R1 Summer Tournament: Jury Nullification
Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.
Round 1 - Acceptance
Round 2 - Constructives
Round 3 - Rebuttals
Round 4 - Defense/closing
Definitions are open and can be debated.
"The helots [slaves] against the elites. Those who have the privilege of being able to speak also have that of saying no, an act whereby they express their critical consciousness."
- Jean Baudrillard, Fragments
I. The Law as Doublethink
In George Orwell's novel 1984, he describes the Ministry of Truth, a government building in which workers knowingly falsify documents all day long, and yet believe what the new records say for them, i.e., they believe that they are falsifying the records, and they believe in what the falsified records say. These two contradictory positions are what he dubs as doublethink, in which someone knowingly has two contradictory opinions, which should be, and are, mutually exclusive, only to believe in both of them at the same time.
The current position of law in the world today (and the United States in particular) is no different on any level. Citizens willingly understand that the law is a political arena for which individuals vie for power through not-so-great ways (e.g., corruption, partisanism, etc.), yet they also believe that the law can be upheld through a-political means and through objective means (e.g., that judges always make objective decisions, that police enforce the law equally, etc.). In essence, individuals believe that the law is inherently political in means and existence, yet individuals also believe that the law is enforced through just, a-political, and equal means.
Through this doublethink of the understanding of the law, citizens are often complicit and silent in the oppression they face; if they believe that the law is just and impartial, then they often will not speak out against government decidedly ruling against justice. John Hasnas in The Myth of the Rule of Law provides an excellent articulation of this idea, "[f]or if citizens really believe that they are being governed by fair and impartial rules and that the only alternative is subjection to personal rule, they will be much more likely to support the state as it progressively curtails their freedom."
The law is inherently unable to be objectively enforced, for the law, as opposed to the real world, makes decisions that are based around 'logically sound' conclusions. The measure for what a 'logically sound' conclusion is, only deals with the conclusion itself and not what premises it comes from. If the premises are contradictory, almost any logically sound conclusion can and will be met, and thus the objectivity of the law comes into question, especially when the premises from which the conclusion arises are open to extreme interpretation. Even a strict wording of the law does not lead to uninterpretable laws, because "we could not produce such a legal code because there is simply no such thing as uninterpretable language," (John Hasnas) and thus, the objectivity of the law does not exist at the level in which we are told.
And let's assume for a moment that we could make a set of un-interpretable and completely objective laws, why would we do so? The more rigid in which the law becomes, the less likely that it is able to exactly provide justice to an individual (for example, a strict reading of murder laws could make those that use self-defense murderers, and there are countless other objections one could raise), and the purpose of the law is to provide an orderly and just experience within life, even if these two ideals are in tension. If the law were fully rigid, then it would have no ability to consider the "equities of the particular case" (John Hasnas). Thus, an embracement of the fluidity of the law is the only way to preserve justice.
II. Jury Nullification
Jury nullification exists as a way of subversion to the law and to expose its fluidity. A rejection of jury nullification is a way of reducing the ability of the oppressed to flex the system and to have it change to meet a standard of what is just, for example, even after the 14th amendment was passed, many courts still found ways to promote segregation -- an individualistic use of the flexibility of the law, even if the law does not exist on an objective level, still finds a way to promote justice abroad. To nullify the law when it is against justice for an individual is to embrace that the law is flexible, and to embrace that the law's purpose was to exist as a way of enforcing justice.
John Hasnas again writes, "the juror’s act of nullification ... exposes the indeterminacy of law, but does not create it."
And jury nullification works as a way to breaking down the ways in which doublethink runs our lives -- if we no longer think that the world is objective in nature and application, then we can find ways to try to change the ways in which justice is served to people. Instead of a blind following of the path of what the government tells us, we are able to provide what we believe justice to be.
Jury nullification serves as a way of stopping the cogs from turning from a while by jamming one cog -- after a while, the entire system stops working as it did before. Just having one dissenting opinion in a jury results in a hung jury, and that is incredibly empowering for those that wish to stop the oppressive forces for which they come from. If injustice is seen and injustice is brought forward, the only ethical demand is to promote justice, and justice can only exist within the flexibility of jurors themselves -- justice is only preserved when an individual embraces the fact that the law describes justice, not prescribes it.
Baudrillard was correct in writing that dissenting against injustice leads to critical consciousness, and that leads to the ability to remove our doublethink.
Before I begin the argumentation, I would like to thank Tejretics for hosting this tournament and Lexus for challenging me to this debate. I wish my opponent luck.
We need to value this debate on the effect of the passage or nullification of this resolution on injustice in the legal system. Thus, if I can prove that jury nullification will bring about corruption and injustice, the judges should feel comfortable to vote in my favor.
Contention 1: Jury nullification ignores subjectivity
Jury nullification has the ability for a jury to not execute justice. This is epitomized by a case in 1955 where two white men were sent to trial for the murder of a black teenager. Even though the evidence pointed toward the two white men murdering the black teenager, the men were acquitted. Later, they even admitted to killing the teenager, but due to the double jeopardy clause in the constitution, they could not be tried again for the same crime (1). This is only one of many examples of when jury nullification can go wrong. Remember, the resolution specifies perceived injustice, which is ridiculous considering the fact that injustice is perceived differently by different people. For example, in the previous example of the killing of the black teenager may be considered barbaric and unjust and should have resulted in a punishment for the perpetrators nowadays by me and my opponent, there may be a different conclusion met by others. This results in a problem because different juries will come to different conclusions based on moral principles. This is due to implicit biases which pervade our thoughts and beliefs. Implicit biases are, according to Harvard University, preferences and feelings that avoid conscience and thought (2). This applies to all, even juries, and cannot be accounted for. This can lead to poor decisions involving jury nullification such as ones involving race, gender, etc. This leads us to the obvious, that we open up an opportunity for people to abuse the system of jury nullification through their own eyes of “perceived injustice” and will probably never know it happens, since the bias they have is implicit. This can be easily confirmed by McElroy of the Independent Institute who states that juries can easily achieve the opposite of their intended goal; they can further injustice by refusing to convict those who are guilty of violating just law, such as the juries that refuse to convict police officers who use excessive force, which occurs at an impressive rate because juries are more reluctant to apply the law to a police officer (5).
Contention 2: Constitutionality
The resolution, if passed, would be in violation of the constitution and the very basis of our legal system. Specifically, we would be in violation of our 14th amendment’s equal protection clause which states that everyone is equal under the law as explained by the Legal Information Institute of Cornell University (3). By changing the law simply because it is disagreeable to the jury would be a disservice to the people because by changing the law to simply acquit someone, one would imply that the jury is “above the law” by changing legal code at will to fit a need of the accused. This is not the duty of the jury, but of the Supreme Court to interpret the law. This is outlawed yet again by the constitution when it gives the specific powers to each branch of government. Also, it should be noted that the government always has valued the representation of people in legal matters. That is why our system allows us to elect officials to represent the people in legal proceedings. But, as pointed out by McKnight in 2013 of the BYU Law Review, the jury is not a body that represents the whole in demographic nor does it embody everyone’s beliefs or at least a majority of people’s beliefs (4). Not everyone is directly involved in the process, much less the people who should be striking down unconstitutional laws, which is the Supreme Court. In fact, Marbury v Madison is the legal precedent that gives the Supreme Court the power of judicial review meaning they interpret the constitution’s meaning and apply it to law (6). Since powers are also separated in a way so that one branch or part of government is no stronger than the other, jury nullification is dangerous because it sets a precedent of overriding the constitution and threatening the balance of the three branches of government by allowing basic juries to change the code of law, which gives the judicial branch too much power. The highest court in the land will not be the only one to strike own laws, but any jury that perceives injustice in a case, no matter the objection, still has the chance to strike down laws which Congress created. This all happens while setting a precedent of violating the constitution which means skewed public opinion and a pivot toward a less democratic society.
Contention 3: We create fluidity in the law
Remember, the rule of law is universal and affects everyone, shown by the 14th amendment and the due process clause in the 5th amendment. Former attorney Fissell shows that substantive rejections of the legal text violate the rule of law by accepting the community’s collective morality (7). This is a problem because this means that the social contract is broken, which is described as the contract between government and people where people give up certain rights for protection, which also means submitting to the rule of law (8). Laws are meant to protect the people and make certain that people can live in a civilized society where autonomy is protected as well as the will of the people. However, with jury nullification, that is threatened. This will lead to a society where people do not live under the rule of law, but of anarchy as people use a “community morality” to determine whether someone committed a crime. However, this means that congruency in the law is threatened which is one of the reasons we institute law to begin with. After all, we need agreed upon rules so that the efficacy of the rules themselves remain, as stated, again, by Fissell (7). After all, if people are in general agreeance, who needs legal text? This is the problem, when rule of law is threatened, so does all laws and the legal system.
Because jury nullification does not take into account subjectivity, the constitution, or the fluidity that would be created in the law with the passage of the resolution, one must fail this resolution.
My valuation of expressly destroying doublethink will outweigh blamonkey's on the prevention of corruption and injustice; there are two reasons for this:
And further, just focusing on the direct material consequences of answering the resolution as a "yes" or "no" works as a way of masking our oppression, because it is always present unless we critically examine its existence; prefer a politics of exposing oppression which serves as preventing corruption and injustice, as opposed to only trying to stop parts of corruption and injustice.
There will be more analysis on this as the round and the debate itself progress.
I. Jury Nullification Ignores Subjectivity
There is a difference between normal jury nullification and jury nullification used in the face of perceived injustice. While not incredibly obvious, the latter supposes a well-rounded and genuine feeling of injustice being brought against the accused. Both of the examples that blamonkey has given are examples of jury nullification in the broadest sense of the word; we weren't there so we cannot speak to the specifics, but the proof that Emmett Till (say his name) had been killed by his real murderers is overwhelming and was too at the time, however, the jury did not genuinely feel that Emmett Till's murderers had faced injustice by being there -- they legitimately thought of him that he was in the right, not that he was being injustly brought foward.
The specific implicit biases that blamonkey had mentioned are exactly what sets this case apart from other examples of jury nullification in the face of perceived injustice. The reason for this is because implicit bias had led the jury believe that the murderers of Emmett Till were not guilty of any crime; they did not believe he was guilty, and because of that, they could not nullify the law in the face of perceived injustice. In many less words, Emmett Till is not a true example; and likewise with the police officers.
But the heart of the argument blamonkey presented is that morality is subjective. This is probably true, that which is just for one person is injust for another, but anyone that wishes to go against the system of doublethink and provide innocence to a person in court allows for a critical consciousness, ought to have that right because it allows for whatever injustice they perceive to be eliminated. This exact critical consciousness allows for the elimination of the oppressive forces (prison industrial complex, black neighborhood policing, etc.) that the juror perceives.
And blamonkey must remember than one single person does not have the ability to acquit any person on trial -- that would likely either result in a mistrial or a guilty status for the person on trial. So, the morals and question of "what is just?" should apply to the many people in the jury, which while do not reflect the community in its entirety, does represent at least part of it.
Do not be mistaken -- the resolution serves as an opening discussion about whether jury nullification in the face of perceived injustice ought to be used, neither of us are fiating it's existence beyond just this website. It is a question of morality and ethics and whether it would be a good thing, but it does not make mention to whether or not the resolution comes into effect.
With that said, there are multiple problems with my opponents' analysis, and most if it stems from the fact that the Constitution does not apply to juries, it applies to the Federal (and State, local, etc.) governments specifically. Look at the wording of the Second Amendment:
Thus it protects against governmental intrusions and sets codes for government action. None of blamonkey's arguments about it "threatening the balance of the three branches of government", nor the impacts stemming from that, are anywhere close to the truth -- the jury isn't the government, and it allows for an appropriate check against oppressive forces used in courts around the nation -- it is the easiest check against the Judicial Branch we know of, the Executive and Legislative branches have very very little influence over courts.
Ignore all of blamonkey's arguments here, they stem from a misreading of what the constitution stems from and what it protects, even misdiagnosing what the jury serves as in the government. None of the impacts read are relevant to the debate.
III. We Create Fluidity in the Law
Blamonkey starts off by writing, "[r]emember, the rule of law is universal and affects everyone," but such an interpretation of how the law exists and how the law is carried out is as far from the truth as humanly possible - it is undeniable that crime bills in the 1990's served as a way of harming black communities, even if the wording was ambiguous enough to also target white communities, it simply didn't through enforcement, and that is just one example of many.
The arguments that blamonkey later presents about 'anarchy' and 'community morality' are just as far from the truth as before. These are all non-sequiturs and are non-unique to jury nullification in this instance, this idea of 'community morality' is ambiguous enough to apply to any action a jury takes -- did we descend into chaos when the Till murderers were acquitted? If not, then it is plain to see that this impact is nonesense.
If a law specifically targets slaves who escaped in the South during and prior to the civil war, and that is unjust (we would agree), then there is no need to talk about how the community will descend into chaos when the community nullifies that instance of the law. Remember, jury nullification serves against perceived injustice when it is seen, it does not attack all laws that exist. We no longer enforce laws that dictate what to wear on certain days of the week because it is nonsense, and if anyone were to be brought to court for that, the jury should know that morals and ethics have changed since the writing of the law, and to let that injust act go.
And even so, fluidity is inherently good, look back to the constructives, I provided an excellent reason for why fluidity is necessary, but mostly, it is to combat hyper-strict readings of the law; the word is always interpretable, so embrace that fact and allow for it to permute. This fluidity is perfect for my valuation of deconstructing our doublethink -- look to that as well when evaluating the debate.
Rebuttal 1: Doublethink
My opponent purported that the doublethink principle encompasses corruption and my framework as well. However, I have proven that we would actually exacerbate the problem. Remember, my opponent claims this.
“Citizens willingly understand that the law is a political arena for which individuals vie for power through not-so-great ways (e.g., corruption, partisanism, etc.), yet they also believe that the law can be upheld through a-political means and through objective means (e.g., that judges always make objective decisions, that police enforce the law equally, etc.).”
My opponent has yet to take into account that everyday citizen on juries are not immune to corruption and vie for power through “not-so-great-ways” as well. There is always an implicit bias when it comes to the law, as I have shown through my Harvard card (1). We are not removing the doublethink if we are simply deluding ourselves to believe in juries to judge equally with implicit biases, meaning we still uphold law through biased practices. Remember, the 12 people in a room determining the guilt or innocence of a defendant are not guaranteed to be less biased or corrupt than any lawmaker. I have offered an example of biases getting the better of juries through the Emmett Till case. In other words, we do not remove the double think in our system since people will still think that justice can be served in apolitical ways because of the jury nullification resolution being passed, yet what ends up happening is that juries are still corrupt and broken, as shown by juries’ reluctance to convict police officers who were clearly guilty (2) and the Emmett Till case, resulting in flawed decisions and continuing the doublethink. It would actually worsen the process because only twelve people are represented in a decision to nullify a law, meaning more entrenched oppression of the people, this time not from lawmakers. Also, my opponent claims that because one dissenter would result in a hung jury holds no water in today’s debate. Remember, it was multiple people who acquitted the murderer in the Emmett Till case, which is epitomizing injustice.
My opponent also seems to be under the assumption that jury nullification is the only sound way to change law that is perceived as unjust. This is untrue as the Supreme Court, Congress, and the president do this on a regular basis through vetoing unjust laws, striking down unconstitutional laws, and representing people’s will in congressional debate.
Finally, it should be mentioned that just because jury nullification would be able to occur with the passage of this resolution, this does not prevent the fact that many people will still be governed by unfair laws. The jury can only nullify laws that come to court and only, as my opponent has made clear, if all people in the jury agree. Progress is unlikely to be made to the effect of what my opponent vouches for. Also, there is a chance of unjust rulings occurring due to skewed interests.
Rebuttal 2: Perceived injustice
Cambridge defines injustice as being the condition of unfairness (3). Jury nullification in the face of perceived injustice still falls under the Emmett Till case as the jury found it unjust to convict the guilty party, thus they did not. This can go for the police officers as well. Also, my opponent concedes that morality is subjective, meaning every single impact still applies as people will use their own moral compass, no matter how outdated or unjust, and will apply it to court decisions. My opponent says it is worth it if the end goal is to get rid of the double think principle, however, I have already shown how the double think principle will not apply here as it will still remain in our criminal justice system even if we were to affirm the resolution.
Rebuttal 3: Constitution
No, the constitution is the law of the land and applies to people no matter how they are categorized. Juries fall under the constitution just as the Supreme Court does. Remember, the constitution itself states that all people have the right to an unbiased jury of people that decides whether the law was infringed or not (4). My opponent cannot claim that some are above the law or the constitution especially considering that there are literally 12 people deciding whether or not to overturn law, which is not representative of the whole and is against the 14th amendment’s equal application of the law clause.
Rebuttal 4: Fluidity in the law
I have shown that the fluidity in the law causes people to suffer under the application of the community morality imposed as opposed to law. Law is needed so equal application of a legal code is applied, so the person who commits a crime, regardless of color, socio-economic wealth, or opinions is given the same sentence. Without it, we see people convicting only those who they want to convict. I have given an example of police officers as people who are not convicted of crimes they have committed due to their standing as a police officer. My opponent claims that this will prevent hyper-strict readings of the law, however, by not making sure that the law is concrete, not only do we threaten the equal application of the law, but the efficacy of law itself. Anyone would technically be able to get away with a crime if it is considered against someone’s moral code, which is certainly unjust. If we are going to look towards to most fair system, then we are going to look toward a negative vote.
My opponent also claims that my impact of descending into anarchy is nonsense and asks whether or not the Till case ended up making this country descend into chaos. However, this is conflating two different issues. By passing this resolution we show support for jury nullification, meaning more people will use it in court cases. This will lead, as shown by the Emmett Till cases and the police officer cases, to massive corruption and no rule of law as it can apply differently to different people.
Finally, my opponent gives an example of a law that could easily be nullified to no consequence. I would agree that some laws need to be nullified as well, but by congress and not by a jury. Remember, we are not specifying when jury nullification happens except for when injustice is perceived. This could mean that fair laws could be called into question s well, except a person views the law as unjust, or a group of people.
My opponent’s double think principle will still occur, perceived injustice means absolutely nothing in today’s debate as it could literally apply anywhere and everywhere in a court case, my constitutional points still stand, and fluidity in the law occurs meaning community morality takes place of law. Clearly, this will warrant a negative vote to protect the interests of the US people and the criminal justice system as a whole.
I'll only be responding to direct rebuttals to my constructives, as per the round structure. My opponent and I have agreed for him to waive this round because of him breaking that structure.
Blamoney claims that juries will vie for power in ways that are in "not-so-great" ways, but this is a criminal misunderstanding of the argument being presented, as that was just one example of the way in which we see the law as doublethink. The core of my argument is that without jury nullification, we remain deluded in this idea that the law is both political and a-political, which then props up the State's use of oppressive legislation and enforcement because we never think to combat it directly. Doublethink is not directly removed from jury nullification but it is at least a starting point for raising critical conciousness (per Baudrillard).
I shouldn't have to reiterate that Emmett Till and police are not examples of this resolution's use of jury nullification, because it was not in the face of perceived injustice, but rather, there is an idea that there actually does exist innocence -- biases trump facts, this is true, but that is not at all related to the resolution.
When blamonkey claims "[a]lso, my opponent claims that because one dissenter would result in a hung jury holds no water in today’s debate," the argument is being misread here -- it is that there would be another trial that does not have these injustices being faced, or jury nullification will be used again, until everyone on the jury assumes the accused's innocence. I repeat, Emmett Till's terrible case is not an example of the resolution in action, continuing to say so is intellectual dishonesty.
And blamonkey starts making non-sequitur arguments regarding if jury nullification is the best way to have change -- it probably isn't, but that's not related to this debate at all, we can still reform the system structurally yet also nullify the law when it is being presented unjustly! And the argument that "there is a chance of unjust rulings occurring due to skewed interests" isn't relevant when all people on the jury are seeing injustice, and if not all people see it, the jury is usually hung and a mistrial is declared.
To recap: to think of the law as both subjective and objective removes all of our power to change its existence, only through a critical conciousness and the ability to say that we no longer accept the way the law is being presented, per Baudrillard, can we ever change it. To say it another way, only when we are able to see and vocalize the problems can we hope to solve them, and when we don't examine doublethink with the lens of jury nullification, we can never see and vocalize the problems.
II. Perceived Injustice
The jurors in many police trials and the Emmett Till trial did not believe there was a face of injustice being presented, but rather, that the law simply didn't apply to the accused. The distinction is hard to see but it is important to note: perceived injustice is when the case is seen as injust to convict, but the jurors had seen that there had actually been no guilt because the law didn't apply to cops or the Emmett Till murderers.
Morality may be subjective but the law will always be so too, so allowing some flexibility within the law is the only way that we can acknowledge and embrace the fact that it is subjective. In the face of the rigidity of the way the law is said to be enforced, but the flexibility of its actual enforcement, we need to acknowledge the fact that the law will always be subjectively enforced and brought forth, and so, we need to find ways to make sure it is not brought upon people when it is unwarranted.
Thank you for the debate, blamonkey, it was certainly a good one. Good luck and again, I leave you with the quote I opened with,
"The helots against the elites. Those who have the privilege of being able to speak also have that of saying no, an act whereby they express their critical consciousness."
- Jean Baudrillard, Fragments