Topic: Law and Civil Liberties

In Defense of Jury Nullification

Over at my personal blog, I’ve been having a back-and-forth on the issue of jury nullification with an L.A. prosecutor who blogs under the pseudonym “Patterico.” I can certainly understand why a prosecutor would be opposed to jury nullification. Were more Americans aware of their power to nullify — a tool with a rich tradition in the American founding, by the way — prosecutors would have a lot less power.

Patterico’s “gotcha” question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they’d risk perjury charges by taking that oath and then subverting an unjust law during deliberations.

It’s a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I’d like to see a civil liberties group mount a challenge to those oaths.

It seems to me the disagreement between opponents and supporters (like me) of nullification boils down to this: I believe that we have enough bad laws, overly aggressive police officers and prosecutors, and imperfections in the criminal justice system that jury nullification is a needed and justified last defense against overreaches of the state. I think there are a not-insubstantial number of real cases — historically and recently — where real people have been wrongly sent to prison, or sent to prison for far too long, to back this up.

Opponents’ objections can only come down to one of three positions:

  1. They doubt the current system gives rise to a significant number of injustices.
  2. There are a significant number of injustices, but they’re okay with that, in the interest of upholding the law.
  3. There are unjustices, and they are indeed troubled by them, but jury nullification isn’t an appropriate way to prevent injustices from occuring.

I think choice (3) is the least morally objectionable position. But it’s also the least logical. If these outrages really are outrages, and we’re clearly not okay with them, I’m at a loss to see why nullification, with it’s considerable history in this country, wouldn’t be an appropriate remedy. Indeed it seems to be the only remedy.

Remember, to get to this point, we’ve already accepted the premise that there is indeed a significant number of injustices, and that we don’t believe that they’re acceptable. If “changing the laws” were really feasible, then the laws leading to these types of injustices wouldn’t be in place to cause the injustices in the first place. They’d already have been changed, or never passed at all. That, or they wouldn’t have led to the injustices we’ve agreed have happened.

In other words, something clearly isn’t working.

So if you have an unjust law that’s clearly leading to unjust outcomes, what’s the solution if you’re on the jury? Is voting for what you know to be an injustice out of deference to the wisdom of a bunch of politicians really the correct, moral decision?

Put another way, which act is more immoral, upholding a law made by imperfect men, enforced by imperfect men, and that has clearly led to an immoral outcome, or subverting a wrongheaded law the one time you have the chance, and preserving the freedom of a man who doesn’t deserve to go to prison?

Opponents of nullification also really need to answer for what they’d have done had they served on a jury in which the defendant was charged with violating Jim Crow laws, helping smuggle a slave to freedom, exercising his right to free speech in war time, or any number of other clearly immoral laws that have been on the books throughout American history. They need to ask themselves if it’s really possible that, given that history, we should just assume that all laws on the books today ought to be immune from the scrutiny of juries simply by virtue of the fact that they made it through the legislative process. Given our imperfect past, isn’t it a bit naive to think we’re perfect — or even “close enough” to perfect — today?

Keep in mind, too, that upholders of those clearly immoral laws of the past made the same arguments at the time that opponents of jury nullification make today — that even if they conflict with one’s own personal values, those laws should have been respected and upheld by jururs by simple virtue of the fact that they were, after all, the law.

Now, it’s true that many of those laws were eventually repealed or changed. But their later repeal doesn’t account for the fate of the people imprisoned or even executed while they were still on the books. What about them? Wouldn’t it have been better if a jury had assessed and acted on the immorality of those laws before they were repealed? And looking back now, isn’t it a wonderful thing that many juries did?

There is a reason why we’re tried by a jury of our peers and not by a jury of professional experts, trained in meticulously assigning value to evidence. Peers are capable of mercy. They don’t — and shouldn’t — deal solely in cold equations. They can take into consideration and assess more than just the facts of a case. They’re capable of seeing injustice in spite of the law.

And they are the last line of defense against government when government oversteps its bounds.

For more, see Clay S. Conrad’s excellent book on the subject, or his synopsis of the book for Counterpunch.

The Right That Was

Remember FreeRepublic.com? The right-wing web forum for Clinton-hatred, respectable and otherwise? I recently ran across an article, “The Secret FISA Court: Rubber Stamping Our Rights,” that somebody posted on FR back in 2000. (Hat tip: Glenn Greenwald.) The comments are precious:

This is beyond frightening. Thank you for this find.

This does not bode well for continued freedom. Franz Kafka would have judged this too wild to fictionalize. But for us - it’s real.

And my personal favorite:

Any chance of Bush rolling some of this back? It sounds amazing on its face.

Today, when NSA surveillance is in the news, as with the recent decision in ACLU v. NSA [.pdf], you’re far more likely to read this sort of thing over at FR.

Privacy is a false argument and has been for some time. Your insurance company and the credit bureaus have more on you than the feds do and you can do nothing about it. I would rather be secure knowing that the feds were looking over my shoulder and keeping me safe. I have nothing to hide, and in times of war, these steps are necessary.

There are a few exceptions per comment thread, a few throwbacks to the pre-9/11 Right who think skepticism about power is justified even when the Red Team’s in charge. But they’re a distinct minority.

Was it September 11th that “changed everything,” or Republican takeover of the executive branch? Either way, for the Right, it’s a different world indeed.

Scandal in Public Broadcasting

The big scandal in public (or actually government) broadcasting is that the taxpayers are forced to pay hundreds of millions of dollars a year for the propagation of unremittingly liberal views on politics and policy. As I said in my testimony to the Senate last year, I agree with some of the liberal attitudes of NPR and PBS, but I don’t think taxpayers should be forced to subsidize my views or those of anyone else.

The second biggest scandal is that when Republicans get control of the federal government, they don’t relieve the taxpayers of that burden. Maybe it’s because they know the old advice, “Never pick a fight with people who buy ink by the barrel.” Or who have their own nationwide broadcast networks. But it’s unbelievable to me that Republicans appropriate money every year for two networks that could be called ARN, the Anti-Republican Network.

The third biggest scandal is that instead of just privatizing PBS and NPR, Republicans appoint public broadcasting officials who go in like a bull in a china shop and try to force a bunch of liberal journalists to include conservative shows and perspectives. The government shouldn’t be telling journalists how and what to report. Instead, it should just free them to report as they choose, with money from investors and customers rather than taxpayers.

And I guess the fourth biggest scandal is the one making headlines today: that the chairman of the Broadcasting Board of Governors (which oversees the federal government’s international broadcasting), who used to be chairman of the Corporation for Public Broadcasting, is alleged to have improperly used his office. In a State Department report made public by three Democratic members of Congress, Tomlinson is accused of putting a friend on the BBG payroll – something that never happens elsewhere in the federal government – and using office resources to support his personal horse-racing operation, which I suppose goes beyond the March Madness pools conducted in every federal office.

Maybe when conservatives get tired of being hit over the head by tax-funded broadcast networks, and liberals get tired of conservatives trying to meddle in the networks’ reporting, they could both agree to privatize PBS and NPR, freeing them from political intervention and freeing the taxpayers from being coerced to support what Thomas Jefferson called “the propagation of opinions which [they] disbelieve.”

Prepare to Be Shocked

ONDCP is a waste of money:

The government’s anti-drug ad campaign has not been proven to deter children from using drugs, and lawmakers should consider reducing funding for the $1.2 billion program, congressional auditors said Friday.

The Government Accountability Office based its recommendation on its review of an independent evaluation of the media campaign by Westat Inc.

The government has spent about $1.2 billion since 1998 on scores of television, print and radio ads designed to discourage drug use among youth. The ads also describe parents as the anti-drug. President Bush requested another $120 million for next year.

Westat found the ads had no “significant favorable effects” in deterring children from trying marijuana or in getting them to stop. Rather, it found that more 12 1/2- to 13-year-olds and girls were trying the drug after seeing the ads, the GAO said.

Apparently, comparing pot-smoking cancer patients to terrorist sympathizers isn’t resonating with the public. Whoda’ thunkit’?

Full report here [.pdf].

New Botched Drug Raids in NYC

Two more botched drug raids in New York (be sure to watch the video). This is the city that is supposed to have changed its ways since the death of Alberta Spruill:

Two Bronx families said the NYPD mistakenly raided their apartments Monday morning. But the department is defending its actions.

Flexton Young said he, his wife, and their four children were asleep when police broke down the door of their apartment on the fourth floor of 974 Anderson Ave.

“They ripped through my front door, they tore off my closet door, ripped both of my kids’ rooms to pieces,” Young said. “It brought me to tears, and I just didn’t want my kids to get hurt.”

Young said police made a “big mistake” believing they’d find illegal drugs and guns in his apartment.

The raid, around six Monday morning, left the family’s apartment a shambles. Belongings were pulled off shelves and out of drawers, and tossed on the floor. Officers upended a sofa and slashed out the lining, and also dumped out box after box of dry goods in the kitchen.

Upstairs, a similar raid was made on the apartment of the Pastrana family. Police turned several rooms upside down and pepper-sprayed the family dog. Family members said one officer punched a hole in a wall, grabbed an egg beater, and started to poke around inside the wall, looking for hidden drugs and guns.

Nothing was found in the Pastrana apartment, and no one was arrested.

Downstairs, Flexton Young said police gave him a summons for marijuana possession after discovering half a joint in an ashtray.

Note the “new professionalism” on display:

“I had one officer tell me that he was sorry this happened, and everybody else just looked at me and walked away,” Young said.

A spokesman for the NYPD said police had good information they would find drugs and guns in the apartments, and the raid was justified.

If you think terrorizing two families over half a joint is an appropriate use of police tactics, then I suppose the NYPD spokesman is right.

The article ends with a sentence that’s both interesting and misleading:

According to the Civilian Complaint Review Board, more than 300 allegations of improper searches of homes and businesses have been investigated and ruled on this year. Less than five-percent of the complaints were found to be “substantiated.”

This is interesting in that it means the CCRB has confirmed 15 cases of improper drug raids in New York City alone. To my knowledge, these are the first two to have received any coverage in the media. More evidence that the raid map, alarming as it is, doesn’t even begin to tell the entire story.

But it’s likely quite a bit worse than that. As I explained in Overkill, the CCRB’s jurisdiction only extends to the actions of police officers at the scene, after they’ve served the warrant. It has no power to look into the circumstances leading up to the raid. I’ve talked to the CCRB’s spokesman several times. He has confirmed to me that this is still the case today. If a botched raid took place because of a bad tip from an informant, or because someone wrote the the wrong address on the search warrant, the CCRB is powerless to do anything about it, and won’t investigate.

Which means that the CCRB’s failure to “substantiate” claims of improper searches in those 285+ other cases in no way means that the people making the complaints were wrong, or that a “wrong door” raid didn’t take place. In fact, in most wrong door raids, the problem occurs well before the police actually force entry.

Perhaps some small percentage of those 300+ complaints are people intentionally filing a false claim of a botched search. But I have a hard time believing a large number of people would go to the trouble.

I have an op-ed pending on New York City’s use of SWAT teams, but the truth is, after promising the public after the death of Spruill that they would drastically reform the way they use SWAT teams and paramilitary police tactics, city officials have since reneged on most of those promises.

And so the mistaken raids and terrorizing of innocent people continues.

Cato Unbound - Migrating Toward National ID?

The current Cato Unbound, Mexicans in America, is the usual provocative and wide-ranging fare.  There’s no lack of issues - or passion - in the debate about immigration.

One item in the current discussion that piques my interest - indeed, concerns me - is the formative consensus that “internal enforcement” of the immigration laws is a good idea. 

University of Texas at Austin economics professor Stephen Trejo writes:

Given that most illegal immigrants come to the United States to work, why don’t we get serious about workplace enforcement? Retail stores are able to verify in a matter of seconds consumer credit cards used to make purchases. Why couldn’t a similar system be put in place to verify the Social Security numbers of employees before they are hired? …  I suspect that we could do much more to control illegal immigration by directing technology and other enforcement resources toward the workplace rather than toward our porous southern border.

Doug Massey, co-director of the Mexican Migration Project at the Office of Population Research, Princeton University, has interesting information and ideas for reform to which he would adjoin ”a simple employment verification program required of all employers to confirm the right to work.”

It does sound simple - until you step back and realize that the simple idea they’re talking about is giving the federal government the power to approve or reject every Americans’ job application.  Does anyone think that this power, once adopted - and the technology put in place to administer it - will be limited to immigration law enforcement?

To do this, all people - not just immigrants, all people - would have to be able to prove their identity to federal standards, likely using some kind of bullet-proof identity document (even more secure than current law requires).  That will soon be in place thanks to the REAL ID Act.  Once we’re all carrying a bullet-proof identity document, do you think that its use will be limited to proof of identity for new employees?

It’s easy to see how facile acceptance of internal immigration law enforcement adds weight to arguments for expanded government control and tracking of all citizens.  There are plenty of reasons to be concerned with internal enforcement, and the national ID almost certainly required to make that possible.  Many of them are discussed in my book, Identity Crisis: How Identification is Overused and Misunderstood.