you're torn.
1) You don't have to follow monumentally unjust laws.
2) You know that drug laws are monumentally unjust.
Therefore,
3) You don't have to follow them.
QED
Paul Zrimsek wrote: If you ever find yourself in a situation where you might be facing this dilemma, the right thing to do is tell the judge how torn you are at the first opportunity, and next thing you know you won't be in the situation any more.
Even better, tell it to the lawyers during the jury selection interviews. The prosecutor will drop you out of the pool like a hot potato.
Even better, tell it to the lawyers during the jury selection interviews. The prosecutor will drop you out of the pool like a hot potato.
I guarantee that any potential juror will be asked a relevant question, depending on the case, such as "Do you believe drug laws are unjust?" or "Do you believe the death penalty is morally wrong and should be abolished?"
So the real dilemma is whether to lie and get on the jury (committing perjury in the process) or tell the truth and get tossed.
Juries are under no obligation to follow the letter of the law if they feel the laws are unjust. That is one of the founding priciples of this country.
See, I have a problem with this because it is essentially anti-democratic, anti-egalitarian, and anti-rule of law. Should our laws be made by the people's elected representatives, charged by the Constitution with that duty, and accountable to the people if they screw up, and uniform for all regardless of circumstances? Or should they be made/unmade by 12 random people at a time, accountable to no one, and able to more or less at random treat identical cases differently?
Which outcome is more in keeping with the ideals all y'all value, such as self-government and equality before the law?
Turning to Zenger, note that he was prosecuted under English law for (ostensibly) telling the truth, by a royally-appointed governor who was patently trying to influence the process. You will note that the facts of the average drug trial in 2008 are slightly different. One can easily applaud the Zenger verdict without believing that it should have more general application.
With the exception of the first comment, I am encouraged by the thoughtfulness of the people posting comments here. Although I suppose given Megan's libertarian bent, I shouldn't be surprised.
The fact is, that while jury nullification can have some disturbing outcomes (think all white juries in the Jim Crow south), it is every American juror's right to judge not just the evidence presented but the validity of the law under which he or she is being prosecuted.
But just don't go saying you think that's true when you go for your voir dire interview. People who think this way need to be on as many juries as possible, particularly for drug cases.
Yes Phil, because I think serious mind altering, behavior/judgment impairing substances should be illegal it means I think books and religion should be illegal.
How about this? If the reasonable, average person takes it, reads, experiences it, uses it, goes to church and hears it, and then proceeds to have the same effect on their body as drug use then it should be illegal.
Alcohol? Well actually I think there is a pretty good case to be made for some kind of legal limits. Oh wait, we have those. If you can drink a can of beer and have the same effect as snorting a line of who knows what (yes I'm not down with the lingo and I don't care) then the beer should be illegal.
But I don't think any can of beer does that.
I'm not interested in debating the merits why we have rules in society with someone who behaves (or argues they should behave) like a child. I'm also content with going my way for you thinking I'm some kind of Fascist! because I won't let you get high.
Hag!
Sorry that my opinions are not thoughtful enough for you DSG.
"Juries are under no obligation to follow the letter of the law if they feel the laws are unjust. That is one of the founding priciples of this country.
Posted by jmo | March 6, 2008 2:26 PM
Seems that jmo and DSG are the only two, so far, that actually understand the responsibilty of the Citizen to uphold Liberty in the face of Tyranny.
The rest sound like prisoners swapping notes on how to get/stay on the Warden's 'good' side....
sorry, STC, missed your post...
"...I would rather that society give people the freedom to live their lives as they please even if there is a chance that they could harm themselves, versus being forced to live in a nanny state where some government bureaucrat or holier-than-thou nut job wants to tell me what I can or can't do with my own body. We're all adults here; we should be able to make our own decisions and bear the consequences of our actions..."
But just don't go saying you think that's true when you go for your voir dire interview. People who think this way need to be on as many juries as possible, particularly for drug cases.
This calls for you to commit perjury in most places.
But then again, maybe perjury laws are so fundamentally unjust that we should just ignore them.
"Alcohol? Well actually I think there is a pretty good case to be made for some kind of legal limits. Oh wait, we have those. If you can drink a can of beer and have the same effect as snorting a line of who knows what (yes I'm not down with the lingo and I don't care) then the beer should be illegal.
But I don't think any can of beer does that."
Sometimes people drink more than one can of beer.
Actually, when you get into the technical aspects of what various drugs do, alcohol is pretty bad. People frequently inflict intoxication upon themselves with alcohol that cocaine users rarely do. The only thing that makes it better than heroin is that the dosing mechanism is less likely to result in an overdose.
I'm confused as to why you are torn. Even if the prosecution has met its burden of proof, the jury is under no legal or moral obligation to convict. The sort of jury's discretion was not only the theoretical intent of our founding fathers, but has been applied in practice many times by juries in the history of the country.
So, what's to be torn about?
Megan wrote: " ...I'm torn. On the one hand, you have to obey the law even if it's a bad law ...."
Put yourself in a time machine and go back a mere 150 years when the Fugitive Slave Act was the Law of the Land in your beloved country. Now imagine that you are on a jury, deciding whether or not to convict somebody who is, beyond a doubt, factually guilty of helping a fugitive slave get to Canada.
Are you still torn???
+++++++++++++++++++++++++++
And now for some practical considerations:
a.) If you want to get out of jury duty, babbling about Peter Zenger and the "conscience of the community" ought to get you sent home in record time.
b.) If you are on a jury and you think that a conviction would be morally wrong, **DO NOT** say anything at all to your fellow jurors about 'nullification'!! Just insist that you are not completely convinced of guilt beyond a reasonable doubt, and then stick to your guns.
sam: There is nothing "monumentally unjust" about laws which control the use of substances which alter your behavior and cause you to loose control of what would otherwise be "your better judgment".
The problem with that argument is that the drug laws ban use, even when consumed under conditions specifically designed to keep the user from hurting others while high, and virtually all governments that ban drugs, refuse to set up places where people can use drugs recreationally safely, irrespective of how much they are willing to pay for this.
"Safety" quite clearly has nothing to do with it and is just a rationalization.
Half_Canadian:recreational drug use, at least for people who aren't wealthy, will lead to health and social problems that for some reason people think the government should solve.
Similar to my reply the sam, the problem with your point, is that the government keeps them illegal, instead of taxing them enough to generate a fund capable of handling these problems.
sam and Half_Canadian: both of you are making a very common error, which is to cite the existence of a negative externality just long enough to avoid everything economics has to say about how to handle negative externalities, or actually look for a middle way to solve the problem that you allege arises.
Just out of perverse curiosity: Should juries be permitted to convict someone who didn't actually manage to satisfy all the statutory elements for an actual crime, but did something which would result in a manifest injustice if he were not punished for it? If not, why not?
Now imagine that you are on a jury, deciding whether or not to convict somebody who is, beyond a doubt, factually guilty of helping a fugitive slave get to Canada. Are you still torn???
Should I ever come to regard the right to snort coke as akin the the right not to be a slave in the antebellum south, please shoot me.
Or to put it another way, even conceding that juries can nullify unjust laws, there's unjust, and then there's unjust.
" ...Should juries be permitted to convict someone who didn't actually manage to satisfy all the statutory elements for an actual crime, but did something which would result in a manifest injustice if he were not punished for it? If not, why not?"
"Aric" at 1:54 PM already answered that. Victims (of real crime) have the discretion not to report the crime, prosecutors have the discretion not to prosecute, etc., etc. So why shouldn't juries also have the discretion not to convict?
In other words, being factually guilty is (or should be) a 'necessary but not sufficient condition' for being convicted.
Or, if you would like a more poetic explanation, there are still occasions when " .. earthly power doth then show likest God's when mercy seasons justice." And dispensing that mercy is one of the legitimate functions of a jury.
In other words, being factually guilty is (or should be) a 'necessary but not sufficient condition' for being convicted.
OK. Why? Mercy and justice should also be available to victims of cruel and unjust acts who have the misfortune not to see the statutory elements satisfied in their case. Or the misfortune to have a prosecutor who bungles something that should have been a slam-dunk.
The proponents of nullification are suggesting that the jury arrogate to itself a function which is constitutionally committed to elected legislators. But this arrogation is only acceptable when it works in favor of criminals, not when it works in favor of victims. Why is that?
Your wish to feel responsible for the failure, bad luck of others does not change the law. The potential user can not count on a charge being nullified just as he can not count on cheating on income taxes not being noticed so flagrant flouting of the law by those who wish to participate in mainstream America does not become normative.
Rob,
As I understand the debate surrounding the 6th amendment, the right to trial by jury was intended as yet another check on the tyrannical power of the state. Congress could pass it, the President could sign it, the courts could inforce it, but if you can't get a jury to convict, the law remains unenforceable.
Person,
My point wasn't that drugs should be illegal, my point was that the social welfare policies that we have (and which are not going away) remove the negative consequences of drug use. If you legalize drugs, I do think that consumption will increase. How many employers want to hire a kid who uses marijuana? Cocaine? Meth? Heroine? Some jobs should require an abstinence from these drugs (truck drivers, policemen, etc.) from a liability standpoint. Others will result in poorer workers (and yes, alcohol does have this effect as well. Hungover workers aren't worth the trouble).
And, as alcohol and tobacco have shown (and caffeine), quitting is hard. Call me selfish, but I'd rather my tax dollars were used to put drug users in jail than to support drug users in poverty.
And yes, I am an *$$hole, thanks for noticing.
Half_Canadian: Yes, damn those taxes on drugs you don't use, to solve problems you don't have.
Taxes on drugs? No. Welfare for drug users is what I have a problem with.
If drug users had to experience the unsubsidized reality of their behavior, their would be fewer drug users (it's called an object lesson). If someone wants to light up a joint legally, that's fine, but that person should support themselves also.
And I do agree that, with short term drug use (particularly with marijuana), there is probably a weak connection between said use and poverty, long term use probably has a stronger connection.
Taxes on drugs? No. Welfare for drug users is what I have a problem with.
Yeah, blast that welfare paid with taxes on goods you don't buy.
(Because you're going to misunderstand that since you forgot the whole context: I pointed out that the problems with drug users would be fixed with a tax on drugs, which would pay for the social problems people claim the drugs generate, effectively defeating that rationalization for prohibition. You claim that this alternative still doesn't satisfy your concerns, but your claim reduces to saying that you don't like taxes on stuff you don't buy.)
sam,
You admit you're not down with the lingo and you don't care. But you're also astonishingly unaware of what illicit drugs do to most common drug users.
The fact is, speaking as a regular user, past and present, of quite a few illicit substances: I've never once lost control of my faculties, never once had to rob someone to support my preferred recreational endevours and while I have wrestled with dependency issues from time to time, nothing, not the drugs themselves nor the pain in the ass it sometimes can be obtaining them, comes close to matching the burden of an arrest and prosecution, to either me personally or my family and community.
I've maintained gainful employment for most of my adult life and when I wasn't employed, it wasn't because I was a drug user, it was because I'd decided non-profit "save the world" work was my professional calling and grant funded positions are tenuous, at best.
I love how the people who proclaim "Drugs are bad and users are losers!" the loudest, are the ones who've not only never used them, but don't even associate with those of us who do. It's very Christian of you!
And lest you think I'm some sort of magic exception, the reality is that most drug users in America are like me, otherwise law abiding, hard working, tax payers who don't deserve to be enemies in our own government's war on us!
It's time all citizens nullify on drug cases!
Yeah, tax marijuana enough to support the poor and people will grow it themselves. Same thing with meth. High taxation created the market for black market cigarettes, so you may want to think that through again.
As well, no tax is ever earmarked for a program. Look at Social Security. Blame the politicians, but that's what will happen.
You cannot have a libertarian stance on recreational drugs and a welfare system without freeloaders. (You can't have a welfare system without freeloaders, but recreational drugs increases the freeloading). Pick one or the other, but don't force both.
And I've worked with casual marijuana users. A less motivated lot I've never met. That's fine if you don't have ambition, but don't complain when you can't afford you're own home.
Half Canadian,
You're only half right about casual marijuana users. Sure, one way to describe us is unmotivated and lacking ambition. But another, more accurate, way to describe us would be, "content with our current stations in life."
Think about it. And btw, I rent, happily!
People who feel this way can be recused from juries.
If they lie so they can get in to a jury in order to nullify I'd favor imprisoning them if that's at all possible. If you want to take on the system like this you have to be willing to pay the price. Thoreau went to jail, Quaker pacifists went to Jail, and many Civil Rights protesters did too. If the cause is just mass imprisonment can get it attention.
Granted I personally don't see the cause as just. I'm also wondering how often this could work. I know of a rich white drug-dealer and addict who I think should be in prison or an asylum. He threatened his parents and stole a car once. If his next arrest is just for possession, and they decided this time his money wouldn't get him off, what would you do? This kid isn't exactly the impoverished addict they're envisioning, but by their logic I think you still might have to nullify and let him free using this logic. Does that really make sense considering his history of threats and theft?
Granted that was an extreme example, but drug addicts also being charged with violence is not uncommon. Even "The Wire" article is not really supporting nullifying in those cases.
Still in general if you just nullify is that really helping anyone? Would it do enough to make the difference desires? Or would it just make applying the laws arbitrary? (or more arbitrary if you prefer) And if the really addicted people go out free are they really better off? Is "the Wire" going to feed these people or pay for their rehab?
Jury nullification supports a Roman coliseum justice. Our most famous case of jury nullification may have been the O.J. trial. I guess fortunately it didn't lead to a whole lot of murders. Probably many people though they idealized the way O.J. could run through airports didn't really see themselves as in O.J.'s class. Phil Spector may have however.
How about the head of Enron?
I think a jury needs to consider the intent of a law and not simply follow the letter.
I can't help but wonder how many cases that don't involve violence or the intent to commit violence actually make it to a jury trial, anyway. I would tend to think most possession or low-level dealing cases are going to get pleaded out anyway.