Was I too Rash on Juries and Nullification?

I made a certain statement (a status update, not a comment) on Facebook, and in retrospect maybe it would have been better to have made it more intelligible (okay, and less harsh as well). Now instead I must go through the statement line by line and clarify and defend it. I don’t know if it is good blogging etiquette or not to drag Facebook into it, but this started out as a clarification for the Facebook crowd and transformed into something to big to post there. We’ll see, I guess. Here is the statement I made:

Idiots (to speak kindly) who call others cowards for trying to get out of jury duty, thereby eliminating the less than 0.00001% chance that that person might have to actually “help their fellow man” are perhaps no less dull and collectivist-minded than the feverish nationalist buffoons who make similar statements about “serving” overseas. The purpose of today’s “defense” system is to murder innocents abroad. The purpose of today’s “justice” system is to incarcerate innocents at home. Any person who wants no part in this is not only not a coward, that person is a hero. Anyone who says otherwise should put their money where their big, loud mouths are. How brave and principled are you really, huh tough guy? Quit yer bitchin’ and show me! Get the hell off of Facebook and the comments sections of blogs and put your own life and livelihood on the line.

This all started when a Facebook friend (a very well-known person in certain circles, but I guess I won’t bring up his name) mentioned he had been “conscripted” for jury duty. This interested me at the time because it was just days after I had sent in my own paperwork for jury duty (this would be the second time, click here for my thoughts on the first). As is usually the case with this particular person’s statuses, the comments section was on fire. But the debate was at least a little more civil than the one that took place in the comments section of a blog post that someone linked to in this Facebook thread. It was an article by the estimable Douglas French of  Laissez-Faire Books and the Mises Institute recounting how he had gotten out of jury duty by telling the lawyers in the voir dire process, and later the judge, that, if made a juror, even if he thought the defendant guilty, he would not convict. That even if he was the only such person, he would hang the jury and nullify a bad law.

To my surprise he was accused in several comments of being a hypocrite and a coward because he chose not to perjure himself in order to get on the jury so that he might actually nullify, rather than do as he had done by merely telling off the judge and the attorneys. Sure, some of these commenters concocted clever ways whereby Mr. French could have (hindsight is 20/20) spoken ambiguously in order to get on the jury and then nullify without technically committing perjury but doing this would have required not only premeditation, but also that the person (in this case a humble economist) perfectly answer any objection brought up by the two (three, if you count the judge) cross-examining lawyers in the voir dire process. This would be like expecting the Oakland Raiders to beat the New York Yankees. In Yankee Stadium. Playing baseball. That’s nothing if not an “undue hardship.” Despite having this explained to them (on both the blog and on Facebook) there were those that persisted in their stupidity and their rudeness. Their argument at the end of it all amounted to, “so what, you’re still a coward.”

Now let me explain what I meant by my original statement, line by line:

Idiots (to speak kindly) who call others cowards for trying to get out of jury duty…

These specific people really are idiots in my estimation. Not because they think jury duty might be a good way to help your fellow man, but because they readily abuse others who don’t think it is all it’s cracked up to be, and because, even after the latter view point has been soundly defended, still won’t make room for the fact that other people might have more important obligations (or even trivial druthers) than being at some magistrate’s beck and call all week, pressured into agreeing with 11 other people on something that might be worth disagreeing on.

…thereby eliminating the less than 0.00001% chance that that person might have to actually “help their fellow man”…

I am referring here not to pronouncing a “not guilty” verdict on falsely or mistakenly accused innocents (which is why juries ever came about in the first place, I believe, and is a very admirable thing to do), but specifically to hanging a jury thereby nullifying bad law. In order to even get on a jury to do this you basically have to lie in voir dire, which is perjury. The 0.00001% may or may not be exaggerated, but you don’t exactly hear about jury nullification every day so I bet it’s not too far from the mark. If I had been talking about mere “not guilty” verdicts this would be way off. That number is probably more like 50%.

…are perhaps no less dull and collectivist-minded than the feverish nationalist buffoons…

These jury-shamers I am talking about appear to be primarily libertarians, a group of people who seem to pride themselves on being bright and individualist-minded, so comparing them to those they despise the most (basically various shades of Neoconservatism, but in a pinch, Democrats who think Obama deserved his Nobel Peace Prize will do nicely) is the ultimate dig.

…who make similar statements about “serving” overseas.

The kinds of statements I am referring to in my comparison of jury-shamers to Neocons/Obama-Peacers are analogous to jury nullification, not analogous to “not guilty” verdicts. So maybe I’m talking about a person who admits in some cases that innocent people die even in the United States’ wars, but for the most part it’s just the bad guys. And then maybe, as if that didn’t make them look foolish enough, they make some statement to the effect of, “You can disobey immoral/unethical orders without being accused of insubordination, then court-martialed and punished.”

Note that these immoral/unjust orders might still somehow be lawful, or that even if they are unlawful, there is still pressure from command and your peers to carry them out. But let’s not be coy: just because something is done by the book does not mean it is right or correct or even excusable. Having rules of engagement may be better than having no rules, but they are no substitute for not invading and occupying in the first place.

The purpose of today’s “defense” system is to murder innocents abroad.

Collateral damage is murder, so even if these wars are motivated by good intentions, that’s what’s going on. However, I don’t think we should give the same exact Powers That Be that we accuse of being malevolent at home the benefit of the doubt by assuming that they are somehow benevolent abroad.

The purpose of today’s “justice” system is to incarcerate innocents at home.

This is somewhat different than saying that the “defense” system’s purpose is to murder innocents abroad. While there may be collateral damage of sorts, that is not what I am talking about. Here, I am talking about bad law. You may be “guilty” of breaking the law, so in that sense the purpose of the “justice” system is to incarcerate the “guilty”, and not as I said, the innocent. But this assumes that the laws in question are all good.

That is quite an assumption to make about the government of the supposed freest nation on earth that happens to have the highest incarceration rates in the world. The elephant in the room here is the Drug War. Most of us can agree that drugs are generally bad news, and that the violence associated with drugs is even worse news, but far too few seem to realize that this is just the natural result of prohibition. Surprise! It didn’t work with alcohol, which, according to some metrics, is FAR MORE DANGEROUS than certain hard drugs, but somehow these people thought it was going to work with pot and heroin? In a post-1960s world?! What were they smoking?

Any person who wants no part in this is not only not a coward, that person is a hero.

Freedom of conscience. That’s all this is. Would we want to live in a world where people are led to believe that exercising this right somehow makes them spineless (again, we can all agree on something, that just having your conscience tell you something doesn’t make that something right)? Well then, just open your eyes. Look out the window. Turn on the TV (the only channel immune to this might be the Weather Channel). People with an actual conscience or actual principles are laughing stocks. They are the ultimate fools in the eyes of the world. And for that, yes, even the ones I disagree with, they have my respect.

Anyone who says otherwise should put their money where their big, loud mouths are.

Here I’m only applying the same standards to the accusers that the accusers are applying to the accused. Judge not, that ye be not judgedThou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eyeTherefore, all things whatsoever ye would that men should do to you, do ye even so to themPhysician, heal thyselfHe that is without sin among you, let him first cast a stone.

How brave and principled are you really, huh tough guy? Quit yer bitchin’ and show me! Get the hell off of Facebook and the comments sections of blogs…

Well, it sounded good at the time. But as a wise guy once told me, “vulgarity is no substitute for wit.”

…and put your own life and livelihood on the line.

In the case of “defense” and the military, especially in time of war, your life is on the line. No one disputes that. In the case of jury duty, especially when you perjure yourself in order to nullify bad law, it could very well be your livelihood that is threatened. But even where there is no perjury or nullification going on, there is still a case to be made that your livelihood is in danger.

I understand it is the situation in probably most states that your employer cannot fire you (and may even be made to remunerate you in some way) for taking time off for jury duty. Were it not for this law (which places burdens on employers that arguably shouldn’t be there), there’s at least the possibility that you would not be retained/paid for this “time off”, especially if your employer was not particularly fond of the unjust and immoral incursions of the government into everyday life. And why shouldn’t your employer be able to look out for his own best interests, even if it means firing your sorry behind? Does he “owe” you your job, indefinitely, no matter what? If it wasn’t for our crummy system and you were to be fired or lose pay because of jury duty, would your instinct really be to blame your employer? Not the people who conscripted you for jury duty in the first place? Or not the people who made life so miserable for some so-called criminal that you felt it was your duty to aid that person by nullifying the bad law he was being tried for breaking?

Additionally, since jury duty, unlike the military (these days at least) is something the state compels people to do (ultimately backing up their threats with actual guns, prisons, and larceny), telling these loud mouth accusers to put their livelihood on the line needn’t mean they have to serve on a jury (something they cannot do unless called upon). It could very well mean instead that they go out and agitate through means of civil disobedience: resisting arrest, harassing magistrates and LEOs, and so forth. Don’t act so surprised by these seemingly bizarre suggestions; we are talking about libertarians here, after all. And civil disobedience, though not quite so much as actual violent acts (only justified in self-defense, need I remind you?), can very well land you in the slammer and/or ruin your reputation as a good cog in the machine. If that doesn’t threaten your livelihood, I don’t know what does.

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5 thoughts on “Was I too Rash on Juries and Nullification?”

  1. Max Stirner has me covered on “perjury”

    “Now, let one imagine a French revolutionary in the year 1788, who among friends let fall the now well-known phrase, “the world will have no rest until the last king is hanged with the guts of the last priest.” The king then still had all power, and, when the utterance is betrayed by an accident, yet without its being possible to produce witnesses, confession is demanded from the accused. Is he to confess or not? If he denies, he lies and – remains unpunished; if he confesses, he is candid and – is beheaded. If truth is more than everything else to him, all right, let him die. Only a paltry poet could try to make a tragedy out of the end of his life; for what interest is there in seeing how a man succumbs from cowardice?

    But, if he had the courage not to be a slave of truth and sincerity, he would ask somewhat thus: Why need the judges know what I have spoken among friends? If I had wished them to know, I should have said it to them as I said it to my friends. I will not have them know it. They force themselves into my confidence without my having called them to it and made them my confidants; they will learn what I will keep secret. Come on then, you who wish to break my will by your will, and try your arts. You can torture me by the rack, you can threaten me with hell and eternal damnation, you can make me so nerveless that I swear a false oath, but the truth you shall not press out of me, for I will lie to you because I have given you no claim and no right to my sincerity.

    Let God, “who is truth,” look down ever so threateningly on me, let lying come ever so hard to me, I have nevertheless the courage of a lie; and, even if I were weary of my life, even if nothing appeared to me more welcome than your executioner’s sword, you nevertheless should not have the joy of finding in me a slave of truth, whom by your priestly arts you make a traitor to his will. When I spoke those treasonable words, I would not have had you know anything of them; I now retain the same will, and do not let myself be frightened by the curse of the lie.”

    1. That appears to be an instance where if you lie you remain unpunished and where you tell the truth you are punished. I am talking about an instance where this is reversed. The lie is punished and the truth is unpunished. I think an egoist like Stirner would agree that it is for each person to decide for himself and that the choice that makes the most sense is to do the one that best serves the person’s interests, which for most, presumably, is to avoid punishment (not to mention avoid being at the magistrate’s beck and call until the trial is over). I think it is acceptable to speak ambiguously (in order to avoid overt lying) in the voir dire process in order to leave yourself an out, but I don’t think most people would have an easy time at this.

  2. An excellent post. The attack on the institution of the jury has unnerved me ever since I read Tocqueville’s Democracy in America. I remembered seeing a flyer in the hall of the UC Davis law school a few years ago while I was on an archaeological dig (please don’t ask how I got into the building).

    The flyer was advertising a public forum headed by some left-wing law professors and federal judges. The topic of the forum was on the necessity of abolishing the institution of the jury. Given that I was in the middle of reading Tocqueville’s great work, and had recently read his analysis of the American jury, I was not surprised to find such an attack taking place in the halls of academia.

    What has somewhat surprised is the attacks upon this institution that I find coming from the Right, specifically the libertarian Right. I’ll get to why I think so in just a minute, but first, here is Tocqueville’s relevant passage:

    One must distinguish two things in a jury: a judicial institution and a political institution.

    If it were a question of knowing up to what point the jury, and above all the jury in a civil matter, serves the good administration of justice, I would admit that its utility could be contested.

    [...]

    My principle goal at this moment is to view the political side of the jury.

    [...]

    I understand by a jury a certain number of citizens taken at random and temporarily vested with the right to judge.

    To apply the jury to the suppression of crimes appears to me to introduce into the government an eminently republican institution. Let me explain myself.

    The institution can be aristocratic or democratic, according to the class from which the jurors are taken; but it always preserves a republican character, in that it places the real direction of society in the hands of the governed or in a portion of them, and not those who govern.

    Force is never anything but a transient element in success: immediately after it comes the idea of right. A government reduced to being able to reach its enemies only on the battlefield would soon be destroyed. The genuine sanction of political laws is therefore found in the penal laws, and if the sanction is lacking, the law sooner or later looses its force. Therefore, the man who judges the criminal is really the master of society. Now, the institution of the jury places the people themselves, or at least one class of citizens, on the judge’s bench. The institution of the jury, therefore, really puts the direction of society into the hands of the people or of this class.

    [...]

    All sovereigns who have wanted to draw the sources of their power from themselves, and to direct society instead of allowing themselves to be directed by it, have destroyed the institution of the jury or have enervated it.

    [...]

    The jury is before everything a political institution; one ought to consider it as a mode of the sovereignty of the people.

    This passage comes from pages 258-261 in the Mansfield and Winthrop edition of Democracy in America. There is much, much more in Tocqueville’s keen analysis, but I’ve already taken up too much space. He goes on to observe that the jury itself, aside from being a political institution that protects the people from would-be tyrants, acts as a sort of school for the otherwise uneducated.

    That is to say, the jury teaches citizens of a republic about the way the republic actually works. It is no wonder, then, that Leftist lawyers would want to see this institution destroyed. What bothers me, though, are the reasons put forth by libertarians for abolishing the jury.

    Can it really be that we, as libertarians, are against the jury because it is viewed it as a form of slavery? Or an inconvenience? These are the only reasons I can think of. Both reasons are horribly wrong, logically and morally. Are there any reasons I am missing?

    1. Thanks for the thoughtful and interesting comment, Brandon.

      I would much rather that there be a jury, even if people are inconvenienced or conscripted, than there be just one man, the state’s man no less, deciding who was guilty. Perhaps it can be an inconvenience that libertarians should be willing to put themselves through. But when it is more than just an inconvenience, but also means of attaching legitimacy to unjust laws, and yet another tool with which the common man can be directed against his will (even leaving aside the conscription aspect of it; for example, there is the threat of perjury as well as the social pressures of your fellow jurors and the magistrate, and while no good libertarian would cave to just the pressure, most people are not libertarians, let alone good ones), then should we start to contest it’s utility.

      I hinted above that I had to fill out paperwork for Jury Duty again recently. Unlike last time, though I still find the compulsion behind it reprehensible, I am somewhat looking forward to observing the process again, if for no other reason than to gain more understanding. I guess it would depend on what kind of case it was what I would do if the lawyers got around to me (they didn’t last time, I just sat there with 40 or 50 other people who weren’t ever called on, while 20 or so were eliminated and 12 picked).

Please keep it civil (unless it relates to Jacques)

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