On balance, jury nullification in the United States is just
Resolved: On balance, jury nullification in the United States is just.
Jury nullification is defined as the practice of a jury nullifying a law by returning a verdict of not guilty even though they believe that the defendant is guilty because they believe the law to be unjust.
On balance: with all facts considered.
I will define justice as giving each their due. What exactly is meant by "just" may be a point of contention between my opponent and I.
Let the duel begin!
I had a great day yesterday. I woke up early to kayak with some friends, went shopping and grabbed some lunch at a nice hole in the wall restaurant before heading off to the great state of California that evening. I also committed a felony. I'm not sure what it was, but were we ruled by an omnipotent computer-god with the sole imperative to identify law breakers I'd be being processed for booking right now, along with the nearly all of you. Such is the state of our hyper-regulated society and its gargantuan 175,000 page Code of Federal Regulations that we all unknowingly commit innumerable crimes over our otherwise uninteresting lives--behind every straitlaced CPA lies an unwitting criminal mastermind. But have no fear! For the ambitious legal scholar potential offenses can easily be identified in the Code's 1,170 page index. If brevity is the soul of wit, Polonius's jurist equivalent is weeping.
Luckily for us, most of the laws that directly impact us are crafted by our state. Rest easy citizens, because states are always more competent than the feds. That's why changing a lock in a New York public school is a six month, ten step process overseen by a "supervising supervisor". Any deviation from this process is a punishable offense, making it impossible for decent people to do their jobs or live their lives--should a prosecutor decide that your life ought to be ruined, it will be. Tough-on-crime politicians have created an environment where it's considered perfectly normal for men to be sentenced to life imprisonment for such crimes as stealing a slice of pizza or a $2.50 pair of socks. Sock merchants rejoice!
I. The purpose of a Jury
If one had to describe, in a single word, the progression of western government since the fall of the Roman Empire, that word would be "centralization". Despite the fact that our primate brains are only evolved to personally care about 150 people, we are now the proud citizens of polities consisting of hundreds of millions of bodies all governed under the same laws--local nuances be damned. In contrast to the vast majority of human history where local authorities predominated, today the vast majority of our laws are crafted by unelected, distant, and anonymous bureaucrats and rare is the man who has even *met* his so called representatives. In all this absurdity, we seem to have forgotten why the *peer* part of a jury of ones peers is so important. With modern technology we can easily impanel a jury from all over the United States or, for that matter, the world. If they are nothing more than layman fact finders, why don't we?
The answer lies in an assessment of the purpose of a jury. It's a subtle nod to the idea that what constitutes a "crime" is not always objective and cannot formulaically be applied to all situations--only an individuals peers can really understand the kinds of behaviors expected of him and if he acted in violation of these community norms and, thus, his own conscience. There are many things considered wrong in Chicago, for example, that would be viewed entirely differently in a rural town in Iowa. Scholar Mark Edwards calls this concept "parameters of acceptable deviance". People will accept a certain amount of deviance from the letter of the law to do justice to what their conscience demands. To do away with nullification is to defeat the entire purpose of a jury trial and to erase the ancient principle that in order for a crime to be a crime the individual had to act with criminal intent. This makes mockeries of the ideas of law and justice. Discretion is *good* and blind legalism is the cowards way out of having to take responsibility for ruining someones life even when every just bone in your body is screaming at you to stop. Nullification is an essential tool to deliver fair outcomes.
Each situation differs, and human error ensures that no law can be crafted perfectly. As Lysander Spooner said, "Those who deny the right of a jury to protect an individual in resisting an unjust law of the government, deny him all defence whatsoever against oppression." If juries have no discretion, they have no purpose.
II. Nullification is necessary
Nullification is as American as Apple Pie. In 1733, John Zenger of New York spoke out about the corruption of newly appointed governor William Cosby. His trial for sedition, in which his lawyer appealed to the jury directly to nullify, became one of the most famous in legal history and helped establish the rights to freedom of the press we still enjoy. Justice Goodloe explains how throughout history juries have nullified unjust laws from Northern juries nullifying the Fugitive Slave Law to the absurdity that was prohibition.
Very little has changed--our politicians still regularly pass laws that could best described as draconian, except even Draco would say "whoa..."
Let's look at the moral abominations that are three strikes laws, present in 24 states. Leandro Andrade was sentenced to life imprisonment for stealing $153 worth of videotapes. William Rummel refused to refund an A/C repair job worth $120 and was sentenced to life imprisonment. And of course Curtis Wilkerson had the book thrown at him for the ghastly crime of sock theft. The tales go on and on. RollingStone put it best when it wrote that these stories "[read] like a macabre joke, a surrealistic comedy routine." In California alone, over 2800 people languish in life imprisonment for *nonviolent* crimes--Jean Vaijeans 5 years for a loaf of bread looks positively merciful by comparison.
These laws are so blatantly unjust that prosecutors use underhand tactics to conceal invoking them until it's too late for the jury to nullify. Gail Cox tells us of a case where prosecutors purposely kept the jury from being informed that the defendant was a repeat offender and faced life imprisonment until the sentencing phase. One of the jurors began openly sobbing when she found out what their guilty verdict had wrought and the jury "revolted", refusing to return to deliberations and forcing the judge to declare a mistrial. Whiteflames position is that the prosecutors were in the right, and the jurors actions were unjust.
Three strikes laws are far from alone in absurdity. Juan Matamoros publicly urinated 29 years ago and has been on the sex offender registery ever since. His status forced him and his family to vacate their home in 2007. Diane Huang was sentenced to two years imprisonment for accepting a shipment of lobsters in a clear rather than opaque packaging. Phillip Russell destroyed a hard drive containing child pornography, since child pornography is illegal to possess in any circumstance, and was hit by an obstruction of justice charge. According to civil rights lawyer Harvey Silverglate: "Virtually any professional, engaging in seemingly legitimate practices, can find himself in a Kafkaesque nightmare where effective defense is nearly impossible, as the various federal anti-fraud and obstruction-of-justice statutes have neither clear definition nor logical bounds."
Forty years into the drug war, around half of federal inmates are imprisoned for drug crimes, mostly nonviolent and often with unfair and frankly racist penalties. Telisha Watkins got 20 years in prison for setting up a single sale of crack cocaine. Atiba Parker was hit with 42 years for selling below 3 grams of crack. Drug laws, disproportionately levied against minority offenders, have destroyed communities and contribute heavily to Americas ballooning prison population--by far the highest in the world. Moreover due to our system of criminal records, when you strap someone with a felony conviction it makes it almost impossible for them to find a job or live like a normal person ever again, which is why around 75% of former felons are still unemployed a year out of prison. This costs society enormous amounts of money in lost output ($65 billion annually) and forces many back into a life of crime, creating more victims. Each and every time a jury fails to nullify an unjust law it victimizes us all. Welcome to whiteflames world.
Mass incarceration is unfair to the individuals imprisoned and for the society that has to pay for it--it costs more to imprison someone for a year than to send a kid to Princeton. All of these laws need to be modified, but no change is on the horizon. Hyper-liberal California eventually modified its three strikes law, but only after 20 years of tyranny and via referendum--a system most states don't have. Forty years of failure and the drug war continues. Nullification deals with the here and now, it doesn't wait several decades to take action. Politicians, who have every incentive to appear "tough on crime" and no incentive to free masses of offenders, some of whom will inevitably commit well publicized crimes and cost them reelection, will *never* solve the problem. The political system has failed and the citizenry needs every tool in its arsenal to protect itself from tyranny--nullification is not perfect, but given what I've demonstrated about governmental overreach I'd much prefer to be taken to court by an overzealous prosecutor in a world where nullification exists. Voters, which world would you prefer?
An unjust law is no law at all. The task faced by whiteflame is to demonstrate to the voters that were they jurors the moral choice is to imprison a sock thief for life instead of nullifying. Until he does, vote Pro.
2. The Death of Common Sense. Pp. 75
Let's start by establishing these. We have equal burdens. It is my burden to show that the usage of jury nullification, on the whole, presents a net detriment. It is Pro's burden to show the opposite.
Thus, it is not my burden to present a case that seeks to end the right to jury nullification. So, as I'm not seeking to end this right, the right itself isn't up for discussion. I must only show that its usage is generally harmful to justice. Building on that, I also need not argue that jury nullification is harmful in all instances, just as it is not my opponent's burden to show that every instance where jury nullification is used is beneficial to justice. We're comparing uses of jury nullification and attempting to outweigh one another on prevalence, likelihood and impact on justice.
Pro leaves it at "giving each their due", which is insufficient. What is due, and to whom?
Let's start with what's due. For this, we should look to Justicia, the blindfolded statue that adorns so many courthouses around the world, bearing a scale in one hand, a sword in the other. She's a representation of the basic principles of justice, symbolizing the importance of objective enforcement, ensuring balance and order in society. She represents the basic restrictions on the process of seeking judgment through the legal system, most notably that individuals are due objectivity as a means of consistent application of the law.
Onto the who. We could be talking about someone as specific as the defendant in a court case or as broad as the entire American public. Obviously, we are concerned with the defendant in this case, though we would be remiss if we ignored the broader implications of jury nullification in the general public. All possible sources affected should play a role in this debate.
With that, I'll move into my case. Direct rebuttal next round.
1. The duty of a jury
This can be determined by two things: their oaths and instructions.
The oath is vague, but it mentions that jurors should "a true verdict render according to the evidence", which showcases the importance of evaluating the objective aspects of any given case. This does not necessarily mean that that evaluation precludes nullification, but it does require that the case itself be evaluated, as opposed to ignoring the evidence and merely attacking seeking the nullify the law itself.
The instructions vary with the courts, and some courts, particularly the 10th Circuit Federal Court, have made it clear that jurors "must not substitute or follow [their] own notion or opinion as to what the law is or ought to be" and similar language is included in every Circuit Court's instructions.
2. Why do jurors nullify?
Pro hasn't explored the common impetus behind the decisions of juries to nullify, and therefore how they're likely to behave in the majority of instances. Allow me to elaborate with examples
A) They personally disagree with the law or are morally opposed to it
One of the clearest examples of this is marijuana. Many people opposed to the idea that anyone should be punished for possession and/or sale of the illegal substance, and some groups are actually trying to spread a message that this is what jurors should do across the board, effectively eliminating any means to enforce the law.[3, 4]
No doubt many readers will agree with this sentiment. I support legalizing marijuana. But we should be clear that this isn't just about marijuana. Any law an individual finds distasteful or unreasonable can be stated as a reason or a potential reason to nullify. There are plenty of other examples that are highly controversial, such as euthanasia, stand your ground laws, and age of consent laws.
Even if you agree with all of these, chances are you wouldn't agree with Paul Elam, who would vote to acquit on any rape case. Much of his views showcase a general disdain for how criminal justice is applied, which could be used to justify the use of nullification in any criminal trial. He's even got a whole movement behind him, composed of some 30,000 members, any one of which could be on a given jury and take the opportunity to release a clearly guilty rapist back into the general public.[9, 10] Groups like this are not alone, as U.S. militia groups, many of whom are avid readers of the "Citizens Rule Book," believe that "they are 'above the law'", and use nullification as a means to subvert the justice system. This is made plain in their attempts to acquit militia members who are clearly responsible for violent acts. That sentiment resulted in a hung jury for three terrorists known as the "Phineas Priesthood," who were clearly guilty of multiple bank robberies and bombings.
B) They think other laws are paramount
This issue includes all the same aspects as A), as well as jurors putting a given law into a broader context. A good example of this is gun control laws, which many believe contradict the Second Amendment. Many feel that it is their duty to defend the Amendment, effectively allowing them to decide the constitutionality of any given issue and making them nearly equivalent in power to a majority of USSC justices.
C) They view nullification as a way to right perceived wrongs
This often has to do with racism to some degree. Notoriously, when all-white southern juries refused to convict those who murdered blacks and civil rights workers in the 50's and 60's. But race-based nullifications still occur. Cases like the death of Luis Ramirez show that juries do nullify clearly violent hate crimes based on the race of the affected party.. A more well known instance where nullification prevented justice from being served was the Rodney King trial, where jurors nullified to protect police who had clearly stepped over the line, the result of which brought about riots that cost the lives of 53 people and led to thousands of injuries.[14, 15].
Another form of race-based nullification swings the other way. This follows Paul Butler's proposal that jury nullification be used to acquit clearly guilty defendants in an effort to combat racial prejudice in the justice system, seeking to reduce the number of minority convictions.[3, 16] In this case, the sympathies that bring one to nullify are chiefly based on the color of one's skin, and end up entrenching racial divides and divorcing individuals from the means available that do address them.
Note a common theme with each of these reasons: none of them require that the juror analyze the evidence. None of these require nothing more than a juror bringing in their own biased views on what laws should be and how they should work.
3. How Nullifying is Unjust
First, jurors should be required to evaluate the evidence. It's in the oaths they take and every set of instructions they receive, and yet the major potential reasons for why someone would engage in jury nullification necessarily ignores the evidence. Even if a jury is accomplishing some other goal as a result of nullifying, they are fundamentally unjust by breaking a basic contract they made with everyone in their court room. Within the context of the courtroom, breaking this contract utterly destroys justice by removing any fair understanding of how the jurors must perceive the court proceedings.
Second, subjectivity is fundamentally the enemy of any consistent application of the law. Pro is entirely correct that individuals can and often do empathize with defendants, but there's a difference between objectively assessing the circumstances surrounding the defendants purported crimes (like intent and complicating factors), and deciding based on a crisis of conscience. The former assess relevant elements as objective facts, while the latter depends entirely on what each individual juror is emotionally affected by, which readily changes between individuals. The ways that people perceive the law, and its potential deterrent effects, are dramatically altered as a result, especially in places where people are more likely to be sympathetic.
While a sentiment shared by a whole jury may be less subjective (though many subjective views are widely shared), a single juror seeking to nullify is sufficient for a hung jury in criminal trials. Thus, subjectivity need not even be shared to allow obviously guilty individuals to get off scott-free. This has dangerous implications for the legal system as a whole: "No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable".
Third, nullification gives jurors the power to dispense with laws at their individually. Jury nullification bypasses the electoral process, effectively invalidating laws that society has already approved by democratic elections. Including this as a means to alter laws is not just unjust in the courtroom, but for society as a whole, as it means that a small, random group of individuals can purposely ignore laws which have been approved either through representatives or propositions. Laws represent the will of a constitutionally checked majority, as well as trained and educated legislators. Pro's form of justice is a clear effort to subvert the systems we have in place for altering laws, allowing individual jurors to make any law they deem unjust unenforceable, effectively making it toothless in the process and invalidating representatives and the people they represent.
Let's start by looking at Whiteflames framework. There's only one major takeaway here, and that's that it destroys his arguments.
Whiteflame argues that the burden of each side is to prove what the effect of nullification, on balance, is in the pursuit of justice. He emphasizes that he doesn't want to end nullification in all circumstances, but rather that he only wants to prove it's generally bad. This contains two significant implicit concessions:
a) By declining to argue that nullification is inherently unjust in every circumstance, Whiteflame implicitly concedes that there are situations where it is just.
b) By advocating for a debate where we decide who "outweighs", he implicitly concedes that there will be weight on my side--that nullification is just in certain circumstances.
That Whiteflame concedes right off the bat that nullification can be just is important because it utterly destroys his case, the majority of which seeks to prove that nullification as an act is inherently unjust. But if nullification is inherently unjust why would he not bite the bullet and seek to end it entirely? Whiteflame explicitly says he isn't interested in arguing that nullification is unjust in all circumstances, then does precisely that. You must drop all of his arguments against the act itself as they contradict his very framing of the debate. This is a HUGE blow for Whiteflame because he must now outweigh me on the practical effects of nullification and all he has here are two incredibly uncompelling examples of what he (falsely) claims were race based acquittals.
I. Juror purpose/justice
What, from juries, are we due? We are due a performance from them that captures their fundamental purpose, a fair trial and sentence. Whiteflames "justice" gives us none of this. He would have jurors relegated to nothing but layman fact finders, but his explanation doesn't match up with the nature of juries--why must they be composed of a mans peers? If they exist as nothing more than untrained fact finders, we'd be better served by just creating a Corp of professionals to judge every case. But we don't because the institution of the jury exists to provide the defendant with a group of people who can emphathize with and understand them in a way that the blind legalism of the court officials cannot. My explanation far and away better complements the peer makeup of a jury.
This argument that an arbitrary oath made under coercion, which even Whiteflame admits is vague, should outweigh the disastrously unjust effects of many convictions is absurd on its face and strips the jury of any moral autonomy whatsoever--jurors are people, not lemmings and obviously it's justified to break an oath if the alternative is a ruined life and untold societal wealth lost.
Whiteflame thinks that "giving each their due" means mass incarceration for petty and victimless "crimes".
II. Nullification is unjust
I'll address the remainder of Whiteflames argument under this heading, and group it into motivations and justness.
Whiteflame lists three reasons that could motivate jurors to nullify, none of which are compelling arguments against the practice. First he concedes that were jurors aware of the right to nullify, for some laws the means to enforce the law would be eliminated--this is a GOOD thing. We should want to eliminate the means to enforce penalties such as fining a Mennonite farmer $4,000 for selling his neighbors fresh milk or putting teenagers on the sex offender registry because they had consensual sex with their peers.
The fundamental assumption in Whiteflames case is that discretion is bad and that blind legalism is good--for example, his source regarding Euthanasia explains that in mock trials when jurors were given instructions that included the right to nullification they were less likely to convict in cases regarding Euthanasia, more likely to convict in cases in cases of drunk driving, and equally as likely to convict in cases of murder. Not only does this obliterate his argument about dangerous criminals getting off, but he makes no argument for why discretion in highly situational and complex cases like Euthanasia is a bad thing. Why is it bad to add an extra level of scrutiny to determine if a "crime" was really a crime?
Whiteflame lists some scary examples like Paul Elam who would acquit in any rape case or the hung jury in the case of the Phineas Priesthood. Unfortunately for Whiteflame, a hung jury is not an example of jury nullification--according to his own source the Phineas Priesthood members were retried and all given life sentences. Nullification only occurs in cases where the law is SO unjust that ALL TWELVE JURORS unanimously agree to ignore the law and vote to acquit even when the defendant is clearly guilty. A hung jury is NOT an example of nullification. Even assuming 30,000 people would vote to acquit in any rape charge, the probability of getting twelve of them on a jury? (30,000/235,224,016)^12 = 1.85 x 10^-47. The probability of getting a jury who would vote not to throw an A/C repairman in prison for life for bad customer service is quite high. A risk of 1.85 x 10^-47 is one I'm willing to take for such substantial payoffs. How often do juries nullify? We can't tell for sure, but I can give examples of juries nullifying absurd laws like prosecuting a man growing marijuana for his own medical use or filming police all day.
So, racial justice. Draconian penalties for victimless crimes have caused 1/3rd of black men to be marked for life as felons destroying their ability to ever lead even a moderately successful life. It's gotten so bad that Paul Butler, a prominent black intellectual, argues that black jurors should nullify in every case of non violent crime to resist the complete destruction of their community. Unfair laws are almost always directed primarily against the poor and the minority who typically have no recourse to resist this oppression. What does Whiteflame have to stack against this? He has the case of Luis Ramirez where the men were convicted of assault instead of murder and sentenced to 9 years imprisonment. Whiteflame claims this is an example of nullification because one article says so, but he has no evidence whatsoever that the defense's account of a typical drunken street fight gone wrong is inaccurate. Whiteflame then cites the Rodney King verdict, again blindly following the media narrative on what seems like a genuine acquittal--the jury was shown the full video of King repeatedly getting up and charging the officers. Right or wrong, there's absolutely no evidence the verdict came about through nullification.
These are INCREDIBLY weak examples that aren't even nullification. Whiteflame is a superb debater--that this is the best he can come up with demonstrates more than anything else how weak the case against nullification really is.
Whiteflame gives three unpersuasive reasons why nullification is inherently unjust. Note that he can no longer advance these arguments because his framework contradicts them.
He argues that juries should be required to evaluate the evidence, and I agree. The only person excluding evidence here is Whiteflame who wants to prevent jurors from thinking about the overall impact of their sentence and act as robots, not men. The argument that the jurors obligation to uphold their oath outweighs the impact of throwing a sock thief in prison for life is why no one takes deontology seriously--I'm sure the poor souls languishing in prison wth grossly unjust sentences are comforted by the fact that the jurors cowardly followed instructions. Juries upholding their fundamental purpose outweighs their obligation to uphold an arbitrary oath that even Whiteflame admits is vague.
Whiteflame then argues that subjectivity is bad. This attack isn't unique--juries are heavily involved in sentencing as well and despite his idealism since they aren't trained fact finders there's also subjectivity to their interpretation of the "objective" facts. We should endeavour not to completely eliminate subjectivity, which is impossible, but use it to our advantage--discretion is good. Whiteflame concedes that "a sentiment shared by a whole jury may be less subjective". This destroys his case because in order to nullify a sentiment must be shared by the ENTIRE jury, minimizing subjectivity. If no system can survive subjectivity, it seems strange that our system has survived over 300 years of nullification.
His final reason, that nullification circumvents democracy, is the least compelling of them all. Maybe in a real representative democracy this argument could be persuasive, but we do not live in a democracy. We live in a corporatist plutocracy where the vast majority of our laws are created by unelected agencies at the request of their friends in big business. Not a single one of our "representatives" isn't controlled by big money, and the prison industrial complex has spent $45 million on lobbying for longer sentences in the past decade. Politicians, showing despicable moral cowardice, again and again refuse to change the system even though it's patently unjust and costs society untold billions per year. Whiteflame says that nullifying "subverts the system" to alter laws--the dirty little secret is that there effectively ISN'T a system to alter laws. Forty years of manifest, abject failure and tyranny and the drug war continues. A typical example: a 19 year old in Texas faces life imprisonment for baking pot brownies--with laws like these, nullification is not just our right, it's our duty.
A vote for Con is a vote for the system. Voters, the system has utterly failed.
Recall: this debate isn't about the right to nullify, nor is it about a limited set of case studies. We're comparing the result of nullification on justice, comparing their prevalence, likelihood and impact.
I'll address Pro's responses to my case directly in R4, but I will clarify that my "framework" is solely a burdens analysis. Ther e's a difference between limiting the breadth of discussion and explaining what is and isn't necessary to win the debate. I can (and did) argue that the use of jury nullification as a whole is unjust.
While the use of jury nullification is old, its age doesn't imply that juries are acting justly by employing it. They're ignoring their chief duty (make evidence-based decisions) in favor of what amounts to biased efforts to protect the defendant. Defying basic duties is clearly unjust, so all Pro can manage is outweigh it.
No simple task. Jury nullification bypasses the electoral process, effectively invalidating laws that society has already approved by democratic elections on a case-by-case basis. Including this as a means to alter laws is not just unjust in the courtroom, but also for society as a whole, encouraging small, random groups of individuals to purposely ignore laws which have been approved by or as a consequence of the democratic process. Laws represent the will of a constitutionally checked majority, as well as trained and educated legislators. Pro is supporting a system where small minorities can invalidate those laws, and thus those they represent, which is a massive injustice that applies to every American.
In fact, he so strongly believes that nullification is more just that he's advocating it over the use of any democratic means to see laws changed. Pro's so diametrically opposed to the system as it stands, sees it as so utterly corrupt, that he'd argue to subvert it before engaging with it. Under that mentality, why should anyone seek to meet and talk to their representatives? Hell, why should anyone even care to vote? If the democratic system is so fundamentally flawed that a substantial majority of the population can do nothing to affect change, then why bother engaging in it at all? Disengagement creates tremendous harms, allowing the system to perpetuate itself, becoming more corrupt, increasing the practice of passing laws that enhance the tyrannical, corporatist government Pro believes is passing these laws for their own nefarious purposes. Many alternatives avoid these harms, including voting in new legislators, legally protesting, appealing the law in court, etc., and are thus more just.
I'm not sure why my opponent is accusing me of "blind legalism". Discretion doesn't require subjectivity. Societal expectations, community norms and intent are all part of the context and evidence behind a given crime, and all can and should be evaluated objectively. A jury of one's peers can improve knowledge of this context, but the need for subjectivity in these cases is entirely unclear from Pro's arguments. Pro wants jurors to be swayed by appeals to emotion, or even employ their personal opinion on whether or not the law should be applied at all, as a means to come to a decision. While we seek SOME variance based on context, I've shown that consistency is and should be paramount. Basing it on the juror's conscience increases variance massively, defying the basic tenets of justice and removing the blindfold from Justicia.
Pro's supporting a version of discretion that encourages each juror to act as vigilantes driven by emotion to free people from the perceived shackles of a purportedly overbearing system. Whether it's 1 or 12,(and let's be clear: supporting nullification as Pro is doing leads not only to actual nullifications, but individuals seeking to nullify, which is what leads to hung juries) encouraging nullification encourages giving a very small minority a massive amount of power to invalidate the law as they see fit. He's also supporting the ability of individuals to treat the courtroom as their political playground, an opportunity to openly express and execute their distaste with certain laws by invalidating them, replacing any need to protest laws and governments with which they disagree (like euthanasia, marijuana, and other examples I presented) with the ability to negate them at the cost of justice for the wronged and the democratic process.
But if it's more discretion Pro wants, then let's focus on sentencing. Most juries have absolutely no power over sentencing, as they're told "not to consider punishment when determining whether a criminal defendant is guilty or not guilty", which means they have three options: guilty, not guilty, or nullification. Thus, nullification results in a very minimal increase in discretionary measures. Since a judge determines the sentencing, which includes a much broader array of options, their discretion is what we should care about, as it's that discretion that leads to more reasonable sentences. Reform has been achieved recently, and these efforts are being expanded to include many of the issues Pro discusses, including racial discrepancies and drug crimes.[2, 3] It's success is part of a long-building movement that has grown to encompass members of both sides of the political aisle. Support jury nullification undermines this reform and takes the focus off of sentencing, replacing it on very limited set of decisions allowed to to untrained and unaccountable jurors.
Pro seems to be trying to solve for 2 injustices. The first injustice is excessive punishments, and the second is the continued enforcement of the laws behind them. These purposes are at odds. The former requires that we still punish, while the latter seeks to end their enforcement altogether. You cannot both address the thefts he cites appropriately by ensuring that the aggreived party is compensated and nullify the trial to change the three-strikes law. Rather than working to get the punishment down to the level of the crime, he would rather that these crimes go unpunished, that individuals be released from any responsibility for the crime they committed. Pro's argument is made all the weaker by the fact that he hasn't shown that jury nullification has any demonstrable effect on the law, only on individual cases.
The logic he's presenting goes something like this:
P1) Many punishments are unjustly meted out as a result of "blind legalism"
P2) Jury nullification is the best means available to respond to these injustices
C1) Juries should nullify
On P1, what he's shown is that application of the law without understanding the context behind it (intent, circumstances, etc.) is bad. I agree, but as I've shown, a) the jurors don't have much control over the punishments inflicted on individuals, and b) jury nullification doesn't have a monopoly on discretion, or even empathy. Nullification merely encourages the use of empathy in jury decision-making, as well as political bias.
Pro hasn't focused on P2. He hasn't advocated for any system of justice, solely asserting that the potential effectiveness of jury nullification is reason enough to support it. He's done nothing to show that jury nullification is a just means, or to explain how its efficiency makes nullification just. I've already shown both how other means are more just, and how this means is ineffective to alter purportedly egregious sentencing.
These actually reveal a major limitation of nullification. The jurors in each of these cases had the opportunity to nullify, and did not. Factors involved in that outcome aren't changing. Prosecutors will continue to keep information from jurors, regardless of whether nullification is available, and the laws are all still on the books despite its usage. We're not discussing some fantasy system in which more people become willing to use it, and Pro hasn't explained how that could change. That means jury nullification will only address an isolated number of cases and alter few, if any, laws.
Pro's response to these laws is extreme: allow small groups of untrained, unaccountable people, representative of only a limited area (by Pro's own analysis), to upend the legal system by nullifying. Rather than responding to the problem that there's too much power in the hands of too few, driven by career and monetary motives, to affect too many with, he's supporting a system where even fewer people with untold ulterior motives nullify those laws unchecked, potentially having broad effects themselves. Pro is just perpetuating the problem in the reverse direction. Congress may not be representative enough, but they're certainly more accountable than any random jury. Yet Pro wants these people to affect policy by nullifying.
Pro does a lot of claiming injustice without explaining what a just outcome for many of these criminals would have looked like, simply claiming that each case is excessive. Even if we buy that these cases represent unjust sentencing, I'd argue that the unjust means by which they were accomplished either exceeds or negates any increase in justice these afford, since the process of nullification is always unjust, whereas the resulting outcomes for individuals are only just via subjective reasoning regarding what kind of justice should be applied. Meanwhile, nullification of rape laws and mass murders continue from people like the 30,000 members of the men's rights movement and the 300,000 members of the Sovereign Citizen's Movement, leading to injustice in both the process and the outcome. The effect on justice is actually more substantial in these instances, as each trial Pro is talking about affects only the defendants, whereas nullification in these trials can easily lead to unjust physical harms that go well beyond the courtroom.
Large parts of my case are almost completely untouched--the Con R3 reads like a response to my rebuttal.
I. The purpose of a jury
Whiteflame totally drops my analysis of why the peer makeup of juries is important due to radically different social expectations between communities. Extend my analysis and vote Pro--he can't possibly win on inherent justice when he doesn't engage my argument. He doesn't respond in any way to the need for nullification as a safeguard against imperfectly crafted laws punishing non criminals nor the inherent absurdity in "representative" government of such scale. This destroys his argument about nullification being inherently unjust because he's dropped my analysis on why it's a fundamental right and the entire point of a peer jury. His only response is a concession that some contextual variance is good but subjectivity is bad. It's far more arbitrary to judge someone by random values than by those his own and shared by his peers--sharing laws with 300,000,000+ people you have nothing in common with is what's subjective. I don't understand why he's so hung up on subjectivity. If many laws are immoral, and they unquestionably are, it's better to spare some people from a wrongly ruined life than to spare none. I suppose to Whiteflame the Titanic would've been less tragic had everyone died. Because consistency. Recall that were the law applied consistently we would all be in jail.
He concedes that "Societal expectations, community norms and intent...all can and should be evaluated." Vote Pro. The only way in this debate to give these issues ANY voice at all is to allow jurors to nullify. He gives a half hearted counterplan in the form of judicial discretion but virtually every crime has some kind of mandatory minimum sentence and in cases where nullification should be used even the minimum penalty is incredibly draconian so there's absolutely nothing that the judge can do. Moreover there are there are TONS of "crimes" that are anything but, like consensual sex or letting children walk home from a park--in these cases ANY penalty is unjust and an outcome that isn't acquittal is an abomination. An unjust law is no law. Juries have an obligation to resist evil.
Whiteflame continually argues that the purpose of a jury is to act as "objective" fact finders--despite being the only one in this debate advocating for jurors to ignore facts--but he never actually makes any argument for why this should be their sole imperative other than the extremely weak oath argument and his democracy critique. In contract law oaths made under duress, like the Juror oath, are always void. What we're faced with here is a choice--nullifying vs. imprisoning for life a failed AC repairman or a kid making pot brownies. Whiteflame thinks that because jurors were forced to take an arbitrary oath they should uphold laws that can only be described as evil. Enough jurors know better than that. Voters, you do too.
On the democracy argument: One, he hasn't even attempted to address *any* of my arguments throughout the *entire* debate about how the incentive structure disincentives politicians appealing laws. Two, the vast majority of our laws are not made by politicians but by unelected bureaucrats--the statutes passed by congress take up less than a quarter of the space that the regulatory code crafted by agencies does--so if we value democracy there's no issue with nullifying nearly all laws. Three, he never attempts to engage my argument that nullification is necessary because it deals with the here and now. It took California 18 years to amend its three strikes law to exclude non violent crimes through referendum, yet in many places like the Bay area prosecutors had ceased to pursue 3rd strikes for non violent offenders within 2 years as a direct consequence of widespread nullification. Four, he makes no argument for how nullification circumvents other means to change laws. He waxes poetic about how bad it would be if everyone just disengaged, but I'm not advocating for that at all. We can have nullification and still have people vote, argue, ect--his argument just doesn't link to this impact.
If nullification is bad as any juror can just override reasonable laws, we should see this impact happening, but we don't because there's no example where the jurors unanimously agree to nullify a just law as it doesn't meet their parameters of acceptable deviance. Remember, a hung jury is NOT an example of nullification and prosecutors can and do just retry the defendants; nullification only occurs when the law is SO unjust that every juror agrees to acquit even in the face of clear guilt. Oddly, he later claims that my arguments are unsound because supposedly nullification rarely occurs. If nullification is not constant in the face of manifestly unfair laws just how rare is it to nullify just laws? So rare that Whiteflame can't cite a single example. If juries nullify more unjust laws than just ones, and they do, nullification is on balance just.
Whiteflame argues that reform has been achieved lately and we're on the cusp of even more reform. First, this argument ignores the status quo which is what this debate is about--as long as a single unjust law remains it should be nullified. Secondly his claim that "reform" has occurred on the issues I'm complaining about when he really only cites speeches from politicians skirts dangerously close to intellectual dishonesty. Whiteflame fails to give even a single example of actual reform and at this point he can't since I can't respond. The reality is that there's little hope for real reform--maybe a change here or there, but we're at the point where no one even knows the number of federal laws and law professors are warning us that "There is no one in the United States over the age of 18 who cannot be indicted for some federal crime". We need as many tools as we can get to resist overreach. Even if you buy the argument that maybe we are making a tiny bit of progress on the drug war, he has NO solvency for the overregulation of American society which turns us all into unwitting felons. I don't think prosecutors should be allowed to ruin anyone's life with imputiny just because they feel like it. Whiteflame does.
His final argument on this point is the strawman that I would rather let crimes go unpunished than get sentences to where they should be. This response highlights an issue present throughout Whiteflames entire rebuttal: he thinks that nullification is mutually exclusive with other forms of activism when it just isn't. I'd love to get sentences to a reasonable level, but until we do there are a lot of cases where nullification is needed. I admit that were we not to imprison someone for life refusing to refund a bad AC repair job we would be denying a tiny, minuscule amount of justice to the aggrieved party but that is massively outweighed by the utter unfairness of the penalty and the broader robbery of societal wealth used to keep so many people behind bars. I think the jilted AC owner would prefer his kid got a full ride to Princeton over the guilt of helping to mete out a despicably excessive penalty in the name of "justice".
II. Nullification is necessary
Whiteflame makes no attempt to argue against the injustice of any example I've brought up nor against the fact that society is so over regulated that every single one of us is a felon many times over, showing just how absurd the system is.
He argues that since jurors didn't nullify in the cases I brought up nullification never works, an odd critique contradicting his previous argument that nullification destroys the means to enforce the law. This is an incredibly unfair burden to throw on me as it's extremely difficult to tell an example of nullification from a genuine acquittal but what we do know is that despite being instructed to blindly follow the law, lied to about the consequences of convicting, and totally uniformed about their right to nullify, jurors in many California districts rendered their three strikes law unenforceable 9 times faster than the system did.
He attacks my "logic", arguing that I haven't shown why nullification is ideal. I don't have to prove that nullification perfectly solves the problem of unjust laws to win, I just have to prove that it's better than the alternative. In the debate he gives us no alternative to twiddling our thumbs hoping the system finally works. Nullification ameliorates the problem considerably as the California and other examples show and if even one person is saved from a patently unjust law nullification is superior to the non solution he offers. What solves better, nullification or nothing?
Oddly Whiteflame claims that "nullification of rape laws and mass murders continue" despite not citing a single example and links to an article...bemoaning domestic terrorist threats? I don't know what to say here except to point out that the chance of getting a jury that will nullify a rape law is 1.85 x 10^-47. Impacts regarding hung juries are non topical. He completely drops my analysis about how grossly unfair and costly mass incarceration is to both the individuals and the society they belong to. Vote Pro: even if you for some strange reason buy into his arguments for why nullification is inherently unjust by failing to nullify the jury is victimizing us all. This broader societal impact outweighs.
I've demonstrated that nullification is a fundamental right complementing the the peer makeup of a jury. I've shown how our society is grossly overregulated and that anyone, at any time, can be judged a criminal costing society wealth untold and I have proven the gross unfairness of our laws as they stand. Nullification is an essential safeguard of last resort against tyranny and has saved many citizens from a hideously unjust fate. One day it may even save you.
It's still unclear what form of justice nullification upholds. Pro employs appeals to emotion, cases that tug at your heartstrings, making you want to protect these poor, defenseless people from an overbearing government. But it's not enough to argue that some sentences are too long without explaining why dismissing them completely, as nullification necessarily does, is just. Presenting cases of missed opportunity doesn't showcase any benefits from nullification's actual use, much less how it is just. And neither does showing that it is more rapid than its alternatives, as producing outcomes faster doesn't make them just, nor does it mean that faster results are necessarily better.
Pro does provide the Bay area example of how nullification effectively stopped prosecutions in that area. Turn this against him. It shows how thieves and other non-violent criminals were released without penalties despite clear guilt. Like those jurors, Pro's supporting a system where crimes like theft are practically ignored, removing the deterrent effect and no justice for the wronged. It's also a clear example of circumventing the majority opinion in an effort to protect people from what is only a subjectively harmful law, and it likely masked the issue, preventing actual discussion of the law and potentially contributing to the delay in action.
The "jury of peers" argument only reveals an aspect of why juries are formed. That doesn't make it their duty to be subjective. Pro drops that all of his examples of things juries should take into account are covered by objective evaluation. Even if you buy that having jurors who understand the context of crimes is a duty, that doesn't require nullification or its inherent subjectivity.
Any potential benefit is overwhelmed by the basic contradiction in his case: he's upset that a few politicians have so much control over a larger population, yet he's encouraging even fewer jurors to have tremendous control over a larger population. He drops that he's exacerbating the problem in an attempt to solve for it.
A. Nullification as a Means
Pro has continued to ignore my overview on justice, only asserting that I haven't supported my views. He drops my evaluation of Justicia and offers no comparable means for assessing what is just. Remember, this statue adorns courthouses around the world. She is the symbol for what is just. And, most importantly, she represents objective enforcement for the sake of an ordered society. I recognize that subjectivity will exist regardless, but just because we cannot eliminate subjectivity from the equation doesn't mean we should be to endorsing it.
2. Oath and Instructions
Pro"s only response to my point that these specify the duties of a jury is to say that the oath is coerced and vague. The instructions, which Pro dropped, are not the slightest bit vague: "[jurors] must not substitute or follow their own notion or opinion as to what the law is or ought to be", nor are they coercive. As for the oath, it is at least clear in one part: that evaluating the evidence is required. Jury nullification obviates that requirement.
If you read the article, Pro's example of coercion is actually juror trying to get out of jury duty. But coercion doesn't change the fact that other people in those courtrooms have an expectation that jurors would be unjustly ignoring via nullification. My euthanasia link proves, and Pro concedes, that knowing nullification is an option dramatically alters jurors' views of many cases. Since this knowledge isn't improving the ability of jurors to understand the evidence, these changes result subjective views in lieu of evidence. Everyone in the courtroom functions under the assumption that they can trust the jurors to come evidence-based decisions. Nullification betrays that trust. At worst, the oath was coerced, but breaking that oath only adds to the injustice.
B. Nullification's Results
1. Violent Criminals
Pro can't pick and choose the ways that his support for nullification play out. All 12 jurors agreeing to nullify a trial is not the sole result of that support " Pro can't pretend that his support doesn't have effects that go beyond classical nullification. Hung juries aren't non-topical when attempts to nullify are the reason they happen.
I've shown that there are at least 330,000 people who are more than willing to nullify violent crimes. Pro dropped my example of the SCM and their desire to nullify any trial for such a crime. Any one of these people is likely to at least try for it, and they'll have several chances through jury duty. Pro's attempts to exclude these instances is a kind of tunnel vision that ignores the harms individuals can wreak using the same view Pro professes: the need to protect those who would be unjustly punished. Whether there's 1 or 12, these people are actively trying to send violent and dangerous individuals back into the general public. Worse yet, nullifying makes an appropriate sentence for any case, whether it's theft or rape, impossible, as double jeopardy precludes re-trial. At least imprisonment provides opportunities for appeal.
2. Racial Prejudice
Nullification builds racial divides. Pro sources these divides at convictions, but they"re a symptom of entrenched racial prejudice. Butler's ideas seek to use the jury system to discriminate based on skin color in an attempt to reduce racial prejudice, but this perpetuates injustice by entrenching yet another form of racism. My examples of Ramirez and King are emblematic of this. The perception that these trials were nullified by jurors with emotional attachments to the defendants led to further feelings of disenfranchisement. Pro never attacks the link between that perception and the LA riots, and thus fails to address their significant and deadly impact.
I argued that nullification, as a means, is unjust. Pro's never contested this, justifying nullification solely by the ends it achieves. It doesn't have to be ideal, but this means that he has to both win that its ends are just and that the justice of those outcomes outweighs nullification's inherent injustice. Note that he never argues that either of my alternatives are inherently unjust, so even if they're less effective, they automatically have a leg up on nullification.
I presented two alternatives. Note that neither is "twiddling our thumbs".
One is the democratic system. Protest, vote, visit your representatives. Pro attacks its solvency, but a) he contradicts this by advocating for its continued use, which means it is at least somewhat effective, and b) preventing further corruption, which Pro never challenges, shows that it is effective against corruption. He states that they aren't mutually exclusive, but can't both argue that the "corporate plutocracy" is entrenched and pretend that that view has absolutely no effect on how individuals perceive their votes. This is important because all of the harms resulting from these politicians get worse as the public becomes more apathetic about the democratic process. If the system is terrible now, it gets worse under Pro's case.
The second is judicial reform. This focuses on trained, accountable judges, who are clearly more trustworthy than untrained, unaccountable jurors. Pro dropped my argument that juries are almost never involved in sentencing. This is crucial. Look back to his view on the purpose of a jury: to provide a "fair trial and sentence". The most he can accomplish is a fair trial, but he utterly fails to show that he can provide any sort of fair sentencing, whereas judicial reform addresses both. Nullification precludes this reform by masking the need for improvements to the sentencing process, as it avoids sentencing completely. My links show that judicial reform is aimed at reducing minimum sentences, which solves for many of Pro's concerns. The push for reform has recently encompassed both the executive and legislative branches of government, and both political parties. This near universal support is more than just posturing.
Evidence and Fairness
Pro has an odd concept of what evidence is. He views emotional response, despite being entirely personal and unverifiable, as evidence. He views the personal biases you bring into a trial against a given law as evidence, despite relying on highly variant political views separate from the trial. But evidence is fact-based. It's proof, produced in a trial. Evidence doesn't exclude discretion, nor does it incur "blind legalism". It encourages the weighing of all factual information. Like Pro said, jurors"should be required to evaluate the evidence," and yet he's giving them every reason to ignore it.
But why not have a trial where the outcome is decided based entirely on the personal experience and feelings of 12 strangers?
Because of fairness. The very fairness Pro touts as the sole basis for jurors acting justly.
Fairness is the ability of every member of a courtroom to understand the rules and who is bound by them. Fairness is equal treatment regardless of race.
But we're not just concerned about fairness within the courtroom. Fairness is leaving big legal decisions in the hands of a majority of voters and their elected representatives. Fairness is ensuring that guilty and dangerous individuals are tried and punished.
I made clear through my burdens analysis, which Pro conceded, how this debate should be evaluated. It's not about the right to nullify, it's about who outweighs on the impacts of the usage of nullification. In terms of broad effect, likelihood, and severity, my impacts are stronger. All Pro provides is examples of nullification's disuse, a view that shifting power from one minority to a smaller one is somehow just, and a doomsday fantasy scenario where prosecutors are trying to send us all to jail.
Support objectivity, evidence, and fairness within and without the courtroom.
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