Let's start with a definition:
The rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
- Publicly promulgated
- Equally enforced (i.e., no person is above the law)
- Independently adjudicated
- And consistent with international human rights principles.
I was going to start this by asking what the Cato Institute and the Climate Defence Project have in common? Why Jury Nullification, of course. But the fact that these two groups that are fundamentally opposed, or should be, agree on this should bring someone to pause on this topic.
I don't have much hope for the US Constitution lasting much longer the way things are going.
But I digress to return to a concept which is well suited for the lynch mob than a society which claims to be based upon laws. The strongest argument against nullification points to the core principle of our judicial system: We are a nation of laws, not individuals. Elected officials create the law. They can be replaced with ones who legislate more in lines with popular opinion if they don't. Allowing juries to bypass this system has resulted in more miscarriages of justice than triumphs. In addition, we ask jurors to take an oath to judge based upon the facts; how is embracing nullification consistent with this promise?
Or as Mark Pulliam asks:
What do nineteenth-century anarchist Lysander Spooner,[1] the O. J. legal defense team, some elements of the militia movement,[2] the Los Angeles juries that failed to convict the Menendez brothers of murdering their parents and that acquitted the brutal assailants of Reginald Denny, and the activists who promote the idea of “fully informed juries”[3] have in common?
I would toss in lynch mobs for good measure. Emmett Till is an excellent example of jury nullification in action: two guilty men get away with murder and confess to it afterward.
Jurors are supposed to play an important but limited function: to sift through the evidence (especially conflicting testimony) and apply their factual findings to the relevant legal rules, which are determined elsewhere. Jurors are not lawmakers.
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| Jury nullification in practise: The Jury in the Emmett Till Case |
Bad things happen when juries step out of that limited role and decide to act as a “conscience of the community”, or some other bizarre concept of "Justice". In the Jim Crow South, all-white juries frequently acquitted defendants accused of lynching blacks and other heinous crimes, not because the evidence was weak, but out of sympathy for, or in solidarity with, the defendant. Conversely, in the O.J. Simpson case, the predominately African American jury arguably engaged in nullification in 1995 when it acquitted Simpson of murdering his ex-wife, Nicole, and her friend, Ron Goldman, despite what most observers felt was overwhelming evidence of Simpson’s guilt. More recently, many Americans were outraged when a San Francisco jury—possibly motivated by nullification—acquitted Kate Steinle’s killer. There are many other examples, such as .
After all, what is a jury acting outside of the law but a 12-person mob, modern-day vigilantes? The supporters of Luigi Mangione claim they want him to have a fair trial, yet they ignore that someone was killed without due process. They look up jury nullification in the hope that Mangione will be like Roy Bryant and J.W. Milam. They ignore the handwritten confession, which is more innocently called a "manifesto".
Civil disobedience is a grave misconception in the context of a seated juror refusing to follow the law. Civil disobedience is resistance to unjust government action as a last resort. That is when disobedience is the only alternative to becoming a participant in an objectionable act. This will never be the case with a seated juror. A potential juror who objected to service could refuse to report to court or serve on a jury. A person with a moral objection to enforcing a particular law (say, punishing a defendant charged with private drug use or blockading abortion clinics) should disclose that objection during voir dire and be excused from serving in the case.
But, after a juror has reported for service, been screened through voir dire, been seated and sworn to follow the law according to the instructions of the court, there is no room for “civil disobedience.” A juror reneging on his oath is acting outside the legal rules. A renegade juror cheats the parties to the case out of their right to have the matter decided according to the law, on the basis of which the evidence and arguments have been presented.
Although the "jury-power " activists point to historical events where juries refused to enforce laws that they considered unconscionable, there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily “nullify” the instructions by convicting a person who was technically innocent. Jury nullification strips the individuals who comprise society of their right to have the laws enforced. Nothing could be more tyrannical or despotic than the arbitrary decision of a juror, or jury that has refused to follow their legal obligation.
The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century’s pre-eminent theorist of libertarianism, the political philosophy of freedom, believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion. In Hayek’s words: “[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.” Thus, it is the universal, non-selective nature of law that allows us to be free. In Hayek’s view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case “that it can be said that laws and not men rule.”
A lawless juror is no more heroic than a rogue policeman violating the law or a politician accepting a bribe. If a juror (or any other member of the political community) feels that a particular law is unjust—and in a society as large and diverse as ours, we can assume that someone, somewhere, feels that every law on the books is unjust—the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.
Luigi Mangione and his supporters are dangerous to society, and counterproductive to the issue of health care reform. I wonder how much further we would be toward healthcare reform is they had used the system, rather than act as vigilantes. They should be working to change the law, not capriciously applying it.
Luigi Mangione will be tried based upon the evidence. I hope the jurors are willing to properly apply the facts to the law.
Otherwise, the US system of justice is best exemplified by the trial of Emmett Till's assassins.
See also:
Mark Pulliam, Nullifying the Rule of Law
__ ___, Jury Nullification, good or bad?
English text of the Déclaration des Droits de l'Homme et du Citoyen de 1789
