"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, August 21, 2012

Nullification Thoughts

Yeah, I understand the whole libertarian, government-is-the-enemy thing, so I'm not surprised they are happy that New Hampshire governor John Lynch has signed a law allowing for so-called "jury nullification."

The gist of the libertarian complaint is that currently, juries decide what the facts of a given case are, and "the jury must accept the law as explained to them by the judge, whatever their own view of that law might be."

In other words, juries, in this view, ought to be able to decide not only facts, but whether a state's law ought to apply to these facts.  The problem with this, in my view, is at least two-fold:  the first problem is informational; juries are uniquely unequipped to figure out what the law is without direction from the Court, much less to place the law into context with other related laws, and to discern reasons for the law that may not appear obvious on the hasty examination a jury could make.

 Second, the jury nullifcation is, contrary to libertarian claims, anti-democratic.  The jury is not the legislature.  The democratic complaint that a tyrannical government can only be checked by jury nullification ignores the more compelling point that it is precisely the people who enacted the laws in question through their representatives.  Essentially, nullification is the argument that twelve jurors (or really even one, if one wanted to hold out) can unilaterally overturn the legitimate legislative decisions of their fellow citizens.  

This anti-democratic element of nullification is what separates the contemporary nullification situation from the oft-repeated assertions of the libertarians that our founders supported nullification.  If they did, they did so in a different situation,  when the issue was trial of colonials under imperial laws in the enactment of which the colonies had no democratic part.

Sorry, but the fact that libertarians don't like drug laws or certain traffic laws, and cannot persuade their fellow citizens to change those laws in the accustomed manner, is not reason enough to turn the courtrooms into policy debating salons.  With the amount of obfuscation and hindrance in fact-finding that already exists in the criminal trial process (exclusionary rule, anyone?) it is difficult enough for juries to be fact finders.  Asking them to be lawmakers unto themselves is asking too much.

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