Positive Liberty

Although I agree that the Drug War is immoral, unconstitutional, and unjustifiable in every way, I’m not so confident in my thoughts about jury nullification. It is obviously an important and legitimate part of the judicial system—I’m not sure what the point of having a jury system would be if jury nullification did not exist. That being said, we have to think about these things as realistically as possible.

First, for a juror to lie during voir dire (the “stealth approach”) is a crime, and one that not only threatens serious criminal penalties for the juror who does it, but threatens to undo any acquittal that results from the juror’s fulfillment of his own conscience. Second, it goes beyond an act of civil disobedience, and civil disobedience is dangerous to the individual and to society. And third, I think libertarians greatly exaggerate the potential effectiveness of such acts.

For a juror to lie to get on a jury so as to nullify the outcome is contempt of court. Clark v. United States, 289 U.S. 1, 10-11 (1933); People v. Kriho, 996 P.2d 158, 165 (Colo. App. 1999). (It’s also contempt for an attorney to urge a jury to engage in nullification. United States v. Renfroe, 634 F. Supp. 1536 (W.D. Pa. 1986)). Doing it can result in jail time. Moreover, such a lie would almost certainly be held to entitle the state to a mistrial, which would mean that the defendant would be tried again until a jury was found that did not include a person who had lied to the court. Cf. People v. Williams, 25 Cal.4th 441 (2001).

Now, jury nullification is an act of civil disobedience, so perhaps those who propose to lie to get on a jury to nullify aren’t bothered by its illegality. But there are two things to be kept in mind. First, civil disobedience, romanticized as it has been by the work of Martin Luther King and so forth, is very far from being an unambiguously good thing. Civil disobedience is intentional lawbreaking, and intentional lawbreaking really does have serious risks, particularly in that it encourages others to break the law as well when they consider those laws unjustified. King himself faced this problem when he found that his tactics had inspired the Black Panthers and others into violent lawbreaking in the name of “protest.” We may agree that the Drug War is a horror and ought to be stopped. But others feel very strongly about laws that you and I would consider absolutely imperative. The most obvious recent example of jury nullification is the O.J. Simpson trial. Open and brazen lawlessness in the jury box—the one place where the law ought to be most carefully weighed and respected—sets an extremely dangerous precedent.

But more important, when we talk about lying to get on a jury so as to nullify, we’re going beyond civil disobedience and into what is euphemistically called “direct action.” Civil disobedience is non-participation, in the Thoreauvian “refuse to pay taxes,” or Vietnam draft-dodger mode. But lying to get on a jury is active sabotage of the system; direct action; non-violent fragging, as it were. Nobody believes more than I do that there is a higher law to which our laws must conform, and to violate which is an injustice. But that is not the same thing as saying that we must engage in collateral illegal activities in order to challenge it. Refusing to participate is one thing. Choosing to participate in order to throw a wrench into the works is another.

Get me right—I am not saying that lawbreaking direct action is never justified. Sometimes the most violent and open violations of the law are warranted. Direct action is essentially a small-scale version of the right of revolution, a right people always retain. But revolutionary acts are justified or unjustified on the basis of certain criteria, and only in extremely rare and limited circumstances, in part because revolution is such an extraordinarily dangerous thing. Political society is an agreement among people to abide by certain fundamental principles. Among those principles is the non-arbitrary, equal application of laws. To directly attack such principle is not just the equivalent of taking your marbles and going home—which is bad enough, since that is the same as dissolving political society; to challenge the principle of non-artibrary, equal application of the law through intentionally lying to the court to get on a jury, is to compound subterfuges on the basis of a higher principle. Sometimes sabotage of this sort is justified—in war, for example, and here the rhetoric of the “Drug War” gives one pause. But although such acts might be justified in some very extreme cases, the consequences are such that it we should very, very carefully think about what we’re doing before we unleash such a potentially dangerous monster. That, essentially, is the entire teaching of the Declaration of Independence.

With all the dangers attendant upon it, I think it is wiser for libertarians to refuse to participate, at least at this point in the evolution of the Drug War, than to engage in an illegal and politically and personally dangerous act like lying during voir dire.

Third, I am very skeptical about the possible efficacy of jury nullification. To imagine, as some seem to do, that jury nullification is going to set up a roadblock to the Drug War, is absolutely visionary. And the potential dangers are, again, severe. As the California Supreme Court recently put it,

Encouraging a jury to nullify a law it finds unjust or to act as the “conscience of the community” by disregarding the court’s instructions may sound lofty, but such unchecked and unreviewable power can lead to verdicts based upon bigotry and racism. Jurors who do not feel bound to follow the law can act capriciously, to the detriment of the accused. In addition to refusing to follow laws they view as unjust, such jurors could choose to disregard instructions mandated by the Legislature not to read media accounts of the trial, not to discuss the case with others, or not to conduct their own investigation by visiting the crime scene. The jury might feel free to ignore the presumption of innocence or find the defendant guilty even though some jurors harbor a reasonable doubt. A jury might disregard an instruction not to draw an inference from the exercise of a privilege and assume the defendant must be guilty if he or she chooses not to testify. In a capital case, a juror could vote to impose the death penalty without considering mitigating evidence. Some jurors might decide not to view a defendant’s confession with caution or not require corroboration of the testimony of an accomplice. A jury even might determine that deliberations are too difficult and decide the defendant’s guilt by the flip of a coin.

Williams, 25 Cal.4th at 462.

Whether you think it’s worth it or not is one thing, but we must not disregard these warnings. They are correct. And the sad fact is that many if not most Americans still support the Drug War, as the result of a powerful and successful propaganda campaign by the government. Even if jury nullification were enthusiastically practiced by the Drug War’s opponents, the likelihood of it making a significant difference is, to me, pretty laughable. You know, we lovingly remember the work of abolitionists who worked on projects like the Underground Railroad, and we say that they did great things, and they did. But the effect of the Railroad on the actual system of slavery was negligible. In fact, the legend was vastly more important than the Railroad itself, and even then, the legend may, in the aggregate, have ended up hurt the existing slaves more. The same is true of people like William Lloyd Garrison. In hindsight, he looks like a great visionary who did great things, and we write lots of books about him. But in fact, his impact was almost entirely rhetorical. The real work of ending slavery was done by Frederick Douglass, Charles Sumner, William Seward, and Abraham Lincoln. The real work of ending the Drug War doesn’t lie in jury nullification, I’m afraid. It lies in convincing the people of this country of its injustice and unconstitutionality. That may, indeed, include many acts of civil disobedience and even, maybe, some direct action tactics. But for now, the best thing is probably education and activism in a legal, non-violent manner.

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