Man arrested for promoting jury nullification wins federal case(reason.com)
reason.com
Man arrested for promoting jury nullification wins federal case
https://reason.com/2022/08/05/he-was-arrested-for-promoting-jury-nullification-a-federal-court-says-that-was-illegal/
447 comments
CGP Grey has a video discussing jury nullification, for those interested in a further explanation of the subject: https://youtu.be/uqH_Y1TupoQ
Jury nullification is just one manifestation of good-ol'-boy-ism.
Good-ol'-boy-ism is a good thing when it let's the sheriff of Mayberry teach a kid a lesson without making him a felon and ruining his future.
Good-ol'-boyism is a horrible thing when it let's the sheriff of Mayberry teach a kid a lesson, making him a felon and ruining his future.
I have personally benefited from the former. I don't know how to reconcile the latter when the only difference was the kid's last name, or skin color, or religion. Every good thing can be abused. Sometimes the scale of abuse calls for the abolition of the "good thing". Sometimes it is better to tolerate some abuse because of the scale of good that comes from the good thing.
For me, this train of thought always breaks down to reasoning that good-ol'-boy-ism is good when the ol'-boys are good and bad when the ol'-boys are bad. But that's obviously broken when 'good' or 'bad' is left to the decision of the ol'-boys. Historically, we just have constant war to decide who gets to be the ol'-boys this week.
Good-ol'-boy-ism is a good thing when it let's the sheriff of Mayberry teach a kid a lesson without making him a felon and ruining his future.
Good-ol'-boyism is a horrible thing when it let's the sheriff of Mayberry teach a kid a lesson, making him a felon and ruining his future.
I have personally benefited from the former. I don't know how to reconcile the latter when the only difference was the kid's last name, or skin color, or religion. Every good thing can be abused. Sometimes the scale of abuse calls for the abolition of the "good thing". Sometimes it is better to tolerate some abuse because of the scale of good that comes from the good thing.
For me, this train of thought always breaks down to reasoning that good-ol'-boy-ism is good when the ol'-boys are good and bad when the ol'-boys are bad. But that's obviously broken when 'good' or 'bad' is left to the decision of the ol'-boys. Historically, we just have constant war to decide who gets to be the ol'-boys this week.
That said, if the good-ol'-boy-ism exists, wouldn't you prefer it exist in the hands of a group of disparate individuals chosen (mostly) at random?
I'd prefer that situation over it solely existing in the hands of a few police/judges/etc. with incredible power in deciding the future of the lives of those without power.
I'd prefer that situation over it solely existing in the hands of a few police/judges/etc. with incredible power in deciding the future of the lives of those without power.
Yeah, good-ol'-boy-ism can be present in any part of the justice system. There's no reason to believe it would be worse among the jury pool than, for instance, among prosecutors, judges and law enforcement.
This is certainly the rationale for forbidden discussion of the topic.
However, the first amendment is not to be tossed aside when inconvenient.
The act itself is not preventable without invading the sanctity of the jury room.
The scenario you present shows no relation to the concept of jury nullification presented here; unjust laws versus yours; untouchable persons. One is a protest of society, the other a protection of a group.
However, the first amendment is not to be tossed aside when inconvenient.
The act itself is not preventable without invading the sanctity of the jury room.
The scenario you present shows no relation to the concept of jury nullification presented here; unjust laws versus yours; untouchable persons. One is a protest of society, the other a protection of a group.
This is fairly insidious, like it's only the "good old boys" who do this. (Good Old Boy being coded language for white people)
https://wsvn.com/news/local/broward/foreperson-3-jurors-unwi...
You can find more examples. Jury nullification happens across the spectrum.
https://wsvn.com/news/local/broward/foreperson-3-jurors-unwi...
You can find more examples. Jury nullification happens across the spectrum.
It's why the war on drugs doesn't work. You either decriminalize or have a strict zero-tolerance policy like Singapore.
Otherwise, tons of poor people and minorities are arrested on drug charges, while suburban and rich people joke about doing coke and taking illegal prescription drugs.
Otherwise, tons of poor people and minorities are arrested on drug charges, while suburban and rich people joke about doing coke and taking illegal prescription drugs.
Why doesn't anyone think that ruining people's future regardless of age is a horrible solution to social problems?
Part of the problem is that there's so much policing of "social issues" that aren't what we traditionally see as crimes. Still even for people that are arguably pretty bad eg. street thugs, repeat DUI offenders, ect., I'm not sure of the wisdom of this policy... and that's not even considering small time first offenders (also ignoring our most serious crimes).
Part of the problem is that there's so much policing of "social issues" that aren't what we traditionally see as crimes. Still even for people that are arguably pretty bad eg. street thugs, repeat DUI offenders, ect., I'm not sure of the wisdom of this policy... and that's not even considering small time first offenders (also ignoring our most serious crimes).
>Why doesn't anyone think that ruining people's future regardless of age is a horrible solution to social problems?
I concur, I think ruining people's futures can be a horrible thing. Depending on the crime, I do think that what we see in some of Europe around "Right to be forgotten" for crimes is a good path forward.
I do not want to advocate for laws that firmly set someone onto a path of crime because of some youthful indiscretions, or, that forever treats a person as a pariah because of something that happened 30 years ago.
I concur, I think ruining people's futures can be a horrible thing. Depending on the crime, I do think that what we see in some of Europe around "Right to be forgotten" for crimes is a good path forward.
I do not want to advocate for laws that firmly set someone onto a path of crime because of some youthful indiscretions, or, that forever treats a person as a pariah because of something that happened 30 years ago.
Repeated DUI offenders should be charged with attempted murder every time they enter a vehicle
I don’t think the issue is with “good-ol’-boyism”
The root issue is that human beings are racist or otherwise prejudiced and that’s causing way more problems in many more areas
And prejudice is natural human behavior. Anyone can become prejudiced if they grow up in the right environment
But if all your friends are from all walks of life, you will naturally not be prejudiced. So all we need to do is make sure that we have even the right outreach programs so forces are diverse. When people in places of power are going to cookouts and all theirs buddies are all sorts of different people, all these stupid problems will literally disappear in a generation
The root issue is that human beings are racist or otherwise prejudiced and that’s causing way more problems in many more areas
And prejudice is natural human behavior. Anyone can become prejudiced if they grow up in the right environment
But if all your friends are from all walks of life, you will naturally not be prejudiced. So all we need to do is make sure that we have even the right outreach programs so forces are diverse. When people in places of power are going to cookouts and all theirs buddies are all sorts of different people, all these stupid problems will literally disappear in a generation
>But if all your friends are from all walks of life, you will naturally not be prejudiced.
I'd be careful jumping to the conclusion you did based on this premise because there are a lot of subtleties here. More generally this is known as the contact hypothesis (and related to the diversity exposure hypothesis) and there isn't that much evidence to justify the idea that exposure to multiple walks of life reduces prejudice and on the contrary there is evidence that the opposite is true.
While there is substantial evidence that people who do have friends from all walks of life are less prejudiced as you point out, that's mostly due to self-selection. People less prejudiced have less issue with befriending people from all walks of life, so we should not be surprised that they do so. However, concluding that all people need is to be exposed to diverse groups of people will reduce prejudice is unsupported by research and in fact to the extent that research exists on this, it actually points to the opposite conclusion. For example in situations where people are required to work or interact among different cultures, studies show unfortunately that those people have more negative attitudes towards that community than the general population. This phenomenon is known as negative intergroup contact:
https://journals.sagepub.com/doi/abs/10.1177/136843021876156...
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4457726/
I'd be careful jumping to the conclusion you did based on this premise because there are a lot of subtleties here. More generally this is known as the contact hypothesis (and related to the diversity exposure hypothesis) and there isn't that much evidence to justify the idea that exposure to multiple walks of life reduces prejudice and on the contrary there is evidence that the opposite is true.
While there is substantial evidence that people who do have friends from all walks of life are less prejudiced as you point out, that's mostly due to self-selection. People less prejudiced have less issue with befriending people from all walks of life, so we should not be surprised that they do so. However, concluding that all people need is to be exposed to diverse groups of people will reduce prejudice is unsupported by research and in fact to the extent that research exists on this, it actually points to the opposite conclusion. For example in situations where people are required to work or interact among different cultures, studies show unfortunately that those people have more negative attitudes towards that community than the general population. This phenomenon is known as negative intergroup contact:
https://journals.sagepub.com/doi/abs/10.1177/136843021876156...
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4457726/
[deleted]
Those studies are regarding people experiencing that effect later in life, no?
I’m not really expecting to fix older people. I’m an old dog now relatively and I don’t learn new tricks as well
I’m talking about people growing up together
I’m not really expecting to fix older people. I’m an old dog now relatively and I don’t learn new tricks as well
I’m talking about people growing up together
This is a straw man not addressing the article at all
Some quotations...
for me, the quote from Supreme Court justice Oliver Wendell Holmes is important: 'The jury has the power to bring a verdict in the teeth of both the law and the facts.'
https://www.jurorsrule.com/quotations-and-comments-on-fully-...
for me, the quote from Supreme Court justice Oliver Wendell Holmes is important: 'The jury has the power to bring a verdict in the teeth of both the law and the facts.'
https://www.jurorsrule.com/quotations-and-comments-on-fully-...
This really is the meat of the question.
Trials could be set up so that a jury is presented with specific questions of fact, and they must rule on those questions of fact. "The jury finds the defendant, Bob Bobson, did enter the house of Vick Victimson between the hours of 9PM and 11PM. The jury finds the defendant, Bob Bobson, did take Vick Victimson's property. The jury finds the defendant, Bob Bobson, did push Vick Victimson down the stairs, resulting in his death."
... but they do not. Juries decide on whether the entire crime occured. Guilt or innocence. Moreover, they aren't generally required to give reasoning for rendering their verdict, and only in cases where there is no rational train of thought possible to determine a crime was committed may a judge overrule a jury's finding on the issue of guilt. The full power of finding of fact of "Did any crime occur here" is in the hands of the jury.
I know of someone who sat jury on a case involving someone shooting into a home. Jury found the defendant guilty of reckless endangerment, but the interesting thing is that the jury's reasoning on the topic was that any discharge of a firearm in a city, by virtue of the denseness of the city's population, with no backstop and no planning on where the bullet would end up, should by default be reckless endangerment. I think one could easily find folks familiar with firearms who would disagree, but it doesn't matter. The jury has the power, in that case, to decide "common sense" dictates that's what the words "reckless endangerment" mean.
Trials could be set up so that a jury is presented with specific questions of fact, and they must rule on those questions of fact. "The jury finds the defendant, Bob Bobson, did enter the house of Vick Victimson between the hours of 9PM and 11PM. The jury finds the defendant, Bob Bobson, did take Vick Victimson's property. The jury finds the defendant, Bob Bobson, did push Vick Victimson down the stairs, resulting in his death."
... but they do not. Juries decide on whether the entire crime occured. Guilt or innocence. Moreover, they aren't generally required to give reasoning for rendering their verdict, and only in cases where there is no rational train of thought possible to determine a crime was committed may a judge overrule a jury's finding on the issue of guilt. The full power of finding of fact of "Did any crime occur here" is in the hands of the jury.
I know of someone who sat jury on a case involving someone shooting into a home. Jury found the defendant guilty of reckless endangerment, but the interesting thing is that the jury's reasoning on the topic was that any discharge of a firearm in a city, by virtue of the denseness of the city's population, with no backstop and no planning on where the bullet would end up, should by default be reckless endangerment. I think one could easily find folks familiar with firearms who would disagree, but it doesn't matter. The jury has the power, in that case, to decide "common sense" dictates that's what the words "reckless endangerment" mean.
The only quote from him that I know by heart:
"This is a court of law, young man, not a court of justice."
"This is a court of law, young man, not a court of justice."
That is a fantastic quote. I had to read up on it.
So, from my very limited understanding, the point is kinda like you have to pass the legal steps before you have a chance at getting justice. Rules of evidence, Miranda warnings, whatever.
I think it's sorta like you have to pass the compiler before you get a chance at a working program.
Now, I'm going to strain this analogy, what do you do when there's a bug in the compiler? Me personally I patch the fucking compiler, and then submit a PR. Maybe that PR gets accepted, maybe not. But the problem I have right now is fixed.
I would probably not be a good juror.
So, from my very limited understanding, the point is kinda like you have to pass the legal steps before you have a chance at getting justice. Rules of evidence, Miranda warnings, whatever.
I think it's sorta like you have to pass the compiler before you get a chance at a working program.
Now, I'm going to strain this analogy, what do you do when there's a bug in the compiler? Me personally I patch the fucking compiler, and then submit a PR. Maybe that PR gets accepted, maybe not. But the problem I have right now is fixed.
I would probably not be a good juror.
Patching the compiler means getting a law passed, not bypassing the legal system.
Ah, yeah. It's an analogy, and argument by analogy always fails, because the two things are different, and you can't really hide those differences.
I'd say getting your PR accepted is like passing the law. Locally hacking up the compiler to get this one stupid executable to work is like jury nullification.
Argument by analogy sucks, but hopefully this gets the spirit of what I'm trying to say across. I'm going to drop that analogy now.
Back to the original quote, everybody has to follow the laws. If we don't follow the laws, there is no hope for justice. Jurys rarely if ever have to explain what they were thinking, and the best a judge can do is declare a mistrial and start over. Sometimes the law is fucked up, or it shouldn't be applied in a specific circumstance. And a jury can do that. This is of course ripe for abuse, if my buddy is on the jury of my trial, maybe I don't get convicted - but there are a bunch of laws around jury selection so hopefully that doesn't happen to often.
I'd say getting your PR accepted is like passing the law. Locally hacking up the compiler to get this one stupid executable to work is like jury nullification.
Argument by analogy sucks, but hopefully this gets the spirit of what I'm trying to say across. I'm going to drop that analogy now.
Back to the original quote, everybody has to follow the laws. If we don't follow the laws, there is no hope for justice. Jurys rarely if ever have to explain what they were thinking, and the best a judge can do is declare a mistrial and start over. Sometimes the law is fucked up, or it shouldn't be applied in a specific circumstance. And a jury can do that. This is of course ripe for abuse, if my buddy is on the jury of my trial, maybe I don't get convicted - but there are a bunch of laws around jury selection so hopefully that doesn't happen to often.
Once you've patched the compiler, you can re-run your program through it.
Likely not possible to do the same for your legal case, and that assumes you can even get a law passed, which is highly doubtful.
So, while you can work around the compiler issue, you cannot really remedy the legal system for your case, which could be deleterious.
So, while you can work around the compiler issue, you cannot really remedy the legal system for your case, which could be deleterious.
Absolutely, it's more of an 'eventually consistent' system.
Your patching the compiler is basically jury nullification. Doing that though, creates a huge mess in terms of interpreting the overall effect on precedent. Should jury nullification occur, it is almost certain that in the long run, there will end up being legislative clarification or revisiting of what led to it.
Nullification, however, is the last bulwark against an overzealous State, and a powerful signal of no confidence. It's so destructive to the credibility of the system, it is one of the few things I can honestly say is only spoken of in hushed contexts, and with dread by many because of the unpleasant nature of the circumstances that warrant the existence of such a safeguard.
No one wants to believe a government could get so out of hand it has to get reined in in such a way. It can though. That's why it's important.
Nullification, however, is the last bulwark against an overzealous State, and a powerful signal of no confidence. It's so destructive to the credibility of the system, it is one of the few things I can honestly say is only spoken of in hushed contexts, and with dread by many because of the unpleasant nature of the circumstances that warrant the existence of such a safeguard.
No one wants to believe a government could get so out of hand it has to get reined in in such a way. It can though. That's why it's important.
Taking this analogy further. Jury nullification is like manually manipulating the database after the program keeps crashing out to make sure the customer gets what they need right now.
First time I hear this quote, and maybe I don't know the context, but as is, it's a pretty bad quote.
It implies that in that court, people care only about laws not justice. That may be so, but if that's the case, that's pretty sad, not something to be proud of.
It implies that in that court, people care only about laws not justice. That may be so, but if that's the case, that's pretty sad, not something to be proud of.
It reminds me Scalia’s infamous Troy Davis dissent[1]:
> This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
i.e., Actual innocence is constitutionally irrelevant.
[1]https://www.supremecourt.gov/opinions/08pdf/08-1443Scalia.pd...
> This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
i.e., Actual innocence is constitutionally irrelevant.
[1]https://www.supremecourt.gov/opinions/08pdf/08-1443Scalia.pd...
I think that’s fine, as is the court of law not court of justice line, in context. The court should be focused on the law and process to ensure that it is as fair and objective as possible. However perfect fairness and objectivity is not realistically possible. Where justice comes in is the jury room, and that’s why juries should be free to find whatever outcome they choose, as the representatives of the sovereign citizenry.
So if someone is convicted of a crime in a perfectly fair and objective process and we later find conclusive and indisputable evidence that they are, without a shadow of a doubt, completely and entirely innocent it’s perfectly acceptable that they be forced to serve their sentence? Including a death sentence? It’s perfectly acceptable that they have no right to appeal their conviction or sentence on a showing of actual innocence?
I think that’s very easy for some people to hand wave away as just “a cost of doing business” in a system of justice but is shockingly and appallingly costly for the people who are unfairly burdened with shouldering that “cost” for the rest of us.
I think that’s very easy for some people to hand wave away as just “a cost of doing business” in a system of justice but is shockingly and appallingly costly for the people who are unfairly burdened with shouldering that “cost” for the rest of us.
I believe that hundreds of definitely guilty people should go free to prevent one innocent person from going to prison.
Other people feel the opposite way, which is how you get the above statements.
Other people feel the opposite way, which is how you get the above statements.
My apologies, I didn’t make myself clear at all. I was commenting on the judges explanation of his legal powers and responsibilities. There should always be avenues of appeal available. The design of the system isn’t for judges to decide though, that belongs to legislators.
There’s a flaw in the system there, but not with the judge. He’s just explaining his duties according to the law. If you want the law changed, reasonably I think in this case, that’s a political matter not a judicial one.
There’s a flaw in the system there, but not with the judge. He’s just explaining his duties according to the law. If you want the law changed, reasonably I think in this case, that’s a political matter not a judicial one.
It's a description of the legal system as a whole. It does not pursue justice, it merely seeks to enforce the laws as written. And I think it's pretty clear that our laws do not seek justice. For, how can locking up a man - a man who has not yet reached his 20th birthday - for years on end in a concrete box for the "crime" of consuming a plant be just?
Justice is the job of the people. We vote, directly or indirectly, on the laws as written. And in the case of jury nullification can bypass the law completely.
A jury is also the people.
Representative democracy is, in my opinion, a significantly worse form of distilling the will of the people into applied justice.
If the task is deducing justice from the will of the people, I’d sooner pick a tiny random sampling of the population to make isolated decisions, than the votes of party-affiliated politicians on laws which cannot take into account individual circumstance.
Representative democracy is, in my opinion, a significantly worse form of distilling the will of the people into applied justice.
If the task is deducing justice from the will of the people, I’d sooner pick a tiny random sampling of the population to make isolated decisions, than the votes of party-affiliated politicians on laws which cannot take into account individual circumstance.
Justice is an ideal, Law is the compromise taking justice into account. Oftentimes justice may be blocked for the exact reason the parent comment outlies; you have good intentions but the long term ramifications are abused to bring anti-justice.
e.g. this is party why the death penalty is so unevenly implemented. Not because some or most people genuinely feel no crime is worth killing a criminal over. But because there are many issues over an irreversible sentence like death when the evidence isn't 100% ironclad.
e.g. this is party why the death penalty is so unevenly implemented. Not because some or most people genuinely feel no crime is worth killing a criminal over. But because there are many issues over an irreversible sentence like death when the evidence isn't 100% ironclad.
It certainly is, especially because without serving justice the law loses its raison d'être. But on the other hand there are reasons why members of the judiciary need to interpret the law to the letter. If the laws are wrong or unjust, legislative forces need to change them because it is their responsibility.
> If the laws are wrong or unjust, legislative forces need to change them because it is their responsibility.
That rarely happens because nearly everyone votes based on what politicians say rather than the substance of their policies.
The people always get the government they deserve.
That rarely happens because nearly everyone votes based on what politicians say rather than the substance of their policies.
The people always get the government they deserve.
Of course that is the ideal case. Part of the separation of powers that binds judges to the law and just laws should be passed by political bodies.
The only way for that to happen is people elect representatives reflecting the will of the people. If the people elect representatives that don't reflect the will of the people, they can hold their elected representatives accountable and vote for someone else in the next election cycle. But if people continue to re-elect officials that demonstrate not being aligned with their constituents, the people only have themselves to blame. It really is that simple.
A terrible, self serving quote, given that it was spoken by a supreme judge.
It was always a court of men, justice Holmes, not law.
It was always a court of men, justice Holmes, not law.
But laws can be unjust. I think the quote is simply accurate.
My point is, it isn't. Laws don't enforce themselves. It's always people enforcing them - or not. That is, however reluctantly, acknowledged when it's jury nullification.
But judges get to stretch and squeeze laws all the time, all the way from nullification to the most unhinged overreach. And unlike juries, they get to pretend they didn't. And in an SC judge's case, it takes a constitutional crisis to overrule them.
It's personal power on an unbelievable level, yet this guy pretends it's not him? That it's instead some abstract intangible force? Seriously, what a terrible person.
But judges get to stretch and squeeze laws all the time, all the way from nullification to the most unhinged overreach. And unlike juries, they get to pretend they didn't. And in an SC judge's case, it takes a constitutional crisis to overrule them.
It's personal power on an unbelievable level, yet this guy pretends it's not him? That it's instead some abstract intangible force? Seriously, what a terrible person.
Some people would say that when a judge has to "stretch and squeeze" a law it's a failing of the lawmaking process.
And if elected lawmakers produce a clear and unambiguous law with a manifestly unjust outcome, to get that fixed society should turn to lawmakers rather than judges.
And if elected lawmakers produce a clear and unambiguous law with a manifestly unjust outcome, to get that fixed society should turn to lawmakers rather than judges.
What do you mean, "has to"? The point is that judges have discretion. They might, or they might not. They don't have to do very much, even when on the wrong side of both elected politicians and justice.
And sure, in an ideal world things would get fixed in the legislative branch. But can you blame anyone for going where so much of actual power is?
And sure, in an ideal world things would get fixed in the legislative branch. But can you blame anyone for going where so much of actual power is?
> What do you mean, "has to"? The point is that judges have discretion.
Well, the justice system has a number of types of discretion:
(1) Determining facts. Two first-hand accounts disagree, which do we find most believable?
(2) Discretion granted by lawmakers. This person has been found guilty of X and the law calls for a prison sentence of 3 to 15 years depending on the facts of the case, how long should the sentence be?
(3) Discretion in how to interpret the words of the law. For example, if a farmer grows wheat to feed to his own livestock, and it isn't sold and doesn't cross state lines, is that still "interstate commerce" because otherwise the farmer might have brought feed on on the national market?
You're never going to remove (1) or (2) from the legal system, of course. But some people would say (3) is a question of politics which should be resolved through the political system - not through the justice system.
Well, the justice system has a number of types of discretion:
(1) Determining facts. Two first-hand accounts disagree, which do we find most believable?
(2) Discretion granted by lawmakers. This person has been found guilty of X and the law calls for a prison sentence of 3 to 15 years depending on the facts of the case, how long should the sentence be?
(3) Discretion in how to interpret the words of the law. For example, if a farmer grows wheat to feed to his own livestock, and it isn't sold and doesn't cross state lines, is that still "interstate commerce" because otherwise the farmer might have brought feed on on the national market?
You're never going to remove (1) or (2) from the legal system, of course. But some people would say (3) is a question of politics which should be resolved through the political system - not through the justice system.
I think you touch with (3) on the awesome and terrible power of a prosecutor, who execute the law.
It brings up related two latin phrases and one in spanish
de minimis non curat lex / de minimis non curat praetor [1]
De los asuntos intrascendentes no se ocupa el magistrado
On one side we could have the "hanging prosecutor" and the other extreme, a Chesa Boudin refusing to bring cases forward.
Selecting prosecutors with the wisdom to know where the harsh application of the law is needed, and where electing not to bring forward a case is essential, or, a diversion to a non-criminal path is a must.
Discretion & wisdom are essential.
[1] https://en.wikipedia.org/wiki/De_minimis
It brings up related two latin phrases and one in spanish
de minimis non curat lex / de minimis non curat praetor [1]
De los asuntos intrascendentes no se ocupa el magistrado
On one side we could have the "hanging prosecutor" and the other extreme, a Chesa Boudin refusing to bring cases forward.
Selecting prosecutors with the wisdom to know where the harsh application of the law is needed, and where electing not to bring forward a case is essential, or, a diversion to a non-criminal path is a must.
Discretion & wisdom are essential.
[1] https://en.wikipedia.org/wiki/De_minimis
> Some people would say that when a judge has to "stretch and squeeze" a law it's a failing of the lawmaking process.
Or they first arrive conclusion/decision they want for a particular case or topic, and then rationalize their decision (perhaps ignoring precedent) when they write their brief.
Or they first arrive conclusion/decision they want for a particular case or topic, and then rationalize their decision (perhaps ignoring precedent) when they write their brief.
I think personally "Justice" is relative.. Where as the law, while it can be interpenetrated differently and this brings up discussions, its 'quantity' is not relative.
So I imagine some victims for example may not feel that a minor fine/warning is 'Justice' they can't argue that it was decided by the law ?
So I imagine some victims for example may not feel that a minor fine/warning is 'Justice' they can't argue that it was decided by the law ?
That is not their role in the system. Sure, they CAN squeeze and stretch laws, but that is tolerated, not part of the design.
The application of law to promote justice is the role of the prosecutor - and that is the part that is most frequently broken.
The application of law to promote justice is the role of the prosecutor - and that is the part that is most frequently broken.
I don't know. I can plausibly read it (knowing nothing about the man) as self-deprecating. A realisation that he's bound by what the law says, even if _he_ finds it unjust.
For example, if a jury finds a defendant guilty of some crime, because they really did it (let's say Aladdin stole some bread from the supermarket and it's clear beyond reasonable doubt that he did indeed), and the law dictates that the _minimum_ penalty is 10 years, then a judge is bound. It does not matter one iota that both the jury and the judge feels this punishment is excessive bordering on ridiculous; in that sense, it is 'a court of law' and not 'a court of justice'. It's not self-serving, it's self-denigrating: Awareness that the judge/jury can't just decide together how to proceed.
That's what jury nullification is about: If a jury member realizes the judge is going to be forced to give a to them utterly ridiculous sentence if the jury finds the defendant guilty, you can simply decide to find them not guilty even though you are well convinced beyond reasonable doubt that they are. Now they are meting out justice and flaunting the law. The jury can actually get away with this (as this news article again shows); a judge absolutely wouldn't be able to.
NB: Current SCOTUS seems to just do whatever the heck they feel like, flaunting all plausible readings of a given law, deference to expertise, and precedence (e.g. how modern SCOTUS opinions often write that Stare Decisis is meaningless – saying that it matters "unless it was wrongly decided" is a euphemism for "it does not matter", of course). So specifically modern day SCOTUS? They seem to think they are beyond the law. It also shows how I really, really don't think you _want_ a court to think itself a court of justice, meeting out excessive punishments because they feel that is just, and letting defendants clearly guilty of egregious acts go free or nearly so for some imagined reason. It also means that any clash with the law has utterly unpredictable consequences. By definition, minimum and maximum penalties clash with the notion that a court is 'a court of justice' instead of 'a court of law'.
For example, if a jury finds a defendant guilty of some crime, because they really did it (let's say Aladdin stole some bread from the supermarket and it's clear beyond reasonable doubt that he did indeed), and the law dictates that the _minimum_ penalty is 10 years, then a judge is bound. It does not matter one iota that both the jury and the judge feels this punishment is excessive bordering on ridiculous; in that sense, it is 'a court of law' and not 'a court of justice'. It's not self-serving, it's self-denigrating: Awareness that the judge/jury can't just decide together how to proceed.
That's what jury nullification is about: If a jury member realizes the judge is going to be forced to give a to them utterly ridiculous sentence if the jury finds the defendant guilty, you can simply decide to find them not guilty even though you are well convinced beyond reasonable doubt that they are. Now they are meting out justice and flaunting the law. The jury can actually get away with this (as this news article again shows); a judge absolutely wouldn't be able to.
NB: Current SCOTUS seems to just do whatever the heck they feel like, flaunting all plausible readings of a given law, deference to expertise, and precedence (e.g. how modern SCOTUS opinions often write that Stare Decisis is meaningless – saying that it matters "unless it was wrongly decided" is a euphemism for "it does not matter", of course). So specifically modern day SCOTUS? They seem to think they are beyond the law. It also shows how I really, really don't think you _want_ a court to think itself a court of justice, meeting out excessive punishments because they feel that is just, and letting defendants clearly guilty of egregious acts go free or nearly so for some imagined reason. It also means that any clash with the law has utterly unpredictable consequences. By definition, minimum and maximum penalties clash with the notion that a court is 'a court of justice' instead of 'a court of law'.
Yes. Even his attempt to be frank, he's obscuring the truth.
Then why is the man referred to as Justice Holmes, not Law Holmes?
Wow! I have been saying for a while now that in the US at least the judicial system had no relationship with justice or reason. The false pretense of impartiality and apolitical decision making leads most to believe otherwise.
It’s the job of the legislature to fix the laws and make them aligned with your idea of justice.
Doesn't matter, judges have no obligatons to be just or fair. They just have to interpret the written law and precedent law as well as legislate themselves by way of precedent. Justice means to correct wrong and make it right. The law is written such that judges can apply their interpretation of it with no obligation towards reason or implied rights and wrongs by the legislature.
Take asset forfeiture for example, there is no law that permits it explicitly but there are laws about property rights,due process and privacy. By precedent and in ignorance of what common sense tells a reasonable person "this is unfair" they steal property from people without due process.
The legislature can't even stop companies from being treated as persons which any sane person will tell you is unreasonable or illogical.
It is all merely theatrics to veil implementations of hidden agendas and ulterior motives.
Take asset forfeiture for example, there is no law that permits it explicitly but there are laws about property rights,due process and privacy. By precedent and in ignorance of what common sense tells a reasonable person "this is unfair" they steal property from people without due process.
The legislature can't even stop companies from being treated as persons which any sane person will tell you is unreasonable or illogical.
It is all merely theatrics to veil implementations of hidden agendas and ulterior motives.
> Doesn't matter, judges have no obligatons to be just or fair.
Yeah, they are.
https://www.law.cornell.edu/uscode/text/28/453
> The legislature can't even stop companies from being treated as persons which any sane person will tell you is unreasonable or illogical.
I've never gotten why people are so opposed to the idea of corporations being treated as unnatural persons for certain purposes.
Companies are owned and operated by people with rights, so some of those rights transfer to the company. But, the owners agree to have some of their rights qualified when acting through a corporation in exchange for enjoying limited liability.
For instance, imagine you own a house under your own name. The government can't build a stadium on top of it without just compensation. Why should it be any different if you happened to have purchased that house through a corporation?
Corporations were a relatively recent invention in the context of the common law and treating them as qualified unnatural persons allowed them to integrate into the legal system without creating an entire parallel system. As a developer, I find it a pretty cute retrofit to the model.
Yeah, they are.
https://www.law.cornell.edu/uscode/text/28/453
> The legislature can't even stop companies from being treated as persons which any sane person will tell you is unreasonable or illogical.
I've never gotten why people are so opposed to the idea of corporations being treated as unnatural persons for certain purposes.
Companies are owned and operated by people with rights, so some of those rights transfer to the company. But, the owners agree to have some of their rights qualified when acting through a corporation in exchange for enjoying limited liability.
For instance, imagine you own a house under your own name. The government can't build a stadium on top of it without just compensation. Why should it be any different if you happened to have purchased that house through a corporation?
Corporations were a relatively recent invention in the context of the common law and treating them as qualified unnatural persons allowed them to integrate into the legal system without creating an entire parallel system. As a developer, I find it a pretty cute retrofit to the model.
> I've never gotten why people are so opposed to the idea of corporations being treated as unnatural persons for certain purposes.
When people talk about corporate personhood, they're almost certainly talking about Citizens United v. FEC which allows corporations to make unlimited donations to politicians because it's 'free speech' - a decision that opens the door to unchecked bribery.
They oppose this because they don't want their politicians to accept bribes.
When people talk about corporate personhood, they're almost certainly talking about Citizens United v. FEC which allows corporations to make unlimited donations to politicians because it's 'free speech' - a decision that opens the door to unchecked bribery.
They oppose this because they don't want their politicians to accept bribes.
>Why should it be any different if you happened to have purchased that house through a corporation?
A corporation can't be homeless, so I'm fine with them being treated differently when the bulldozer comes to knock their house down.
A corporation can't be homeless, so I'm fine with them being treated differently when the bulldozer comes to knock their house down.
For the first part, that is an oath, may I ask if any judge has ever been prosecuted for being just and this breaking the law? Which law?
For the second, it is not a question of opposition. It is not reasonable or logical no matter the mental gymnasics and legal bullshit you legalists try to apply to it (you are so deep in legality you have forgotten reason). There is no such thing as an unnatural person. A corporation is an entity with specific defintions. The reason behind this mental gymnastics is precisely what you noted: rights. But if you follow logic and reason companies have absolutley no rights whatsoever, only obligations and privileges that allow them to participate in commerce. However, stipulatig that somehow they are partially persons because people operate them and they derive those people's rights allows them to argue against their obligations because of inerited rights. This is what I meant by a veil of theatrics to acheive your underlying goal.
Under a government of the people,for the people and by the people, the people's understand of what could reasonably be considered a person trumps every other argument. A reasonable person would not consider walmart or cpac a person or to have rights of a person because people operate it. Companies were around long before the USA was a country and this stipulation was never made before because it is hilariously illogical.
If you want corporations to have specific privileges, legislate that as such, meaning unlike rights they are not irrevocable by the government and contingent on the fulfillment of their obligations.
Take a billboard paid for by a company for example, the company has no rights to free speech. However the individuals that run it can run the billboard as individuals on behalf of the company, accepting responsibility as individuals under law (typically the CEO would).
> Why should it be any different if you happened to have purchased that house through a corporation?
It is different because you chose to make it different and relinquished any rights of ownership as an individual. You now should pay corporate taxes and nullification of your incorporation means the government gets your house. If you don't like that, buy it as a person. Thank you for bringing this up, do you know about the home ownership, housing price and homeless catastrophe that is unflolding? This is the cause. Corporations are buying houses left and right and taking advantage of home owner rights to do so. A city should be able to ban corporate owned housing but since they are persons that is impossible unless done at the federal level and even then it must pass a supreme court challenge. As a result corporations enjoy personhood rights more than most americans.
When you forgot reason, you tolerated corruption at the foundation of the whole system.
For the second, it is not a question of opposition. It is not reasonable or logical no matter the mental gymnasics and legal bullshit you legalists try to apply to it (you are so deep in legality you have forgotten reason). There is no such thing as an unnatural person. A corporation is an entity with specific defintions. The reason behind this mental gymnastics is precisely what you noted: rights. But if you follow logic and reason companies have absolutley no rights whatsoever, only obligations and privileges that allow them to participate in commerce. However, stipulatig that somehow they are partially persons because people operate them and they derive those people's rights allows them to argue against their obligations because of inerited rights. This is what I meant by a veil of theatrics to acheive your underlying goal.
Under a government of the people,for the people and by the people, the people's understand of what could reasonably be considered a person trumps every other argument. A reasonable person would not consider walmart or cpac a person or to have rights of a person because people operate it. Companies were around long before the USA was a country and this stipulation was never made before because it is hilariously illogical.
If you want corporations to have specific privileges, legislate that as such, meaning unlike rights they are not irrevocable by the government and contingent on the fulfillment of their obligations.
Take a billboard paid for by a company for example, the company has no rights to free speech. However the individuals that run it can run the billboard as individuals on behalf of the company, accepting responsibility as individuals under law (typically the CEO would).
> Why should it be any different if you happened to have purchased that house through a corporation?
It is different because you chose to make it different and relinquished any rights of ownership as an individual. You now should pay corporate taxes and nullification of your incorporation means the government gets your house. If you don't like that, buy it as a person. Thank you for bringing this up, do you know about the home ownership, housing price and homeless catastrophe that is unflolding? This is the cause. Corporations are buying houses left and right and taking advantage of home owner rights to do so. A city should be able to ban corporate owned housing but since they are persons that is impossible unless done at the federal level and even then it must pass a supreme court challenge. As a result corporations enjoy personhood rights more than most americans.
When you forgot reason, you tolerated corruption at the foundation of the whole system.
While true, then there is an argument to be made about getting rid of precedents, not an ideal scenario given how ineffectual the legislative branch is.
Reason is the foundation of the application of law. It is absolutely taught and practiced in the judicial system. You can see it measured in every judicial review process.
Justice is much more subjective and is the domain of prosecutors and the executive branch.
Justice is much more subjective and is the domain of prosecutors and the executive branch.
You are talking about schools and ideals not reality.
The checks and balances that prevent the judicial system from abandoning reason and justice have failed and as a result it is very partial and political with interpretations of the law according to opinion superseding common and reasonable understanding of justice. A person may have subjective views on justice, sure but what I am saying is even that is not being applied. A judge will not disregard an attempt to interpret law unjustly (e.g.:asset forfeiture) or attempt to give a reason as to why it is unjust, simply that the law is valid and implied injustice is correct (that is to say, the judge will not consider an interpretation law because that would imply the legislature had unjust intent according to subjective understanding). Reason is supposed to be a corner stone of the system but where public liars and corrupt people are made judges the result is what you have now.
I am sure there are many in the profession that genuinely pursue justice and apply reason over whatever bullshit they can convince each other but their minority voice is drowned out it seems.
The checks and balances that prevent the judicial system from abandoning reason and justice have failed and as a result it is very partial and political with interpretations of the law according to opinion superseding common and reasonable understanding of justice. A person may have subjective views on justice, sure but what I am saying is even that is not being applied. A judge will not disregard an attempt to interpret law unjustly (e.g.:asset forfeiture) or attempt to give a reason as to why it is unjust, simply that the law is valid and implied injustice is correct (that is to say, the judge will not consider an interpretation law because that would imply the legislature had unjust intent according to subjective understanding). Reason is supposed to be a corner stone of the system but where public liars and corrupt people are made judges the result is what you have now.
I am sure there are many in the profession that genuinely pursue justice and apply reason over whatever bullshit they can convince each other but their minority voice is drowned out it seems.
You are conflating the judicial system with enforcement authorities.
Judges very often do reject charges and procedures brought to them by the enforcement authorities. This separation of power is evident if you ever sit in on proceedings (many courts allow and encourage the public to sit and watch).
Enforcement authority is executive branch and answerable to the elected officials. If you don't like asset forfeiture - ask the mayor why he allows it. You may discover that your fellow residents don't agree with you.
Judicial review panels are what judges endure in their tenure where panels of judges review how frequently their rulings are overturned in appeal. The rationale of their rulings are disputed and their tenure as a judge can be removed if they're found to intentionally skirt the law by their peers.
This is how the system works. Do you have specific suggestions to make it better, or are you just advocating we burn everything down?
Judges very often do reject charges and procedures brought to them by the enforcement authorities. This separation of power is evident if you ever sit in on proceedings (many courts allow and encourage the public to sit and watch).
Enforcement authority is executive branch and answerable to the elected officials. If you don't like asset forfeiture - ask the mayor why he allows it. You may discover that your fellow residents don't agree with you.
Judicial review panels are what judges endure in their tenure where panels of judges review how frequently their rulings are overturned in appeal. The rationale of their rulings are disputed and their tenure as a judge can be removed if they're found to intentionally skirt the law by their peers.
This is how the system works. Do you have specific suggestions to make it better, or are you just advocating we burn everything down?
Indeed, the Adversarial system includes some 'preconditions' that don't really hold in the real world, alas.
Of course there are lots of other systemic issues with the US 'justice' system, but I also think the foundation is fundamentally flawed.
Of course there are lots of other systemic issues with the US 'justice' system, but I also think the foundation is fundamentally flawed.
Any legalist country is like that.
Is jury nullification the ultimate trump card? From what little I know about it, it seems that if enough people in a community knew about it, they could 100% control what crimes are punished in that community. On face value, that makes a sort of sense intuitively, but obviously it has to be balanced against crimes that are in principle clearly wrong, despite what a local community believes.
Cops, prosecutors, DAs, judges, mayors and governors all have varying authority to "control what crimes are punished", in addition to who gets punished and the severity of that punishment. In that context, it doesn't seem so strange for juries to have some authority too. All this latitude among different actors in the justice system just shows how having an incredibly vast number of "crimes" on the books guarantees loopholes and widespread abuse.
Making everything illegal and then selectively enforcing it means that there is no Rule of Law.
There is no alternative to selective enforcement, nor has there ever been.
How about we start with not making stuff illegal that we don't want to enforce?
Necessary but not sufficient.
Weed is a category B drug in the UK: https://en.wikipedia.org/wiki/Cannabis_in_the_United_Kingdom
This means "with penalties for unlicenced dealing, unlicenced production and unlicenced trafficking of up to 14 years in prison, an unlimited fine, or both. The maximum penalty for possession of cannabis is five years in prison and an unlimited fine."
The police absolutely try to enforce this: "In the survey-year ending March 2014, possession of cannabis offences accounted for 67% of all police recorded drug offences in the UK."
Despite this, "In 2017, 7.2% of 16 to 59-year-olds reported using cannabis in the last year, making it the most commonly used illegal drug in the United Kingdom."
If this law, all by itself, was perfectly enforced, the UK would bankrupt itself just on the extra spending in the prison system.
Weed is a category B drug in the UK: https://en.wikipedia.org/wiki/Cannabis_in_the_United_Kingdom
This means "with penalties for unlicenced dealing, unlicenced production and unlicenced trafficking of up to 14 years in prison, an unlimited fine, or both. The maximum penalty for possession of cannabis is five years in prison and an unlimited fine."
The police absolutely try to enforce this: "In the survey-year ending March 2014, possession of cannabis offences accounted for 67% of all police recorded drug offences in the UK."
Despite this, "In 2017, 7.2% of 16 to 59-year-olds reported using cannabis in the last year, making it the most commonly used illegal drug in the United Kingdom."
If this law, all by itself, was perfectly enforced, the UK would bankrupt itself just on the extra spending in the prison system.
> If this law, all by itself, was perfectly enforced, the UK would bankrupt itself just on the extra spending in the prison system.
That conclusion ignores the interdependence of those effects. If people knew that it's going to be perfectly enforced, then almost nobody would do it anymore.
(Not that I'm a proponent of this particular law; just pointing out a flaw in your argument. Somebody wrong on the internet -- gotta reply!)
That conclusion ignores the interdependence of those effects. If people knew that it's going to be perfectly enforced, then almost nobody would do it anymore.
(Not that I'm a proponent of this particular law; just pointing out a flaw in your argument. Somebody wrong on the internet -- gotta reply!)
So that shouldn't be a law then, the argument goes.
I think it shouldn't be a law partly for that reason, but it's definitely an example of needing to go further than just repealing the laws nobody can be bothered to enforce.
But society wants selective enforcement.
Speeding laws are good when the stop that guy from endangering my kids. Or when they generate revenue from tourists.
Those same laws are awful when they inconvenience me.
Speeding laws are good when the stop that guy from endangering my kids. Or when they generate revenue from tourists.
Those same laws are awful when they inconvenience me.
Maybe I'm just being contrarian to your comment, but I've always thought the US and other countries are silly for not automating basic traffic enforcement.
Red light cameras should effectively catch 95%+ of people who blow through them. Speeding cameras (that are actually on, looking at you NYC) that are super visible are a known deterrent to speeding in Europe. Even parking - in some modern garages they have sensors to tell you when spots are full/empty. Why can't they use similar tech for parking tickets, street cleaning, etc?
I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions. Then, introducing human elements where the cop gets to decide who to ticket adds a bunch of bias that we haven't been able to correct. It's one of the countless examples of humans over-complicating things to the point of dysfunction.
Red light cameras should effectively catch 95%+ of people who blow through them. Speeding cameras (that are actually on, looking at you NYC) that are super visible are a known deterrent to speeding in Europe. Even parking - in some modern garages they have sensors to tell you when spots are full/empty. Why can't they use similar tech for parking tickets, street cleaning, etc?
I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions. Then, introducing human elements where the cop gets to decide who to ticket adds a bunch of bias that we haven't been able to correct. It's one of the countless examples of humans over-complicating things to the point of dysfunction.
A lot of places in the US have tried out automated speed traps and red light cameras. Some still use them AFAIK.
But what's common is that infractions are so widespread that there's a massive backlash and the programs get cancelled. There was an automatic speed trap on the interstate just south of Pittsburgh a few months ago, set up along side some temporary construction with reduced speed limits. A few weeks later there was a headline that it had generated so many tens of thousands of tickets that they were considering it an error and throwing out the tickets.
But what's common is that infractions are so widespread that there's a massive backlash and the programs get cancelled. There was an automatic speed trap on the interstate just south of Pittsburgh a few months ago, set up along side some temporary construction with reduced speed limits. A few weeks later there was a headline that it had generated so many tens of thousands of tickets that they were considering it an error and throwing out the tickets.
Not to mention they also cause accidents. People who see a red-light camera flash often hit the brakes, causing people behind them to rear-end them. There were a number of red-light cameras removed in the U.S. once it became clear they were snarling traffic on a weekly basis because of that.
The people do not support lawmakers who pass laws they do not want. Making traffic enforcement automatic would only be supported by the most strict law-abiding drivers, which is probably a minority. Your elected officials will not create laws that would cause you to vote them out of office. So, we don't have those laws, because we don't want them.
> I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions.
Yep, this is absolutely what happens. Very hard to get people to self-sacrifice and cooperate if there isn't enough momentum.
One of my favorite things to do on 55mph PA highways near Philly is to go the speed limit. All other drivers on that road are going 75-85mph. They treat you like a terrible person for going the speed limit. But eventually one person slows down behind you, then another, and after about 45 minutes, there's a line of cars going the speed limit, while people zooming by wonder if they should slow down.
> I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions.
Yep, this is absolutely what happens. Very hard to get people to self-sacrifice and cooperate if there isn't enough momentum.
One of my favorite things to do on 55mph PA highways near Philly is to go the speed limit. All other drivers on that road are going 75-85mph. They treat you like a terrible person for going the speed limit. But eventually one person slows down behind you, then another, and after about 45 minutes, there's a line of cars going the speed limit, while people zooming by wonder if they should slow down.
As someone who used to drive heavy equipment that topped out around 60mph on flat ground I agree with the other drivers. You are a terrible person. If you used your rear view mirrors you would see that there's a constant cluster fuck of people cutting each other off trying to get out from behind you. This creates a bunch of unnecessary danger. And for what? So you can get some cheap virtue points from internet authoritarians with a justice boner? To say it boggles the mind that you think your behavior is defensible let along brag worthy is an understatement. I hope you cross paths with someone predisposed to violent road rage so that two dangerous people may be removed from the road without any innocent people being harmed.
Drive the same speed as the other traffic or take the bus. It's safer for everyone that way.
Drive the same speed as the other traffic or take the bus. It's safer for everyone that way.
I heartily disagree with this take and your swearing doesn't help your point at all. Drive the speed limit, it's the law.
For basic traffic enforcement, you're right. However, poor implementation in the US has led to withdrawal of systems in some cities. I'll have to dig up details, but I recall a red-light system that was implemented as a revenue-share with the company contracted to build/maintain the system. That company set the timing of the camera such that it had many false-positives (it was basically triggering on yellow instead of red, IIRC). System was eventually shut down, but people are now rightfully wary of similar systems.
But, my comment wasn't meant to imply traffic is the only place this happens, it was just an easy example. We see the same with (building) code enforcement at all levels from HOA to city/town/county. We see excess policing/enforcement (to the point of infringing on individual rights) in certain neighborhoods and with certain ethnic groups (stop and frisk in NYC, for example).
But, my comment wasn't meant to imply traffic is the only place this happens, it was just an easy example. We see the same with (building) code enforcement at all levels from HOA to city/town/county. We see excess policing/enforcement (to the point of infringing on individual rights) in certain neighborhoods and with certain ethnic groups (stop and frisk in NYC, for example).
We absolutely could do that. I don't know how US driving license work, but in the UK a speeding ticket gets you 3 penalty points on your license, where 12 points in 3 years gets you disqualified from driving: https://www.gov.uk/speeding-penalties
On this basis, the only people who would be allowed to drive a month after perfect enforcement starts, would be people who don't drive (plus the Queen because monarchy).
(Outside the hypothetical, the imperfection of the UK's speed cameras is such that the only ticket I've received was for an event that happened six months after I sold the car).
On this basis, the only people who would be allowed to drive a month after perfect enforcement starts, would be people who don't drive (plus the Queen because monarchy).
(Outside the hypothetical, the imperfection of the UK's speed cameras is such that the only ticket I've received was for an event that happened six months after I sold the car).
I've always though the points per unit time measurement system is dumb. Maybe points per 10k miles or something instead. Bill who gets into a wreck and drives like a bat out of hell the 3 times of the year he manages to break out of his schizophrenia disorder enough to drive could get only 9 points, or 3 points on every occasion he drives. Whereas the responsible driver who drives non-stop racking up 100,000 miles in a year and accidently driving through just 4 bad speed-trap towns by accident could end up with 12 points despite being far safer.
IMO the points system is as much about punishing people who depend on driving a lot as much as it is about punishing unsafe drivers.
IMO the points system is as much about punishing people who depend on driving a lot as much as it is about punishing unsafe drivers.
Generally, our licenses use similar points systems, but the actual implementation varies at the state level. 1-2 big speeding tickets (reckless driving, which can also be criminal) could be enough for a temporary suspension, but usually you'd need several in a row.
Red light cameras are added along with shortening the yellow lights. More ticket revenue harvested, and more rear-ending from stopping more quickly when the light turned yellow.
It's the same reason we veered away from using the metric system at the gas pump: changing things went along with outright gouging. Too many venal actors in the American system.
It's the same reason we veered away from using the metric system at the gas pump: changing things went along with outright gouging. Too many venal actors in the American system.
I think one of our greatest failures as a species is that we have yet to architect a society in which these sorts of double standards of personal belief have sufficient consequences to prevent people from engaging in them with the fervor and frequency that they do.
I think one of our greatest failures as a species is the hubris of _thinking_ that we can "architect a society"
The organization of society is not outside our control. We've been architecting society for 1000s of years based on what has worked and what hasn't in years past. We aren't just along for the ride although that is a convenient excuse to do nothing and make no effort.
I wasn't necessarily suggesting to "do nothing and make no effort" - That's a strawman and false dichotomy. Sure, we can generally try to do more of what works and less of what doesn't. But usually the type of people who want to "architect society" end up being the worst type of "rules for thee but not for me" tyrants.
I think the Founding Fathers of the U.S. 'architected society' reasonably well in the 1770-1800 period?
Tip-of-the-hat to our founders, for sure! But I'd say they were architecting a government, not a society. That's a very important distinction, and without it you can end up with some really destructive Statist/Authoritarian stuff.
Regarding those first 25 years or so: Jefferson's attempt to ban slavery in 1784 failed by 1 vote. Then there was the Whiskey Rebellion in 1791 and then the Alien and Sedition Acts of 1798. So, nothing's perfect I guess...
Regarding those first 25 years or so: Jefferson's attempt to ban slavery in 1784 failed by 1 vote. Then there was the Whiskey Rebellion in 1791 and then the Alien and Sedition Acts of 1798. So, nothing's perfect I guess...
Welcome to America!
In fact, juries are the only "citizens" (ie "them") in the authorities you note.
Note that a jury of your peers is rarely available. Instead, it's whoever didn't get out of jury service as weeded by competitive interests of the DA and defense. That might make a difference too.
Note that a jury of your peers is rarely available. Instead, it's whoever didn't get out of jury service as weeded by competitive interests of the DA and defense. That might make a difference too.
They could, for instance, prevent for most of a century most prosecutions for lynching.
I used to think of this as an utter failure of the system, but lingering on this for a while: if the vast majority of citizens (= people who can meaningfully participate in the society) thinks lynching is a good thing, the jury nullification is only a step behind making lynching OK in the books for that group.
Of course there could be upper laws blocking them from making it an official stance, but it really feels like fighting a reality with theorical boundaries.
The issue is not the abuse of a system hack, and probably more around changing people's mind (which can take centuries and get reversed in a few years...)
Of course there could be upper laws blocking them from making it an official stance, but it really feels like fighting a reality with theorical boundaries.
The issue is not the abuse of a system hack, and probably more around changing people's mind (which can take centuries and get reversed in a few years...)
One must also remember that what people privately are willing to vote for (which in practice, probably means voting for a fringe alternative pro-lynching party, because nationwide parties have to appeal to anti-lynching constituencies too) is not the same thing as what they're willing to do when sat with 11 other local people being reminded that the whole town will learn which way they voted and some of the townsfolk are really, really aggressively pro-lynching...
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The issue is that the American people are so far gone, and even more so back in the day, that allowing to process to work results in the persecution of people. This has been proven time and time again.
The process as we imagine it simply can't work under these conditions. The people are too deranged, and like misbehaving children, need to be contained.
The process as we imagine it simply can't work under these conditions. The people are too deranged, and like misbehaving children, need to be contained.
I mean, if "the vast majority of citizens thinks something is a good thing", shouldn't it be legal in the first place? Because democracy.
> if "the vast majority of citizens thinks something is a good thing", shouldn't it be legal in the first place? Because democracy
Sort of. It’s tyranny of the majority [1].
The meaning of democracy has changed over millennia. Classically, democracy encompasses “freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights” [2]. Each of these involves constraining majoritarianism. Unfortunately, in modern use, this balance has been lost, with the term democracy becoming more and more interchangeable with direct democracy, a system that predictably fails.
So classically, no, jury nullification of lynching is a failure of several fundamental democratic principles. But in a modern sense, yes, it’s the will of the majority of a certain set of people.
[1] https://en.m.wikipedia.org/wiki/Tyranny_of_the_majority
[2] https://en.m.wikipedia.org/wiki/Democracy
Sort of. It’s tyranny of the majority [1].
The meaning of democracy has changed over millennia. Classically, democracy encompasses “freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights” [2]. Each of these involves constraining majoritarianism. Unfortunately, in modern use, this balance has been lost, with the term democracy becoming more and more interchangeable with direct democracy, a system that predictably fails.
So classically, no, jury nullification of lynching is a failure of several fundamental democratic principles. But in a modern sense, yes, it’s the will of the majority of a certain set of people.
[1] https://en.m.wikipedia.org/wiki/Tyranny_of_the_majority
[2] https://en.m.wikipedia.org/wiki/Democracy
Traditionally, democracy meant 'all Athenian male unenslaved citizens meet up every now and then to decide by majority whom to banish from the city' -> the exact reason why democracy was a dirty word for classical political philosophers, like Plato: tyranny of the masses was built in from the start.
What you describe was an "age of enlightenment"-style idealised version of democracy that lived for a short time before it was being killed again, bit by bit.
And that direct democracy thing ... it works for the Swiss, and many would argue the problem today is not too much democracy, but too little, and it becoming ever-smaller.
What you describe was an "age of enlightenment"-style idealised version of democracy that lived for a short time before it was being killed again, bit by bit.
And that direct democracy thing ... it works for the Swiss, and many would argue the problem today is not too much democracy, but too little, and it becoming ever-smaller.
Democracy was discussed deeply and implanted varyingly after Athens fell. And even then, concepts of free and equal speech were tied to the concept.
> that direct democracy thing ... it works for the Swiss
We don’t have direct democracy. Our initiative and amendment processes have a referendum component, but it’s tightly moderated by the legislature and requires supermajorities to override it. And to the degree it's being discussed, it's with respect to reforming it so political parties can't bypass the parliament.
> that direct democracy thing ... it works for the Swiss
We don’t have direct democracy. Our initiative and amendment processes have a referendum component, but it’s tightly moderated by the legislature and requires supermajorities to override it. And to the degree it's being discussed, it's with respect to reforming it so political parties can't bypass the parliament.
I tried not to become too technical, given the original claim was that direct democracy does not ever work. You are, of course, right: You have a representative parliamentary system with strong direct democratic elements, which currently is in danger of being destroyed by more conservative elements in your parliamentary system. Given that traditionally Switzerland used these mandates wisely, I hope the fascistoid elements in your government will not be able to go through with that plan.
The problem is direct democracy is everyone needs to show up at the same time. It is impossible to do this for any modern community of more than 100 people and even going that large is only possible if you limit who has a vote to [white adult males] or some such subgroup that allows someone else (women and children in this example) to take care of everything else that can't be ignored while in the meeting. Once you get larger than that someone has a conflict and they won't be able to show up, and now they have no input.
Direct democracy does not necessitate a 100% participation rate.
It traditionally only means "the electorate decides on topics directly, not with representatives who are not bound in their decisions to their mandate". Again, see Switzerland, which works just fine with direct democratic elections with groups ranging from a few hundred voters on a market square to millions of electors in the country as a whole.
It traditionally only means "the electorate decides on topics directly, not with representatives who are not bound in their decisions to their mandate". Again, see Switzerland, which works just fine with direct democratic elections with groups ranging from a few hundred voters on a market square to millions of electors in the country as a whole.
If you have less than 100% participation though there is risk that the needs of those who cannot participate (here referring those who would like to, as oppose to those who wouldn't even) are overridden by those who do.
Jury nullification isn't just an evil jury frustrating the heroic pursuit of truth and justice for the land.
It's also a jury looking at a fellow citizen getting hung out to dry by a crooked/ambitious DA and law enforcement entity, or shifty looking DEA agent and saying "Enough is enough. This is overreach, dirty, and wrong, and every last one of you knows it."
Nothing is a given about how our system works. Justice and politics are constantly evolving things. Each process serving as inputs to the others.
We try to create a world of predictable consequences. We try to minimize the number of places surprising things can pop up from. However, deep down, we bear forward the history of abuses by systems past, which is why we maintain these safety valves, even if they are infrequently used, lest our vigilance wane that they need to be used again.
It's why jury duty is the most important damn responsibility in the country.
It's also a jury looking at a fellow citizen getting hung out to dry by a crooked/ambitious DA and law enforcement entity, or shifty looking DEA agent and saying "Enough is enough. This is overreach, dirty, and wrong, and every last one of you knows it."
Nothing is a given about how our system works. Justice and politics are constantly evolving things. Each process serving as inputs to the others.
We try to create a world of predictable consequences. We try to minimize the number of places surprising things can pop up from. However, deep down, we bear forward the history of abuses by systems past, which is why we maintain these safety valves, even if they are infrequently used, lest our vigilance wane that they need to be used again.
It's why jury duty is the most important damn responsibility in the country.
FWIW, I don’t think the meaning has been lost; I think the squeaky wheel people on social media have forgotten the meaning when they fail about “the US isn’t a democracy because we have a Senate/electoral process/etc” but I think that’s a pretty narrow slice of people and I think it’s more ignorance than a changed meaning. In my experience, most people seem to agree that representative democracies are also democracies (indeed, even the ignorant people would usually admit that most European countries are democracies despite having a similar bicameral system to the US).
> a system that predictably fails.
There are practical and logistical problems of course, but there is no evidence of it actually failing. An educated population can decide to defer decisions and a majority probably would. At least the societies ready for it.
I think parliamentary democracy becomes more interchangeable with technocracies with certain groups carefully gate keeping for their in-group. This would fail at least as predictably.
There are practical and logistical problems of course, but there is no evidence of it actually failing. An educated population can decide to defer decisions and a majority probably would. At least the societies ready for it.
I think parliamentary democracy becomes more interchangeable with technocracies with certain groups carefully gate keeping for their in-group. This would fail at least as predictably.
True but that works better when the lynchees get to vote with the same ease as the lynchers.
Even if they can vote equally, there's no guarantee that minority populations will have the numbers to protect themselves from the tyranny of the majority.
We haven't even gotten to the "equal access to voting" part here in the States yet, so we have a long long road before we get to the "voting is a good tool for minorities to protect themselves" phase.
We haven't even gotten to the "equal access to voting" part here in the States yet, so we have a long long road before we get to the "voting is a good tool for minorities to protect themselves" phase.
The population of blacks in south was pretty large tho. In some states they had majority. The violence was to keep them away from power.
That’s the argument advocates of direct democracy generally support, but no actual democratic systems fully implement direct democracy. In practice what we generally have is representative democracy, where we delegate the power to make laws, and make and implement policy to representatives.
Those representatives have personal moral responsibility for the laws and decisions they make and are sovereign individuals in their own right, as is any citizen. There’s an argument (I think a strong one) that having been elected they have a right to make laws or rule according to their own beliefs and conscience, within the limits of the law. They’re not just the compliant meat puppets of “the people”.
Of course there are examples of direct democracy, in the form of referendums on specific issues, and these highlight many of the problems with direct democracy. You end up with votes raising spending, alongside votes cutting taxes, with a side order of votes banning government borrowing. You get situations like Switzerland voting to align with the EU along with its free movement provisions, then a referendum mandating ending free movement (but not any other aspects of the treaty), then a referendum confirming maintaining the EU treaty. Take Brexit, what does it mean? Hard Brexit, soft Brexit, there are infinite different possible variations. Which one did the British public intend? Well, different members of the public intended different things, who gets to choose? What happens when the public vote for one thing but most elected people in government responsible for implementing it think it’s a bad idea?
The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
Those representatives have personal moral responsibility for the laws and decisions they make and are sovereign individuals in their own right, as is any citizen. There’s an argument (I think a strong one) that having been elected they have a right to make laws or rule according to their own beliefs and conscience, within the limits of the law. They’re not just the compliant meat puppets of “the people”.
Of course there are examples of direct democracy, in the form of referendums on specific issues, and these highlight many of the problems with direct democracy. You end up with votes raising spending, alongside votes cutting taxes, with a side order of votes banning government borrowing. You get situations like Switzerland voting to align with the EU along with its free movement provisions, then a referendum mandating ending free movement (but not any other aspects of the treaty), then a referendum confirming maintaining the EU treaty. Take Brexit, what does it mean? Hard Brexit, soft Brexit, there are infinite different possible variations. Which one did the British public intend? Well, different members of the public intended different things, who gets to choose? What happens when the public vote for one thing but most elected people in government responsible for implementing it think it’s a bad idea?
The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
> That’s the argument advocates of direct democracy generally support, but no actual democratic systems fully implement direct democracy.
To be fair, Switzerland comes very close. The public can pass initiatives or constitutional amendments without government intervention through public votes, and the few Swiss people I know consider this to be the primary political system in Switzerland (not the representative electoral system they have, though they also have a very interesting mechanism for their President which requires cross-party agreement for any government decision).
Saying "no system fully implements direct democracy" feels like a no-true-scotsman stance, since by the same token no system fully implements representative democracy either (AFAIK no country guarantees that there is a precise percentage match of party representation to the popular vote with no lower bound on how many votes a party needs to enter, as it would be unworkable to have such a system).
> The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
The flip side is that in representative democracies (especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world) you are very limited in your choices of leader and thus sentiments which are popular with the public can be completely ignored. There is no mechanism to force a public initiative that has legal weight, so you have to hope that a major party will be in favour of your pet issue and they can convince other bureaucrats to support something that is popular.
I would not say that I'm a proponent of direct democracy but I don't think having some public initiative system would be a bad thing. But if we are going to keep representative democracies with the argument that the leaders represent the people but have some expertise (though cynical people would argue that is not the case anyway) then you cannot have broken electoral systems because their political power is no longer morally justified. But of course, no party that gets in power would likely ever change the entire electoral system since they have a strong political incentive to not do so (and with representative democracies, election promises aren't worth the paper they're written on).
To be fair, Switzerland comes very close. The public can pass initiatives or constitutional amendments without government intervention through public votes, and the few Swiss people I know consider this to be the primary political system in Switzerland (not the representative electoral system they have, though they also have a very interesting mechanism for their President which requires cross-party agreement for any government decision).
Saying "no system fully implements direct democracy" feels like a no-true-scotsman stance, since by the same token no system fully implements representative democracy either (AFAIK no country guarantees that there is a precise percentage match of party representation to the popular vote with no lower bound on how many votes a party needs to enter, as it would be unworkable to have such a system).
> The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
The flip side is that in representative democracies (especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world) you are very limited in your choices of leader and thus sentiments which are popular with the public can be completely ignored. There is no mechanism to force a public initiative that has legal weight, so you have to hope that a major party will be in favour of your pet issue and they can convince other bureaucrats to support something that is popular.
I would not say that I'm a proponent of direct democracy but I don't think having some public initiative system would be a bad thing. But if we are going to keep representative democracies with the argument that the leaders represent the people but have some expertise (though cynical people would argue that is not the case anyway) then you cannot have broken electoral systems because their political power is no longer morally justified. But of course, no party that gets in power would likely ever change the entire electoral system since they have a strong political incentive to not do so (and with representative democracies, election promises aren't worth the paper they're written on).
The classic representative democracy suffers from a problem that it promotes a-holes to power. Because they have no scrupules to lie and cheat they have to get and hold power. And this explain the fact that the percentage of a-holes in political elites is way bigger then in rest of populations. (btw this specific problem could be easily solved by replacing elections by some form of lottery)
What is relatively unknown about Swiss democracy is that on the referendums on national level are extremely rare, but a possibility of a referendum looms like a Damocles sword over political elites and prevent them from abusing their legislative power.
> The flip side is that in representative democracies (especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world) you are very limited in your choices of leader and thus sentiments which are popular with the public can be completely ignored. There is no mechanism to force a public initiative that has legal weight, so you have to hope that a major party will be in favour of your pet issue and they can convince other bureaucrats to support something that is popular.
Please don't lump the extremely broken US political system with the slightly less broken British and former colonies (Canada, Australia, NZ, etc.) and even less so with the rest of democratic countries around the world which is usually using representative systems. Furthermore, some countries have explicit constitutional schemes where a petition with enough signatures needs to be voted on in parliament or even called in as a referendum.
Please don't lump the extremely broken US political system with the slightly less broken British and former colonies (Canada, Australia, NZ, etc.) and even less so with the rest of democratic countries around the world which is usually using representative systems. Furthermore, some countries have explicit constitutional schemes where a petition with enough signatures needs to be voted on in parliament or even called in as a referendum.
> Please don't lump the extremely broken US political system with the slightly less broken British and former colonies (Canada, Australia, NZ, etc.) and even less so with the rest of democratic countries around the world which is usually using representative systems.
I live in Australia. Any system which uses winner-takes-all-electorates is structurally unrepresentative. The party list systems in Germany and New Zealand get closer but have other flaws (enshrining of party politics, no preferential voting) and so on. Even a hypothetical Condorcet system with only one house and no local electorates then has the flipped issue that there is no local accountability. A multi-seat preferential electoral system (which is what I'd advocate for) has a threshold issue where you have to decide at which point a particular percentage of the vote is too low to no longer deserve representation. Any system requires tradeoffs and as we all know from the Arrow Theorem (and the Alabama Paradox) there isn't even such a thing as a perfect voting system, so why would we expect to have a perfect electoral system?
My point was not that these are not acceptable systems (though some are better than others), just that if we're going to start talking about how no-true-scotsman perfect systems, it's not reasonable to ignore that the status quo also has a very similar (and in many cases wider) departure from the theoretical state it should be.
And as a non-American, I really dislike this tendency many non-American people have to say "at least it's not as bad in the States!" -- this just breeds complacency as everyone cares more about what's happening to the political system in a foreign country rather than their own. We should all be working to improve things wherever we are, instead of just pointing and laughing at the US.
Also it's not fair to lump New Zealand with Australia, nor Australia with Canada. They all have completely different electoral systems -- so much so that there's literally no reason to group them in any serious discussion.
I live in Australia. Any system which uses winner-takes-all-electorates is structurally unrepresentative. The party list systems in Germany and New Zealand get closer but have other flaws (enshrining of party politics, no preferential voting) and so on. Even a hypothetical Condorcet system with only one house and no local electorates then has the flipped issue that there is no local accountability. A multi-seat preferential electoral system (which is what I'd advocate for) has a threshold issue where you have to decide at which point a particular percentage of the vote is too low to no longer deserve representation. Any system requires tradeoffs and as we all know from the Arrow Theorem (and the Alabama Paradox) there isn't even such a thing as a perfect voting system, so why would we expect to have a perfect electoral system?
My point was not that these are not acceptable systems (though some are better than others), just that if we're going to start talking about how no-true-scotsman perfect systems, it's not reasonable to ignore that the status quo also has a very similar (and in many cases wider) departure from the theoretical state it should be.
And as a non-American, I really dislike this tendency many non-American people have to say "at least it's not as bad in the States!" -- this just breeds complacency as everyone cares more about what's happening to the political system in a foreign country rather than their own. We should all be working to improve things wherever we are, instead of just pointing and laughing at the US.
Also it's not fair to lump New Zealand with Australia, nor Australia with Canada. They all have completely different electoral systems -- so much so that there's literally no reason to group them in any serious discussion.
>especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world.
There are many flavours of representative democracy. It depend what is being represented. In the British system that’s constituencies. In proportional systems, that’s political parties. Neither are particularly more or less inherently legitimate IMHO.
Ultimately whether a democracy and its system is legitimate rests on a consensus of the consent of the people to that system. I think would clearly ludicrous to argue that the British people do not consent to their system of government.
There are many flavours of representative democracy. It depend what is being represented. In the British system that’s constituencies. In proportional systems, that’s political parties. Neither are particularly more or less inherently legitimate IMHO.
Ultimately whether a democracy and its system is legitimate rests on a consensus of the consent of the people to that system. I think would clearly ludicrous to argue that the British people do not consent to their system of government.
> There are many flavours of representative democracy. It depend what is being represented. In the British system that’s constituencies. In proportional systems, that’s political parties. Neither are particularly more or less inherently legitimate IMHO.
I would consider 10% of a country voting for a party as first preference but less than 0.7% of parliament seats (by which I mean a single seat) being allocated to them (as was the case in Australia until the last election where it's still around 2% representation) to be unrepresentative by any reasonable definition of the word. Whether you feel that the voting system in your country needs to be purely representative in order to be legitimate is a philosophical question and whether you feel that an unrepresentative system is legitimate is a separate discussion.
Whether you think parties should be entrenched or not (I'm not particularly fond of the idea), it is literally not representing the public votes. This is because Australia has winner-takes-all electorates and. You can have electorate systems that don't have one-seat electorates. Winner-takes-all electorates lead to this problem.
> I think would clearly ludicrous to argue that the British people do not consent to their system of government.
I would think it to be naive to argue that every election is a referendum on the fundamental system of government in the country where no party is running on such a platform and there are many factors making it essentially untenable to even attempt to have a third party push the issue.
I suspect few British people would say their government is illegitimate but I also suspect very few would say "I have a continuing and active choice in the fundamental way political power is structured in my country, above voting for individual political parties."
I would consider 10% of a country voting for a party as first preference but less than 0.7% of parliament seats (by which I mean a single seat) being allocated to them (as was the case in Australia until the last election where it's still around 2% representation) to be unrepresentative by any reasonable definition of the word. Whether you feel that the voting system in your country needs to be purely representative in order to be legitimate is a philosophical question and whether you feel that an unrepresentative system is legitimate is a separate discussion.
Whether you think parties should be entrenched or not (I'm not particularly fond of the idea), it is literally not representing the public votes. This is because Australia has winner-takes-all electorates and. You can have electorate systems that don't have one-seat electorates. Winner-takes-all electorates lead to this problem.
> I think would clearly ludicrous to argue that the British people do not consent to their system of government.
I would think it to be naive to argue that every election is a referendum on the fundamental system of government in the country where no party is running on such a platform and there are many factors making it essentially untenable to even attempt to have a third party push the issue.
I suspect few British people would say their government is illegitimate but I also suspect very few would say "I have a continuing and active choice in the fundamental way political power is structured in my country, above voting for individual political parties."
That’s only unrepresentative if you privilege parties over constituencies. There’s an argument for that but it’s not a given. I detest party lists though, it’s a terrible idea to suborn elected representatives to a party bureaucracy. Elected representatives should be ultimately answerable to the electorate.
I don’t think it’s fair to phrase it that way, I’m terms of choice. Democracy doesn’t give individuals a choice in how they are governed, it grants them a vote. That’s not the same thing. Also I don’t think it’s reasonable to have the structure of political power up fir continuous change. There should be mechanisms fir change, sure, but in most cases that should be over fairly long time frames with plenty of brakes in the process.
The reason is that changing power structures is extremely dangerous. Once you fall into a peer structure that’s vulnerable to abuse by a clique or even worse an individual, you can easily get trapped in it permanently. In a constantly changing system up for frequent revision it seems like that would eventually be inevitable.
I don’t think it’s fair to phrase it that way, I’m terms of choice. Democracy doesn’t give individuals a choice in how they are governed, it grants them a vote. That’s not the same thing. Also I don’t think it’s reasonable to have the structure of political power up fir continuous change. There should be mechanisms fir change, sure, but in most cases that should be over fairly long time frames with plenty of brakes in the process.
The reason is that changing power structures is extremely dangerous. Once you fall into a peer structure that’s vulnerable to abuse by a clique or even worse an individual, you can easily get trapped in it permanently. In a constantly changing system up for frequent revision it seems like that would eventually be inevitable.
> That’s only unrepresentative if you privilege parties over constituencies. There’s an argument for that but it’s not a given.
How would multi-seat electorates privilege parties over constituencies? It would literally mean more representation of different views in on electorate.
How would multi-seat electorates privilege parties over constituencies? It would literally mean more representation of different views in on electorate.
> I would consider 10% of a country voting for a party as first preference but less than 0.7% of parliament seats (by which I mean a single seat) being allocated to them (as was the case in Australia until the last election where it's still around 2% representation) to be unrepresentative by any reasonable definition of the word.
Is this is a consistent outcome or an anomaly?
Is this is a consistent outcome or an anomaly?
It is a consistent outcome, the recent election is an anomaly. The explanation for why this is the case is a bit complicated but the crux is that only one candidate can win in each seat and while we have preferential voting, the preferences only matter in each race -- and if you aren't in the top two on first preferences then you won't win that seat (nor any other seat where that is the case). It would be easily possible for them to have 0% representation, it just so happens that the Greens party leader's electorate is incredibly pro-Green and so he gets ~47% of the first preference vote, which is unusually high and makes him win the seat easily.
Our upper house is far more representative because each state and territory has multiple seats and thus you can get a more representative outcome.
Our upper house is far more representative because each state and territory has multiple seats and thus you can get a more representative outcome.
> Saying "no system fully implements direct democracy" feels like a no-true-scotsman stance, since by the same token no system fully implements representative democracy either
Of course some systems implement forms of direct democracies, although they are not represented in the UN because they are not taking part in the "game of thrones" of international politics. But saying that no Nation State implements direct democracy is right on point, because "democracy" is the very opposite (by definition, i.e. "power to the people") to the State ("power over the people").
In contrast, most States on Earth (even Kingdoms!) implement forms of representation/election. Now, can we even call that a democracy? Electoral systems as we know them today were designed in the 18th century by french and american politicians/philosophers who were strongly opposed to (and afraid of) democracy so that's a bit of a stretch.
I mean take a very simple issue: ask everyone "should some people be sleeping on the streets when there's millions of empty dwellings?" and they'll all say "no". Now see what the government is doing with this popular will, and you'll understand government don't care about the people and wipe their asses with our needs. Call me "cynical" if you will but i'm certain the people who uphold Nation State have no expertise, and certainly have material interests opposed to ours.
Of course some systems implement forms of direct democracies, although they are not represented in the UN because they are not taking part in the "game of thrones" of international politics. But saying that no Nation State implements direct democracy is right on point, because "democracy" is the very opposite (by definition, i.e. "power to the people") to the State ("power over the people").
In contrast, most States on Earth (even Kingdoms!) implement forms of representation/election. Now, can we even call that a democracy? Electoral systems as we know them today were designed in the 18th century by french and american politicians/philosophers who were strongly opposed to (and afraid of) democracy so that's a bit of a stretch.
I mean take a very simple issue: ask everyone "should some people be sleeping on the streets when there's millions of empty dwellings?" and they'll all say "no". Now see what the government is doing with this popular will, and you'll understand government don't care about the people and wipe their asses with our needs. Call me "cynical" if you will but i'm certain the people who uphold Nation State have no expertise, and certainly have material interests opposed to ours.
Ah okay, you're having a philosophical argument about the concept of a direct democracy and how it technically should be a form of anarchy or possibly anarcho-syndicalism.
While I think that is also a very interesting topic and I'm sure we would agree on many things, I'm not sure it helps to get into the philosophical argument while talking about real-life political systems and the different flavours of representative democracies.
While I think that is also a very interesting topic and I'm sure we would agree on many things, I'm not sure it helps to get into the philosophical argument while talking about real-life political systems and the different flavours of representative democracies.
> you're having a philosophical argument
I don't think i am, sorry if it sounds like bikeshedding. I'm interested in the practical question of who holds political power, and who holds the "legitimate violence" to enforce this political power.
If me and my neighbors can't "legally" define our own sets of rules and regulations (which we can't in France), i just can't call that a democracy. Time and time again i've witnessed local communes get crushed by national/industrial interests... that's a very practical concern, not philosophical, whether you can keep your home and your life or they're going to destroy your entire village like they did around the Hambach charcoal mine (or like they tried in NDDL, or are still trying in Bure).
I don't think i am, sorry if it sounds like bikeshedding. I'm interested in the practical question of who holds political power, and who holds the "legitimate violence" to enforce this political power.
If me and my neighbors can't "legally" define our own sets of rules and regulations (which we can't in France), i just can't call that a democracy. Time and time again i've witnessed local communes get crushed by national/industrial interests... that's a very practical concern, not philosophical, whether you can keep your home and your life or they're going to destroy your entire village like they did around the Hambach charcoal mine (or like they tried in NDDL, or are still trying in Bure).
I do believe mechanisms for secession can make sense. I hope Scotland stays in the Union but I also believe they should have the right to choose not to. However then you get into the question of what constitutes a region that could reasonably secede. That must imply a historic and inalienable right to the territory, to be able to make that decision. It’s a difficult one.
If you and your neighbours want to not be subject to the French government, you can always go somewhere else. The fact there’s probably nowhere better for you to go is hardly France’s problem.
If you and your neighbours want to not be subject to the French government, you can always go somewhere else. The fact there’s probably nowhere better for you to go is hardly France’s problem.
Sorry, I wasn't trying to say it's not an important discussion, just simply that if we start by saying that no country which is not anarchist cannot be called a democracy feels like a semantic gotcha if we're talking about electoral systems in countries that are commonly called democratic.
> (AFAIK no country guarantees that there is a precise percentage match of party representation to the popular vote with no lower bound on how many votes a party needs to enter, as it would be unworkable to have such a system
Representative democracy doesn’t require a “precise percentage match of party representation …”, but direct democracy is explicitly defined as a system in which there are no representatives.
> especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world
This is hyperbole. The US system is pretty representative, and the extent to which it isn’t has very little to do with the voting system and much more to do with incentives (elected officials are beholden to their corporate backers rather than their constituents) and to a lesser extent, our two party system.
Representative democracy doesn’t require a “precise percentage match of party representation …”, but direct democracy is explicitly defined as a system in which there are no representatives.
> especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world
This is hyperbole. The US system is pretty representative, and the extent to which it isn’t has very little to do with the voting system and much more to do with incentives (elected officials are beholden to their corporate backers rather than their constituents) and to a lesser extent, our two party system.
> Switzerland comes very close
We very much don’t. Public proposals have to go through multiple rounds of deliberation, cooling down, revision and supermajority popular approval before becoming law.
We very much don’t. Public proposals have to go through multiple rounds of deliberation, cooling down, revision and supermajority popular approval before becoming law.
I am repeating what I have heard from other Swiss people, so while you may not feel that the electoral system is as good as it should be (which is a completely justified opinion in any country and I am sure that Swiss people are not a monolith on this topic), it would be disingenuous to say that Switzerland is not even remotely close to a direct democracy. I am not aware of any other country that has a formal mechanism for laws to be changed where the government or parliament is not directly controlling the process.
> it would be disingenuous to say that Switzerland is not even remotely close to a direct democracy
I am saying it is as good as it is because it is not direct. The majority can propose an initiative, but the legislature gets to deliberate and draft a counter-proposal, with all of this taking time and encouraging sponsors to withdraw their initiative. In essence, it’s a way to prompt the legislature in a certain direction. Not for the majority to write the law. For an example of how that breaks, see California’s referendum process.
I am saying it is as good as it is because it is not direct. The majority can propose an initiative, but the legislature gets to deliberate and draft a counter-proposal, with all of this taking time and encouraging sponsors to withdraw their initiative. In essence, it’s a way to prompt the legislature in a certain direction. Not for the majority to write the law. For an example of how that breaks, see California’s referendum process.
And also, from my understanding a local Commune doesn't have the power to overrule national laws locally. Which means that when a short majority of racists sets up bans related to muslim cults as happened a few years ago, a local municipality can't overrule that and say all faiths and buildings and clothings are welcome.
Is my understanding correct?
Is my understanding correct?
> a local Commune doesn't have the power to overrule national laws locally
Yes, federal law has general supremacy.
Yes, federal law has general supremacy.
It would depend on what happens next...do the people against lynching get their own place where they decide their own rules democratically ? Or the other way, do pro-lynching people go build a new Lynching Empire somewhere else and leave their land and resources behind ?
I'd be a supporter of freedom to decide any rule within a group if there was infinite resources and we'd just move freely to the places we want to be with the groups we want to belong to. Short of that, the majority agreeing on something is probably not enough to warrant changes, but then of course we have to deal with the imbalance...
I'd be a supporter of freedom to decide any rule within a group if there was infinite resources and we'd just move freely to the places we want to be with the groups we want to belong to. Short of that, the majority agreeing on something is probably not enough to warrant changes, but then of course we have to deal with the imbalance...
People against lynching were primary in the lynched demographic. It was among other things a way to make then scared to go vote and to punish success.
It can also go the other way, with a jury convicting someone even though they don't believe the person is guilty.
Some say this would not be a problem because unlike in an acquittal the judge can overturn a guilt verdict. That's not a convincing argument because much of what a jury does is decide which of believable but conflicting witness accounts to believe. The judge often has no way to distinguish between the jurors found the prosecution witnesses more believable (and so the judge should let the conviction stand) and the jurors found the defense witnesses more believable but decided to convict anyway because they didn't like something about the defendant such as their race, or bad things they did not relevant to the crime they are being tried for (and so the judge should acquit the defendant).
Some say this would not be a problem because unlike in an acquittal the judge can overturn a guilt verdict. That's not a convincing argument because much of what a jury does is decide which of believable but conflicting witness accounts to believe. The judge often has no way to distinguish between the jurors found the prosecution witnesses more believable (and so the judge should let the conviction stand) and the jurors found the defense witnesses more believable but decided to convict anyway because they didn't like something about the defendant such as their race, or bad things they did not relevant to the crime they are being tried for (and so the judge should acquit the defendant).
Not really since a court can overturn a verdict without a second trial by jury. A jury nullification can't be overturned by a court.
You'd have to abolish double jeopardy if you wanted equivalence.
You'd have to abolish double jeopardy if you wanted equivalence.
Aside: England and Wales abolished DP in 2005 for serious crimes: (“two conditions: the retrial must be approved by the Director of Public Prosecutions, and the Court of Appeal must agree to quash the original acquittal due to "new and compelling evidence"). Prior to that, innocent verdicts could be appealed for jury / witness tampering, etc.
Yes, that's the corresponding miscarriage of justice during that era where white juries would acquit lynchers.
See George Stinney Jr. for an example.
See George Stinney Jr. for an example.
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I sort of think that people who are willing to use jury nullification would just vote not guilty if they didn't know the option existed.
Not if they are instructed or for other reasons believe that their job is to make a strictly legal finding. I.e. to decide only the question "did $DEFENDANT violate $LAW". As opposed to the broader questions: whether $LAW is good; whether it is being applied fairly, and so on. It's not uncommon for people to disagree with an outcome but decide it's acceptable because of the way it was reached: "This sucks but it's the rules/my duty". Jury nullification makes considering the rightness of the outcome part of the rules.
sure I guess there would be people who would think like that, but not sure what percentage, if it were me and I were instructed to make a strict legal finding and I thought the law was wrong I would say not guilty when it came time to vote and would not be swayed.
But maybe I'm an outlier like that. I guess also its rather conceited of me, but that's the way it is.
But maybe I'm an outlier like that. I guess also its rather conceited of me, but that's the way it is.
Better to leave the law to the self-proclaimed "experts" who wrote and enforced laws permitting slavery for most of a century.
You mean people who were elected by other people. There's no difference
> You mean people who were elected by other people.
In reality, it was people elected by male landowners.
In reality, it was people elected by male landowners.
Corrupt people who were elected by other people and don't necessarily serve there interests, yes. And I disagree.
Elected officials aren't "self-proclaimed." Election is the best possible example of proclaiming.
In fact many are self-proclaimed experts.
If the definition of "self-proclaimed" includes agreeing with popular proclamation, who is ever proclaimed but not self-proclaimed? You've rendered the "self-" prefix redundant, in which case why include it?
Winning an election is not a proclamation or any other kind of indication that somebody is an expert in law, governing, or anything else except winning elections. I can't work out how you've made that leap.
Election to office is an indication that voters generally agree with your claims of expertise, and thus are proclaiming you an expert.
Voters who want someone in office who is not an expert at governing vote for someone who doesn't claim to be an expert.
Voters who want someone in office who is not an expert at governing vote for someone who doesn't claim to be an expert.
It's no such thing.
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Slavery wasn't a crime. And the slaves were property, not allowed trial by jury.
Stopping the punishment of crimes is not halting all injustice.
Stopping the punishment of crimes is not halting all injustice.
Helping slaves escape was a crime (Fugitive Slave Act) and an early use of jury nullification.
> Slavery wasn't a crime.
Slavery was 100% enabled by the fact that escaping from slavery was a crime.
Slavery was 100% enabled by the fact that escaping from slavery was a crime.
Yes, but keeping someone enslaved was not a crime by the laws of that time and place.
"They" could also use this to prevent prosecution for abortion. The knife cuts both ways.
Although this is about the jury, this is actually something that turns me away from progressive parties: the only reason you're fighting for something is because Congress failed to acknowledge it for 250 years consecutively and we're supposed to pretend that this time its different.
The similarity here being that Congress sat on its hands regarding lynching for over a hundred years, followed by another 100 years of the Senate blocking everything the House brought up till just this year, long after everyone independently decided "hey, let's not lynch people". Its not supposed to be a defeatist approach, its just "hey lets focus on something that has consensus because trying this again is just a waste of energy". I'm interested in some aspects of fiscal and foreign policy, for example. That priority might not come from the same party.
The similarity here being that Congress sat on its hands regarding lynching for over a hundred years, followed by another 100 years of the Senate blocking everything the House brought up till just this year, long after everyone independently decided "hey, let's not lynch people". Its not supposed to be a defeatist approach, its just "hey lets focus on something that has consensus because trying this again is just a waste of energy". I'm interested in some aspects of fiscal and foreign policy, for example. That priority might not come from the same party.
If you think jury nullification is a potential problem just wait until you hear that district attorneys have almost absolute authority to decide what crimes are punished. One person can unilaterally dictate that petty theft is no longer a crime, for example.
In that lens I don’t believe jury nullification is much of a problem.
In that lens I don’t believe jury nullification is much of a problem.
The proper remedy for bad governance is to elect different public officials to represent you. Jury nullification is far too weak, even as tinfoil hats go. Sure it's a thing and it's not illegal. It's just silly and unstable, and it should never be depended upon by society to replace good legislation and executive power.
Besides the fact that this ruling was about free speech rights, not jury nullification. You can say all you want outside a courthouse as long as you're not disrupting the legal system or trying to sway a particular jury in a specific case.
Besides the fact that this ruling was about free speech rights, not jury nullification. You can say all you want outside a courthouse as long as you're not disrupting the legal system or trying to sway a particular jury in a specific case.
"The proper remedy for bad governance is to elect different public officials to represent you."
After 4 years you can attempt to fix it. Though if the person who you elect actually tries to fix it there's a good chance they will be stopped by the courts from doing so.....
E.G. Let's say bad politician hires bad people who implement bad policies. New politician comes in and tries to fire bad people, they sue saying its political persecution and they haven't done anything wrong and haven't violated the standards of their job or their contract. Court upholds it. They continue implementing bad policies, to the point of snubbing their nose at the person who got elected. What is the remedy here?
After 4 years you can attempt to fix it. Though if the person who you elect actually tries to fix it there's a good chance they will be stopped by the courts from doing so.....
E.G. Let's say bad politician hires bad people who implement bad policies. New politician comes in and tries to fire bad people, they sue saying its political persecution and they haven't done anything wrong and haven't violated the standards of their job or their contract. Court upholds it. They continue implementing bad policies, to the point of snubbing their nose at the person who got elected. What is the remedy here?
One person, who is typically elected. And that's if federal authorities decide to not get involved.
If the whole community believes X is not a crime and willing to nullify the law as juries, certainly they will elect a prosecutor who thinks the same.
That's a drastic oversimplification. For one counterexample, consider a prosecutor who believes x but also y. The community agrees on x but not y and consider that a dealbreaker, so the prosecutor is not elected. And this doesn't include issues such as ease of voting and gerrymandering.
They will also elect legislators that will remove such laws.
Or subject to recall. Which is what just happened to San Francisco DA Chesa Boudin.
After the cops decided not to arrest, then blame Boudin for not prosecuting. Cops just hanging out watching the crimes.
Let's not turn it into a whole Boudin debate. He was recalled, which indicates some level of voter discontent with how he operated. I personally voted against recall, but it is what it is.
DAs and police are directly or indirectly answerable to the public. Court proceedings are generally public record. Elected local governments have authority over law enforcement. See the recent case (without judging it's merits) of Gov DeSantis suspending a DA who refused to enforce abortion bans.
To be fair, they tend to only nullify the crimes of the wealthy and well-connected.
Whataboutism
Pareto principle. Focus on something that matters and is actually happening instead of nonexistent hypotheticals.
There was a time in England that theft was punishable by the death penalty. When I was younger, I learned that changed because of behavior of criminals under incentives: when stealing the bread is punishable by death, you may as well kill the baker too, to cover your tracks and maximize survival odds.
That might be true, but the more specific issue England (specifically, London) ran into is that trials for theft were trials by jury, and the jury (staring into the eyes of the accused and recognizing a boy of only sixteen in the box) increasingly found thieves innocent rather than having to have the death of a child on their conscience. Facing a situation where theft was functionally un-punishable by law because no jury would convict on a crime like that with a death penalty attached, the merchant class petitioned to have the punishment stricken from that category of crime.
This is, incidentally, why "right to a jury of one's peers" and "right to face one's accuser" are baked into the US Constitution... A lot of actual justice happens at the intersection of the law and the humans who must execute it.
That might be true, but the more specific issue England (specifically, London) ran into is that trials for theft were trials by jury, and the jury (staring into the eyes of the accused and recognizing a boy of only sixteen in the box) increasingly found thieves innocent rather than having to have the death of a child on their conscience. Facing a situation where theft was functionally un-punishable by law because no jury would convict on a crime like that with a death penalty attached, the merchant class petitioned to have the punishment stricken from that category of crime.
This is, incidentally, why "right to a jury of one's peers" and "right to face one's accuser" are baked into the US Constitution... A lot of actual justice happens at the intersection of the law and the humans who must execute it.
> There was a time in England that theft was punishable by the death penalty.
Having death as penalty for theft is pretty extreme in the first place. Even countries that only chop of your hand seem highly advanced in contrast.
Having death as penalty for theft is pretty extreme in the first place. Even countries that only chop of your hand seem highly advanced in contrast.
They even a used a version of the guillotine before Monsieur Guillotin to do it: https://en.wikipedia.org/wiki/Halifax_Gibbet
Checks out: https://en.wikipedia.org/wiki/Bloody_Code
That's pretty much the original idea:
The jury is an old form of democracy. The king/government can make what laws they like, but it needs to have enough popular support that a jury will freely choose to convict according to it.
Of course, like all forms of democracy, the outcomes don't always agree with your or my sense of justice.
> it has to be balanced against crimes that are in principle clearly wrong
In this system, whoever gets to decide what is "clearly wrong" has the real power.
The jury is an old form of democracy. The king/government can make what laws they like, but it needs to have enough popular support that a jury will freely choose to convict according to it.
Of course, like all forms of democracy, the outcomes don't always agree with your or my sense of justice.
> it has to be balanced against crimes that are in principle clearly wrong
In this system, whoever gets to decide what is "clearly wrong" has the real power.
> In this system, whoever gets to decide what is "clearly wrong" has the real power.
Who gets to decide? The jury. That's the point. They have the real power.
Who gets to decide? The jury. That's the point. They have the real power.
> From what little I know about it, it seems that if enough people in a community knew about it, they could 100% control what crimes are punished in that community.
Only in one direction, I think. Jury nullification still can't render a guilty verdict, when the law says the defendant ain't guilty. (At least in principle.)
Only in one direction, I think. Jury nullification still can't render a guilty verdict, when the law says the defendant ain't guilty. (At least in principle.)
If a community really wants to severely punish something that's legally not a crime, jury nullification enables the community representatives to enact whatever extrajudicial punishment they want (e.g. the existing examples of lynching or "honor killings"/"honor rapes" in certain communities) and then protect these punishers from the legal system.
To a certain extent, yes, but the punishers need to be tried locally, too, for this to work.
It's in only one direction, because a jury cannot form itself and pick a victim to falsely convict.
A jury can still falsely convict, but a defendant can appeal a guilty verdict.
Non-guilty verdicts are more final.
Non-guilty verdicts are more final.
It's a limited trump card, in that a jury can nullify law but not make it, or even adjust the charge. And their decision holds no legal precident beyond the immediate case.
I think of an informed jury as the tire between the wheel and the road, to fill the gap between the abstract judgement of the legislature and the concrete particulars. Tires do fail, sometimes fatally, but they save a lot of wear on the whole system.
I think of an informed jury as the tire between the wheel and the road, to fill the gap between the abstract judgement of the legislature and the concrete particulars. Tires do fail, sometimes fatally, but they save a lot of wear on the whole system.
The one case I was a juror on, there were questions about specific details of the charge vs the standard for a conviction on that charge. We couldn't get clarification because the judge decided to go home at 4:30, 40 minutes into deliberations.
No one wanted to come back to deliberate another day, so we convicted on the counts we were sure of and acquitted on the remainder. The aggravated details made no sense as the verdicts were read as they ended up being grossly inconsistent. In the end, the defendant was sentenced to 6 years. It could have been 60 years if the judge had hung around though.
No one wanted to come back to deliberate another day, so we convicted on the counts we were sure of and acquitted on the remainder. The aggravated details made no sense as the verdicts were read as they ended up being grossly inconsistent. In the end, the defendant was sentenced to 6 years. It could have been 60 years if the judge had hung around though.
In the Anglo-American tradition, juries cannot nullify, make, or frankly do anything else with law. What they can do is decide the facts. Jury nullification is the jury legally denying the facts, no matter how observably true they are. Because legally speaking the jury determines the facts, that’s that. A judge can overrule a guilty verdict, but not an innocent one.
During 2019 protests in Hong Kong, the idea of jury nullification was known to many people, in hopes of setting the protesters free. The government used loopholes so most protest related cases were trialed without jury.
It's unfortunate that Hong Kong didn't codify it's citizens' right to a trial by jury.
"Imagine a town didn't like someone of a certain political leaning. They could murder that person and it would only take one jury member.
Reminds me of the killing of Ken McElroy[0]
>In all, there were 46 potential witnesses to the shooting, including Trena McElroy, who was in the truck with her husband when he was shot. No one called for an ambulance. Only Trena claimed to identify a gunman; every other witness either was unable to name an assailant or claimed not to have seen who fired the fatal shots. The DA declined to press charges. An extensive federal investigation did not lead to any charges. Missouri-based journalist Steve Booher described the attitude of some townspeople as "He needed killing."
0. https://en.wikipedia.org/wiki/Ken_McElroy#1981_killing
>In all, there were 46 potential witnesses to the shooting, including Trena McElroy, who was in the truck with her husband when he was shot. No one called for an ambulance. Only Trena claimed to identify a gunman; every other witness either was unable to name an assailant or claimed not to have seen who fired the fatal shots. The DA declined to press charges. An extensive federal investigation did not lead to any charges. Missouri-based journalist Steve Booher described the attitude of some townspeople as "He needed killing."
0. https://en.wikipedia.org/wiki/Ken_McElroy#1981_killing
Highly recommend the Criminal Podcast episode on Ken McElroy
https://podcasts.apple.com/us/podcast/episode-66-bully/id809...
https://podcasts.apple.com/us/podcast/episode-66-bully/id809...
Or Emmett Till.
https://en.wikipedia.org/wiki/Emmett_Till
https://en.wikipedia.org/wiki/Emmett_Till
spoonjim(3)
Sometimes it do be like that though.
The justice system is supposed to apply to all.
Well it seemingly didn't apply to the guy who seems to have escaped 20+ convictions by... intimidating witnesses? Frankly bizarre.
Just looking at the 20+ number and without further context, we can't say whether he was falsely accused escaped the convictions because the justice system worked for once, or whether he was correctly accused, and escaped the convictions because the justice system had false negatives.
(Looking at the rest of the Wikipedia entry, I am very sympathetic to the latter point of view.)
(Looking at the rest of the Wikipedia entry, I am very sympathetic to the latter point of view.)
>one jury member
Doesn't the jury verdict need to be unanimous? If they can't come to agreement, they redo the trial I thought. So one jury member can force a retrial, but can't force a not guilty verdict.
Doesn't the jury verdict need to be unanimous? If they can't come to agreement, they redo the trial I thought. So one jury member can force a retrial, but can't force a not guilty verdict.
> crimes that are in principle clearly wrong, despite what a local community believes.
Who has the magical power to know which crimes these are that are "in principle clearly wrong" with such certainty that they can override the community's beliefs? We're all fallible humans and nobody has a special private line to The Truth.
Who has the magical power to know which crimes these are that are "in principle clearly wrong" with such certainty that they can override the community's beliefs? We're all fallible humans and nobody has a special private line to The Truth.
I like to think that saying lynching black folks is "in principle clearly wrong" is one example where I am okay with thinking that I am certain enough to override a "community's beliefs" about what is right or wrong.
I don't think that this is a magical power.
I don't think that this is a magical power.
The problem is that the people who thought lynching was fine had the same sense of certainty that you have. Which all by itself is enough to refute the claim that such a sense of certainty is sufficient.
Yes, they did. But we've improved as a species. We may not recognize what our descendents will consider barbaric in our behavior, but we can be the ratchet that prevents us from repeating the barbarism of our forbears.
> we've improved as a species
This is arguing in a circle. It's only an "improvement" for someone who already agrees with your ethical and moral claim.
This is arguing in a circle. It's only an "improvement" for someone who already agrees with your ethical and moral claim.
Disagree, cultural norms are not just formless things that can come and go entirely without context. We can never have a discussion about the morality of slavery without the historical context.
You aren't disagreeing with me, you're agreeing with me. You're saying that ethical and moral claims are context dependent, not absolute. Such claims include claims that, for example, abolishing slavery or lynching is an "improvement". Which is exactly my point.
I don't think it's safe to assume something obviously bad today won't be good by many/most measures tomorrow. In fact I'm quite certain that the advancement of society doesn't rely exclusively on constraints, but also on expanding freedoms and loosing poorly conceived constraints.
To me, any syllogism which tells me I am not qualified to say that lynching is not immoral is probably broken.
Rational argumentation is fine but it requires that we start with some reasonable premises.
Like any math problem, if you get strange answers it indicates that you're doing the problem wrong. If you divide the circumference of a circle by its diameter and you get something like 31.4 you might wanna check your math.
In this case, if you've "refuted" the idea that racially-based lynchings are universally morally impermissible, you might really wanna look at your math.
Rational argumentation is fine but it requires that we start with some reasonable premises.
Like any math problem, if you get strange answers it indicates that you're doing the problem wrong. If you divide the circumference of a circle by its diameter and you get something like 31.4 you might wanna check your math.
In this case, if you've "refuted" the idea that racially-based lynchings are universally morally impermissible, you might really wanna look at your math.
> Rational argumentation is fine but it requires that we start with some reasonable premises.
Yes, but you aren't doing that. You aren't deriving the conclusion that lynching is wrong from some reasonable premises. You're just asserting it. Another poster downthread did offer a reasonable premise, the golden rule, from which the conclusion that lynching is wrong can be derived. But that doesn't completely solve the problem either; see further comments below.
> if you've "refuted" the idea that racially-based lynchings are universally morally impermissible
This claim is already refuted by human history.
> you might really wanna look at your math
You might really wanna consider that ethics and morality are not math. You can't establish ethical and moral claims simply by deduction. You have to get people to agree to them--or you have to impose them on people by force (and then you have to deal with the ethical and moral problem of justifying such use of force). Even if you have premises that you think are reasonable that support your ethical and moral claims, you still have to get other people to agree to the premises. That's why ethics and morality are hard.
Yes, but you aren't doing that. You aren't deriving the conclusion that lynching is wrong from some reasonable premises. You're just asserting it. Another poster downthread did offer a reasonable premise, the golden rule, from which the conclusion that lynching is wrong can be derived. But that doesn't completely solve the problem either; see further comments below.
> if you've "refuted" the idea that racially-based lynchings are universally morally impermissible
This claim is already refuted by human history.
> you might really wanna look at your math
You might really wanna consider that ethics and morality are not math. You can't establish ethical and moral claims simply by deduction. You have to get people to agree to them--or you have to impose them on people by force (and then you have to deal with the ethical and moral problem of justifying such use of force). Even if you have premises that you think are reasonable that support your ethical and moral claims, you still have to get other people to agree to the premises. That's why ethics and morality are hard.
And, for what it's worth, this principle that unexpected results indicate an error is quite useful.
I can't edit out the double negative in my first sentence which makes it incoherent (thanks to HN's time out system) but I can expect that most readers would see that and understand it is a grammatical error, and I'd expect that they'd have a some certainty about their reading of that sentence.
I can't edit out the double negative in my first sentence which makes it incoherent (thanks to HN's time out system) but I can expect that most readers would see that and understand it is a grammatical error, and I'd expect that they'd have a some certainty about their reading of that sentence.
I think the golden rule is usually sufficient. almost nobody wants to be lynched. likewise stolen from or harmed. the world is a better place with people abiding by that
This is fine, but it's not basing claims about what is good or bad on just your personal opinion or feeling. It's basing it on a general principle that is supposed to apply equally to everybody. That is indeed the only way of escaping the merry go round of shifting personal opinions and feelings. But it is also not perfect: not all ethical and moral issues can be resolved this way, because now you have the problem of which general principles should be used. Not everybody agrees with the golden rule, just as not everybody agrees that lynching is bad.
> almost nobody wants to be lynched
To illustrate why even reasoning from general principles has issues, consider: are you also against punishing people who commit crimes, on the grounds that almost nobody wants to be punished?
To illustrate why even reasoning from general principles has issues, consider: are you also against punishing people who commit crimes, on the grounds that almost nobody wants to be punished?
Sure it is not infallible but that is why I hedged the statement a little bit by saying "usually sufficient".
I very much hope most of us here think that lynchings for having the wrong colour of one’s skin is wrong, while history has showed that there are communities that don’t consider them crimes.
There are good reasons why we try to minimise how much of law enforcement that are left to peoples discretion.
There are good reasons why we try to minimise how much of law enforcement that are left to peoples discretion.
> There are good reasons why we try to minimise how much of law enforcement that are left to peoples discretion.
I don't know where you're getting this from. Practically all of law enforcement is left to people's discretion. The people exercising the discretion just aren't members of juries in most cases.
I don't know where you're getting this from. Practically all of law enforcement is left to people's discretion. The people exercising the discretion just aren't members of juries in most cases.
No, they are police, prosecutors and judges. And that is one of the problems with the US system of justice. Justice is supposed to be blind. As it works now, the white upper class kid gets a slap on the wrist after raping an unconscious woman, while the black kids go to prison for minor possession. And since the people in charge don’t have worry about the laws being applied to them, they introduce outrageous laws. The governor never has to worry about his daughter going to prison when she needs an abortion.
Thank you for agreeing with my point.
> clearly wrong, despite what a local community believes.
If the local community doesn't find them wrong, perhaps it is not as clear as you're claiming.
If the local community doesn't find them wrong, perhaps it is not as clear as you're claiming.
This is why attorneys get to ask questions of potential jurors and ask for them to be excused.
Lawyer- "Would you nullifiy this verdict due to personal beliefs?"
Juror with strong opinions "ohh no, never"
Juror with strong opinions "ohh no, never"
How it actually works (based on serving in jury selection pools):
Lawyer: Are members of your profession stereotypically capable of independent critical thought?
Juror: Yes?
Lawyer: Dismissed.
(They just ask for professions and maybe educational background then infer the rest.)
Lawyer: Are members of your profession stereotypically capable of independent critical thought?
Juror: Yes?
Lawyer: Dismissed.
(They just ask for professions and maybe educational background then infer the rest.)
Not my experience at all. And remember, what's good for the prosecutor, is bad for the defense, and vice versa.
And each side gets only a handful of dismissals. You waste it on some guy you think is "too smart" and you might not be able to use it on that guy who thinks your client is guilty already.
And each side gets only a handful of dismissals. You waste it on some guy you think is "too smart" and you might not be able to use it on that guy who thinks your client is guilty already.
I think pretty trivially whats good for the prosecutor is not necessarily bad for the defense. i.e. if somebody says they're going to flip a coin to make their decision is going to be bad for both of them. (unless one side thinks they have absolutely no chance).
Not a lawyer but I think you have unlimited dismissals [1] its just there's a limit to the number of ones you don't have to provide a reason for. And I'm also sure the rules vary state by state.
[1]: https://www.americanbar.org/groups/public_education/resource...
Not a lawyer but I think you have unlimited dismissals [1] its just there's a limit to the number of ones you don't have to provide a reason for. And I'm also sure the rules vary state by state.
[1]: https://www.americanbar.org/groups/public_education/resource...
You’re right, when I say they get a certain number of dismissals, it’s “no questions asked”. But getting a judge to dismiss someone who you don’t feel is sympathetic to your client isn’t going to fly.
So the “no questions asked” dismissals tend to be people who may be sympathetic to either side.
If it’s a murder case the defense may want people who are pro-self defense while the prosecution may not.
Being pro or anti-self defense isn’t in itself a disqualified as long as you can follow jury instructions.
So the “no questions asked” dismissals tend to be people who may be sympathetic to either side.
If it’s a murder case the defense may want people who are pro-self defense while the prosecution may not.
Being pro or anti-self defense isn’t in itself a disqualified as long as you can follow jury instructions.
> (unless one side thinks they have absolutely no chance).
Wouldn't one side having a 49% chance be enough for them to prefer the coin flip?
Wouldn't one side having a 49% chance be enough for them to prefer the coin flip?
Generally, the issue is that the person has specialized knowledge that one side or the other inevitably doesn't want on the jury.
Amusingly when I was in voir dir it was all about the lawyers in the pool getting excused.
Juror then gets a mistrial called and goes to jail for perjury.
"Your honor, I had a change of heart during the trial."
Not sure why downvoted. This is true.
Eh, not really.
Rule 606 of the Federal Rules of Evidence prohibits a juror from testifying “about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” [0]
Without testimony, how would you make the case for perjury? You can’t force the juror to incriminate themself, nor can you ask the other jurors to incriminate them. There’s no functional way to distinguish between nullification and a deliberated no vote.
[0] See page 25 (labelled as 12) https://www.uscourts.gov/sites/default/files/Rules%20of%20Ev....
Rule 606 of the Federal Rules of Evidence prohibits a juror from testifying “about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” [0]
Without testimony, how would you make the case for perjury? You can’t force the juror to incriminate themself, nor can you ask the other jurors to incriminate them. There’s no functional way to distinguish between nullification and a deliberated no vote.
[0] See page 25 (labelled as 12) https://www.uscourts.gov/sites/default/files/Rules%20of%20Ev....
> Without testimony, how would you make the case for perjury?
You’re almost certainly going to be asked about your ability to make a decision on the basis of the law, and solely the law, during voir dire. If you say yes and then go on to nullify, you perjured yourself.
You’re almost certainly going to be asked about your ability to make a decision on the basis of the law, and solely the law, during voir dire. If you say yes and then go on to nullify, you perjured yourself.
I agree that it’s (morally) perjury, but I don’t see how it could be proven in court. The prosecutor can’t compel the individual juror (5th Amendment) or the rest of the jury (Rules of Evidence) to testify. I suppose someone could voluntarily waive their 5A rights and confess but…
As a juror, you aren't required to explain your thought process.
"nullifying" means voting "not guilty". There's no evidence to prove that the juror did not just distrust all of the evidence presented, or feel that it didn't rise to the threshold of beyond a reasonable doubt.
You'd make the case for perjury, because people who like jury nullification love to talk about it. Chances are they talked about it extensively online using poor opsec.
So long as the juror isn't a complete moron, it won't happen. To get to the point where a juror is convicted of perjury, you need one of the other jurors to turn them in to the judge. Something that can pretty much only happen at the end of the trial (since the jurors are barred from speaking to anyone about the case.)
Even that won’t work because jurors aren’t allowed to testify about their deliberations (with a few irrelevant exceptions).
How? You just keep it to yourself.
I guess it would have to become a widespread problem, for lawyers to start asking this (and to some extent it hints to the existence of jury nullification).
You are under oath during jury selection, right? So I guess that could hypothetically get you into some trouble. Although I'm sure it is pretty much unheard of for them to go after somebody who lied during jury selection questions...
You are under oath during jury selection, right? So I guess that could hypothetically get you into some trouble. Although I'm sure it is pretty much unheard of for them to go after somebody who lied during jury selection questions...
Not necessarily a full prosecution, but it recently happened in the Ghislaine Maxwell trial.
(Juror lied about his past sexual abuse. Nothing is really going to happen, but it probably caused him some sleepless nights)
https://www.reuters.com/world/us/judge-grants-immunity-maxwe...
(Juror lied about his past sexual abuse. Nothing is really going to happen, but it probably caused him some sleepless nights)
https://www.reuters.com/world/us/judge-grants-immunity-maxwe...
More likely "Wait... oh yea, I would do that." and gets to go home and not serve jury duty.
[deleted]
I've served as a juror before and most people are just trying to find excuses get kicked out.
There's a much better and more ethical form of nullification if citizens refuse to enforce a law. Just say so at voir dire. It's virtually guaranteed it will be asked when a jury is being selected "If the evidence shows guilt, will you vote to convict?" If you say "yes" then nullify, you've lied under oath even if you're never caught. And your opinion is secret forever. Just say "no". If they can't get 12 people willing to convict, the law is nullified and public opinion is clear and no law has been broken or bent.
Yes, and jury nullification is the intent of 7th Amendment. The point is so that regular people decide what is and isn't a crime at the particular level.
The jury of your peers is truly the last word in the United States, and many other common law nations. This is not perfect, but it is better than the alternative.
It's a check on the prosecutor's power that has been gradually eroded by the legal system. Grand juries, similarly, have been eroded in their abilities to check prosecutor power.
The jury of your peers is truly the last word in the United States, and many other common law nations. This is not perfect, but it is better than the alternative.
It's a check on the prosecutor's power that has been gradually eroded by the legal system. Grand juries, similarly, have been eroded in their abilities to check prosecutor power.
This is why a judge can bring in a jury from outside of the community.
But yes, the US law system is deeply flawed in many many ways, and most of it is intentionally (through also historically).
But yes, the US law system is deeply flawed in many many ways, and most of it is intentionally (through also historically).
What would be a better alternative?
To juries? Or to the US legal system?
In an ideal world a good judge is likely better for you than a jury if the law is on your side. Unfortunately good judges are hard to pick, and elections of judges don't seem like a solution.
In terms of the legal system itself, there is way too much room for power bias that needs reform.
In theory the law is blind, applying to everyone equally. In practice it is executed by humans who are anything but blind. Bad actors exist at every level, police, DAs, prosecutors, judges and yes, juries.
Humans, and humanity, should be in the loop, but equally its hard to find sufficient quantities of good humans to participate.
Especially in the current political climate, elections for judges seem particularly fraught. A blood-hungry mob favours those who take a "lock up everyone forever" approach.
Equally, seeing the court as a mechanism for politics, from the highest court to the lowest, while it might be good for politics is bad for justice.
There is a lot to dislike about the current system with its various prejudices - but reform is hard because quality people are hard to find. And every bad apple in the system erodes public trust - and once trust in the system has gone it is hard to regain it.
So what would be a better alternative? Not necessarily a better system, but a system populated with better candidates. In many places that means voting for moderate candidates who are focused on justice, not law. On people with character, not who screams the loudest, or has the most extreme viewpoint. On supporting those police honestly "protecting and serving" while at the same time having a police force actively rooting out corruption and prejudice.
Trust is hard earned, and easily lost. Mostly its in the "lost" bucket right now. It will take a lot to get that back.
In an ideal world a good judge is likely better for you than a jury if the law is on your side. Unfortunately good judges are hard to pick, and elections of judges don't seem like a solution.
In terms of the legal system itself, there is way too much room for power bias that needs reform.
In theory the law is blind, applying to everyone equally. In practice it is executed by humans who are anything but blind. Bad actors exist at every level, police, DAs, prosecutors, judges and yes, juries.
Humans, and humanity, should be in the loop, but equally its hard to find sufficient quantities of good humans to participate.
Especially in the current political climate, elections for judges seem particularly fraught. A blood-hungry mob favours those who take a "lock up everyone forever" approach.
Equally, seeing the court as a mechanism for politics, from the highest court to the lowest, while it might be good for politics is bad for justice.
There is a lot to dislike about the current system with its various prejudices - but reform is hard because quality people are hard to find. And every bad apple in the system erodes public trust - and once trust in the system has gone it is hard to regain it.
So what would be a better alternative? Not necessarily a better system, but a system populated with better candidates. In many places that means voting for moderate candidates who are focused on justice, not law. On people with character, not who screams the loudest, or has the most extreme viewpoint. On supporting those police honestly "protecting and serving" while at the same time having a police force actively rooting out corruption and prejudice.
Trust is hard earned, and easily lost. Mostly its in the "lost" bucket right now. It will take a lot to get that back.
India had its face-palm moment when the jury acquitted a jealous husband of murder of his wife's lover and abolished jury trials soon after. (https://en.wikipedia.org/wiki/K._M._Nanavati_v._State_of_Mah...)
Skimming the wikipedia page the Jury's acquittal sounds reasonable as the murder wasn't premeditated.
The guy is trivially guilty of killing somebody (enough evidence + admission) but just because somebody killed somebody doesn't mean they are guilty of any specific law (i.e. driving while intoxicated or in this case premeditated murder). You do still need to charge them for the proper law.
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IIUC, the US gets around this problem by just trying people for multiple crimes at the same time and the jury can render verdicts on each of them.
The guy is trivially guilty of killing somebody (enough evidence + admission) but just because somebody killed somebody doesn't mean they are guilty of any specific law (i.e. driving while intoxicated or in this case premeditated murder). You do still need to charge them for the proper law.
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IIUC, the US gets around this problem by just trying people for multiple crimes at the same time and the jury can render verdicts on each of them.
Anonymized justice. The facts. The arguments and a decision without any of the parties knowing race or anything else.
"this anonymous person stands on trial for their role in spreading hoaxes in their show about Sandy hook shootings, they have made millions selling supplements online and host their own talk show catered to right wing conspiracies. "
I have literally no idea how you'd accomplish anonymity in many, many cases.
I have literally no idea how you'd accomplish anonymity in many, many cases.
Most cases aren’t that high profile.
Yes, most of the flaws in the US law system allow guilty people to go unpunished.
This was an intentional choice, to err on the side of assuming innocence rather than guilt.
This was an intentional choice, to err on the side of assuming innocence rather than guilt.
Are you sure that actual outcome of average case? Or rather just a saying? US imprisons most people I the world.
> if enough people in a community knew about it, they could 100% control what crimes are punished in that community
Yes, this is why juries are democratic: on aggregate, they ensure that interpretation of the law still reflects democratic will.
But more to the point - theoretically, regular people in a community already 100% control the law.
Yes, this is why juries are democratic: on aggregate, they ensure that interpretation of the law still reflects democratic will.
But more to the point - theoretically, regular people in a community already 100% control the law.
It’s not the ultimate trump card because a judge can still issue a directed verdict or a judgment as a matter of law which is basically when the judge says “no reasonable jury could have examined the evidence and come to that conclusion”.
IIUC, unless a defendant waives their right to a jury trial, a directed verdict may only ever be "not guilty." Otherwise, it's a violation of the Constitutional right to trial by jury.
Merely knowing about jury nullification wouldn't be sufficient to act on it. Most people would face a serious moral conundrum choosing between upholding an unjust law vs lying about evidence as a juror.
A jury is the last line of defense. The state can not use it's power to punish someone unless they can find 12 members of the community who are willing to allow the punishment.
It is supposed to be the last, final defense against the perversion of the justice system into political prosecution.
The state can make whatever laws it wants, but it can't enforce them without the will of (some of) the people.
Probably worked, too, when populations were smaller and communities more cohesive.
It is supposed to be the last, final defense against the perversion of the justice system into political prosecution.
The state can make whatever laws it wants, but it can't enforce them without the will of (some of) the people.
Probably worked, too, when populations were smaller and communities more cohesive.
Practically it can, because jury trial is expensive, less predictable and carries much longer sentence then plea bargain. So, 94% or so of cases end without trial.
The state says "take 3 years in plea bargain or risk 15 years and huge debt in jury trial".
The state says "take 3 years in plea bargain or risk 15 years and huge debt in jury trial".
If you're going to jail for 15 years, isn't running up a debt with your lawyers the least of your concerns?
A significant debt can be the least of your concerns and still be concerning
They could, but you could do it better by voting. All jury notification does is introduce randomness and bias.
Communities don’t always think the way you think.
It’s cool to be sympathetic to criminals now, but the people stuck living with drug dealers and pimps don’t share that.
It’s cool to be sympathetic to criminals now, but the people stuck living with drug dealers and pimps don’t share that.
If jury nullification doesn’t exist, then juries are pointless
That's just not true, though. I say that without taking a position on the merits of jury nullification.
Juries are generally charged with determining matters of fact; the judge matters of law. Even without jury nullification, a jury still determines whether the person performed a proscribed act, or did so with the requisite intent, etc.
When people talk about jury nullification, they generally mean the act of a jury actually believing that the person committed the act, but let them off because they don't think they should be punished for some other reason.
Juries are generally charged with determining matters of fact; the judge matters of law. Even without jury nullification, a jury still determines whether the person performed a proscribed act, or did so with the requisite intent, etc.
When people talk about jury nullification, they generally mean the act of a jury actually believing that the person committed the act, but let them off because they don't think they should be punished for some other reason.
> Juries are generally charged with determining matters of fact; the judge matters of law.
I've always found this deeply troubling. If the law isn't clear enough for 12 jurors to determine if an act was legal, then how is it possibly just to hold the accused liable transgressing it?
I don't see much practical difference between this and ex-post facto laws. In both cases, a person can be convicted for an act that wasn't obviously illegal at the time.
I've always found this deeply troubling. If the law isn't clear enough for 12 jurors to determine if an act was legal, then how is it possibly just to hold the accused liable transgressing it?
I don't see much practical difference between this and ex-post facto laws. In both cases, a person can be convicted for an act that wasn't obviously illegal at the time.
It's not a matter of determining the law; more often than not it's determining who is lying.
Sometimes this is relatively easy ("you left blood with your DNA at the scene") and sometimes hard (you have 3 eyewitnesses, they have 7 people claiming an alibi).
Sometimes this is relatively easy ("you left blood with your DNA at the scene") and sometimes hard (you have 3 eyewitnesses, they have 7 people claiming an alibi).
> Sometimes this is relatively easy ("you left blood with your DNA at the scene")
Not so easy when you realize that DNA labs are shockingly prone to making type II errors.
Not so easy when you realize that DNA labs are shockingly prone to making type II errors.
And other problems with sampling: There’s the famous case of the “Phantom von Heilbronn”, where the same DNA was found on 40 unrelated crime scenes in multiple countries. In the end, it was found to belong to a worker in the factory that made the swabs https://en.m.wikipedia.org/wiki/Phantom_of_Heilbronn
There was hopeless alcoholic in San Hoser who was arrested for murdering a businessman in Palo Alto. Turned out the same paramedic that helped take him to the hospital earlier in the day also was called to the scene of the murder. Some how DNA from hopeless drunk guy ended up under the fingernails of the victim.
It is true.
The only way to preclude jury nullification is to infringe on the rights of the jury as the sole determiners of fact, as you put it.
Without adding another non-jury body that can overrule the jury on what actually happened, how can you ever get rid of the possibility of jury nullification?
The only way to preclude jury nullification is to infringe on the rights of the jury as the sole determiners of fact, as you put it.
Without adding another non-jury body that can overrule the jury on what actually happened, how can you ever get rid of the possibility of jury nullification?
In the US, judges can overturn jury verdicts. That will be appealed to a higher court (which means they need a REALLY good reason to do it).
The most common place for this to happen is in civil court. A jury can come back with "11ty billion dollars" and the judge can decide "Ok, they got a little overzealous with that, $100".
The most common place for this to happen is in civil court. A jury can come back with "11ty billion dollars" and the judge can decide "Ok, they got a little overzealous with that, $100".
Is there a case in the US where a jury found the defendant not guilty in criminal court and the judge overturned that?
The judge can effectively overturn a "guilty" verdict but cannot overturn a "not guilty" because of double-jeopardy (though I suppose a judge could force/rule a mistrial).
juries don't determine damages, only that damages occurred as evidenced. Similarly, jurors don't determine guilt or innocence, but determines whether the presented evidence from both parties are convincing. Judges determine innocence or guilt, and also hands down sentences.
In civil cases, juries often are in charge of determining damages.
So all those movies where juries find the defendant guilty or not guilty are wrong?
> Juries are generally charged with determining matters of fact
If that is axiomatic, it's not the constitution of the US. I don't know about other jurisdictions, but it's silent on the exact duties of a jury.
If that is axiomatic, it's not the constitution of the US. I don't know about other jurisdictions, but it's silent on the exact duties of a jury.
I am not a lawyer, but my understanding is that the idea that juries are for matters of fact comes from English common law. The constitution is a rather barebones framework. There is a lot that it doesn't cover.
I agree with the OP, but also you to some extent. I think juries are a paradox. It doesn't make sense to use them as they're intended. The only way it makes sense is with nullification, in my opinion.
Jury nullification is ignoring the law for any reason. In fact, it seems like the normal, "classical" interpretation is to find not guilty to laws you don't agree with. It's also used for people that did it, but the jury sympathizes with them. Otherwise, it could be they think the penalties are just unfair.
All of these things are jury nullification.
Jury nullification is ignoring the law for any reason. In fact, it seems like the normal, "classical" interpretation is to find not guilty to laws you don't agree with. It's also used for people that did it, but the jury sympathizes with them. Otherwise, it could be they think the penalties are just unfair.
All of these things are jury nullification.
I think the point is that if you're just trying to determine if the letter of a law was violated (and are not concerning yourself with justice), there isn't much reason to believe that a jury of your (untrained) peers is going to better at that job than one (trained) judge (or even a panel of say 3 judges).
The vast majority of juries in the US do not know about nullification nor do they discover it on their own. Unless you are claiming that juries are pointless in almost all cases in the current system, observation suggests that nullification is not a prerequisite to non-pointless juries.
The existence of nullification is the prerequisite (because if it doesn't exist, it means there is a mechanism for overriding/punishing the jury if they "get it wrong" which would undermine the purpose of the jury).
I wonder what portion of jurors know what jury nullification is? I've always thought I could simply utter those words and get out of any jury duty. Not that I would, I would love to serve on a jury.
I also wonder how many HN readers would be allowed on a jury?
I also wonder how many HN readers would be allowed on a jury?
I wasn’t trying to get out jury duty, but knowing my juror rights had me excused.
When the lawyers went around the room asking questions, one of the questions was something along the lines of “will you uphold the law as the judge describes it”. 40 odd people leading up to me all said yes, and then I said “maybe”.
I was asked to step outside to discuss my answer. I pretty much said “I know my rights as a juror and if a law is unjust it’s my duty to say so”. They said I could go home after that.
When the lawyers went around the room asking questions, one of the questions was something along the lines of “will you uphold the law as the judge describes it”. 40 odd people leading up to me all said yes, and then I said “maybe”.
I was asked to step outside to discuss my answer. I pretty much said “I know my rights as a juror and if a law is unjust it’s my duty to say so”. They said I could go home after that.
Surely this defeats the whole point of jury nullification? Yo should have said yes and then voted your conscience no?
Is it perjury to lie in this case?
I guess we could argue back and forth about "will you uphold the law as the judge describes it". Are jurors usually sworn in in courts?
But you're in a very difficult position morally when asked that question (assuming it's for the purpose of removing anyone who will engage in jury nullification). If you actually believe in jury nullification then morally you have to lie right? Otherwise you're allowing someone to override what you consider to be an important civil right. It's no different to someone standing outside a polling booth and refusing entry unless you promised to vote for his candidate: if you actually believe in democracy you need to lie...
To be clear, I am not absolutely convinced by the whole Jury Nullification thing. Obviously it's practically possible but I am not convinced it is a good thing, let alone a civil right or a check on power etc. I am a limey brit and over here we don't "pick" or "disqualify" jurors for better or worse. So aside from knowing people involved in the case, you don't get asked questions like this...
But you're in a very difficult position morally when asked that question (assuming it's for the purpose of removing anyone who will engage in jury nullification). If you actually believe in jury nullification then morally you have to lie right? Otherwise you're allowing someone to override what you consider to be an important civil right. It's no different to someone standing outside a polling booth and refusing entry unless you promised to vote for his candidate: if you actually believe in democracy you need to lie...
To be clear, I am not absolutely convinced by the whole Jury Nullification thing. Obviously it's practically possible but I am not convinced it is a good thing, let alone a civil right or a check on power etc. I am a limey brit and over here we don't "pick" or "disqualify" jurors for better or worse. So aside from knowing people involved in the case, you don't get asked questions like this...
I don't understand what the big deal about perjury is. You have politicians lying under oath all the time and having 0 punishments despite the huge ramifications of those lies. Why should the "small time" liars be punished.
"When bill Clinton lied, no one died"
I don't care if he was guilty of Perjury - his "crime" only hurt Hillary...
I don't care if he was guilty of Perjury - his "crime" only hurt Hillary...
So, it is ok for people to lie in court because politicians do it?
No, but if you only prosecute poor people for it and not politicians, you create an unjust, class-based system where the law is different for different people. Politicians need to be held accountable perhaps more so than average people.
Yes. Politicians are representatives of the people afterall.
I was on a jury when I was young, maybe eighteen, and haven't been on one again. I was disappointed not to get a whodunnit or some complex case.
Instead ,I was on a DUI that resulted in a crash with some extra circumstances. The defense was entirely presented at closing and amounted to the claim that the defendant stopped his car right before the crash, let a hitchhiker take the wheel, the hitchhiker caused the crash, moved the defendant into the driver's seat and belted him in there so that the fire department arrived and photographed the defendant there, and then ran off.
Even if the crazy hitchhiker story were true then the defendant was still admitting to DUI, and, in my mind, being responsible for the crash. It was basically a huge waste of time since all jurors instantly voted to convict.
Instead ,I was on a DUI that resulted in a crash with some extra circumstances. The defense was entirely presented at closing and amounted to the claim that the defendant stopped his car right before the crash, let a hitchhiker take the wheel, the hitchhiker caused the crash, moved the defendant into the driver's seat and belted him in there so that the fire department arrived and photographed the defendant there, and then ran off.
Even if the crazy hitchhiker story were true then the defendant was still admitting to DUI, and, in my mind, being responsible for the crash. It was basically a huge waste of time since all jurors instantly voted to convict.
That's quite a funny story. Was that self-defense? If not, is a lawyer ethically allowed to present such a defense?
Wouldn’t be the dumbest thing I’ve heard out of a lawyer.
I also wonder how many HN readers would be allowed on a jury?
I don't know, but I was selected for a jury once. That said, I did not make any particular effort to get out of serving. I answered the voir dire questions honestly, but didn't go out of my way to volunteer something just because I thought it might get me out of jury duty. For example, I didn't say "I'm a radical Libertarian who considers the State invalid in principle and strongly supports jury nullification." Had I been asked "are you a radical Libertarian who ..." I would have answered "yes", but it never came up. So I tried to be honest and neutral, and in the end they picked me.
The moral of this story? I'm not sure. I will say this though: I learned a lot from the experience. Hopefully I'm never on trial for anything, but if I ever am, I believe my jury experience might actually be helpful to me.
I don't know, but I was selected for a jury once. That said, I did not make any particular effort to get out of serving. I answered the voir dire questions honestly, but didn't go out of my way to volunteer something just because I thought it might get me out of jury duty. For example, I didn't say "I'm a radical Libertarian who considers the State invalid in principle and strongly supports jury nullification." Had I been asked "are you a radical Libertarian who ..." I would have answered "yes", but it never came up. So I tried to be honest and neutral, and in the end they picked me.
The moral of this story? I'm not sure. I will say this though: I learned a lot from the experience. Hopefully I'm never on trial for anything, but if I ever am, I believe my jury experience might actually be helpful to me.
> but it never came up
I laughed out loud at this.
I laughed out loud at this.
Why in the world would HN readers not be eligible to serve on a jury.
I was on a jury trial when a spouse of a prosecutor office employee was allowed on. People drastically overestimate what will get you moved out of the pool.
I was on a jury trial when a spouse of a prosecutor office employee was allowed on. People drastically overestimate what will get you moved out of the pool.
Depends on the case. I served on a jury with a very surprised former deputy US Attorney.
In general, they don’t like technical people on technical cases. My employer is known to pay for jury duty, so I always get picked.
In general, they don’t like technical people on technical cases. My employer is known to pay for jury duty, so I always get picked.
I imagine it being the side that isn't confident in its technical position that doesn't like technical people on juries.
Usually, there's a limited number each side can dismiss without cause. To dismiss more than that, they have to convince the judge that the juror will not honestly decide the case according to the evidence and the law.
Usually, there's a limited number each side can dismiss without cause. To dismiss more than that, they have to convince the judge that the juror will not honestly decide the case according to the evidence and the law.
It’s more that they don’t want specialized knowledge spoiling the deliberation.
If I’m an expert in cellular towers, you don’t want me contradicting the expert on cellular towers testimony on the basis of the magic knowledge that I claim to have.
If I’m an expert in cellular towers, you don’t want me contradicting the expert on cellular towers testimony on the basis of the magic knowledge that I claim to have.
> People drastically overestimate what will get you moved out of the pool.
If you say in voir dire that you wouldn't vote to convict even if the person is guilty, you're not going to get put on a jury.
If you say in voir dire that you wouldn't vote to convict even if the person is guilty, you're not going to get put on a jury.
Sit through jury selection and you'll see people vastly overestimate their ability to convince a prosecutor that they truly believe that.
When I observed jury selection I saw several people back down from stances that were clearly attempts to get kicked off the jury.
It's not like the lawyers ask one question then dismiss you.
I did see one guy who claimed he believed "all courts are invalid" hold up to some pretty intense questioning before getting dismissed. But by the grin on his face I could tell he relished winning that one.
When I observed jury selection I saw several people back down from stances that were clearly attempts to get kicked off the jury.
It's not like the lawyers ask one question then dismiss you.
I did see one guy who claimed he believed "all courts are invalid" hold up to some pretty intense questioning before getting dismissed. But by the grin on his face I could tell he relished winning that one.
I can just picture the wrong judge thinking "Give me a reason. Just one reason...and I'll show you who's valid"
Seemed like the attorneys and judge knew what was up.
The reasons that seemed to get a quick dismissal were people who had been victims of crime in the past, people who had family members who were police officers, lawyers, judges. People who held not uncommon beliefs that would bias them (e.g. "I believe that people of color can't get a fair trial"), but not always if the juror said they could make a decision without that bias clouding their judgement.
The ones that picked extreme beliefs just got more questioning until they either admitted their belief wouldn't cloud their judge or that their belief wasn't so extreme as to bias them.
I mean, the judge and lawyers question people for a living, so they know exactly how to drill down and force an answer out.
The reasons that seemed to get a quick dismissal were people who had been victims of crime in the past, people who had family members who were police officers, lawyers, judges. People who held not uncommon beliefs that would bias them (e.g. "I believe that people of color can't get a fair trial"), but not always if the juror said they could make a decision without that bias clouding their judgement.
The ones that picked extreme beliefs just got more questioning until they either admitted their belief wouldn't cloud their judge or that their belief wasn't so extreme as to bias them.
I mean, the judge and lawyers question people for a living, so they know exactly how to drill down and force an answer out.
On the trial I was on the judge literally said the words “the next person that tries to get out of this jury for bogus reasons is getting cited for contempt”.
No one, not the judge, the prosecutors or the defense want jury selection to take a long time and there are only so many people in the pool to choose from.
That said, on a different trial, a serial killer, it took almost 6 weeks to panel a jury. I was there for a week before being dismissed because I’m morally against the death penalty. Even then the judge interviewed me for 30 minutes on this point, including about my religious upbringing as a child.
No one, not the judge, the prosecutors or the defense want jury selection to take a long time and there are only so many people in the pool to choose from.
That said, on a different trial, a serial killer, it took almost 6 weeks to panel a jury. I was there for a week before being dismissed because I’m morally against the death penalty. Even then the judge interviewed me for 30 minutes on this point, including about my religious upbringing as a child.
No, but you might be put in a jail cell overnight for contempt.
The reason they ask you questions like whether or not you would be able to find someone guilty if you knew they might get sentenced to death isn't because they want to put you in jail overnight. They just don't want you on the jury.
Sure, but that's not the same thing as saying you won't vote to convict under any circumstances.
You can certainly say you won't vote to convinct under any circumstances during voir dire.
It's not illegal in any way. It won't get you thrown in jail for contempt. It is probably protected by the first ammendment to say so. It will get you excluded from the jury.
People do it all the time, in fact.
The exact standard questions asked of jurors in voir dire vary from jurisdiction to jurisdiction, but usually include some variation of if there any religious, philosophical, or ethical reasons you could not convict (or not acquit) generally.
I mean, imagine if you had philosophical, ethical, or reliigous reasons you couldn't convict under any circumstances and you wound up on the jury anyway! If you didn't tell the court this when asked and wound up on the jury cause you lied about it... you probably still wouldn't actually be considered in contempt, but it'd be bad.
It's not illegal in any way. It won't get you thrown in jail for contempt. It is probably protected by the first ammendment to say so. It will get you excluded from the jury.
People do it all the time, in fact.
The exact standard questions asked of jurors in voir dire vary from jurisdiction to jurisdiction, but usually include some variation of if there any religious, philosophical, or ethical reasons you could not convict (or not acquit) generally.
I mean, imagine if you had philosophical, ethical, or reliigous reasons you couldn't convict under any circumstances and you wound up on the jury anyway! If you didn't tell the court this when asked and wound up on the jury cause you lied about it... you probably still wouldn't actually be considered in contempt, but it'd be bad.
I explained I would never impose the death penalty (it was 1st degree murder) and I was excused
I wonder whether that strongly suggests that most people (everyone?) who serves on the jury for a 1st degree murder case then believes the death penalty is just.
My jury was a 1st degree case but the prosecution was not seeking the death penalty and my state has a de facto ban on them.
This is complete BS and I would posit you’re just making things up. Link me to an article about a potential juror spending at least one night in jail due to saying they won’t convict during pre-trial jury selection.
Sure: just search for [voir dire contempt]. The first SERP for me had a law firm page with examples when I looked earlier this evening. I'm not saying it's likely, for what it's worth, but if you lie to avoid jury selection (which is what they're going to think you're doing), it's a possibility.
I got that SERP. The examples are all cases against courts for various violations during _voir dire_. I did not see a single example of a potential juror being jailed for contempt before the trial even started. This isn’t surprising; why would the judge bother holding someone in contempt rather than just moving onto the next potential juror in the pool? It’s not like there is a risk of mistrial from the actions of someone not even participating in it yet.
In reality, I don't think this ever happens unless you had a bad attitude.
My father got himself out of jury duty once by claiming 0 sympathy for people who don't show up to work because they are sick.
He was serious, btw.
He was serious, btw.
I'm a prison abolitionist who believes the police are generally too powerful and have too many incentives to lie under oath. If a lawyer asked me about these things during jury selection I strongly suspect they'd move me out.
Expect to be grilled on this subject, including being asked to cite instances where you’ve taken actions (protested, worked for legislation, volunteered, etc) based on those beliefs.
That may catch someone trying to just bluff their way through things and fumbles on obvious lies, but if you actually believe this kind of thing and still say "nothing" I'm guessing they'll believe.
There are certainly beliefs you can hold that will get you removed. But the courts have heard them all before. Further those beliefs are pretty far out on the scales.
Just saying you don’t trust police isn’t enough.
You are more likely to get kicked off for a specific profession than a stated belief.
Just saying you don’t trust police isn’t enough.
You are more likely to get kicked off for a specific profession than a stated belief.
FWIW, I want to serve on juries. I just know my political beliefs are genuine, sincerely held, and quite leftist for America.
The defendant attorney didn't kick that jury off?
The prosecutors attested that the spouse had not worked on the case or seen any of the evidence or other documentation for it and that was that.
I'm not a US citizen, so that would be a clear no-no.
I served on a grand jury for three months. We listened to police testimony, the DA's office told us the charges, and we voted. Police testimony was all we had to work with when deciding whether or not to indict. It felt like a charade.
I've never been on a jury and live in a country that doesn't have juries at all, as far as I'm aware, but if I lived in the US and served on a jury there, I would never convict solely on police testimony. The police are often not a neutral party. And especially with all the stories of police quotas, extremist groups infiltrating the police, rampant racism in some police departments, and even law enforcement experts telling people to never talk to the police without a lawyer, the US police doesn't come across to me as particularly trustworthy.
Grand juries aren't a real trial. It's a procedural requirement before you federally try somebody for a felony.
https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...
https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...
Sure but that's only the indictment phase. Basically, is there any case here at all. The rest will come out in the trial phase.
I'm not sure why I'm getting multiple replies explaining the purpose of a grand jury when I just said I served on one for three months. I understand the purpose and process more than most here.
Indictment alone is serious business. It is enough to ruin someone's life, and is not to be taken lightly. So when a grand jury is only given police testimony as evidence, that indicates a shortcoming in the system.
Indictment alone is serious business. It is enough to ruin someone's life, and is not to be taken lightly. So when a grand jury is only given police testimony as evidence, that indicates a shortcoming in the system.
The grand jury and the jury for trial are different things.
> I also wonder how many HN readers would be allowed on a jury?
I served on a jury. Can’t imagine why any given HN user wouldn’t be allowed…
I served on a jury. Can’t imagine why any given HN user wouldn’t be allowed…
There's stereotype that neither prosecuters nor defense attorneys(ies?) want critical thinkers on the jury. Limits their powers of influence.
But in the end, they only get a fixed number of preemptory challenges. (Over their unlimited number of “excused for cause” because even the judge agrees. ) I served on a jury once because the prosecutor rolled the dice on his last preemptory, knowing he would be stuck with whatever clown was next in line. I was that clown.
What is interesting is I have sever lawyers in my family. Criminal, corporate, and otherwise. All do trial work.
They all say no matter how many test juries (their clients sometimes actually pay for them to try out arguments on a group of people), or how much jury study they do…. it is hard to predict how a juror will act / be influenced based on demographics.
My limited experience was similar, folks were not super predictable.
They all say no matter how many test juries (their clients sometimes actually pay for them to try out arguments on a group of people), or how much jury study they do…. it is hard to predict how a juror will act / be influenced based on demographics.
My limited experience was similar, folks were not super predictable.
HN readers should be perfect jury members then.
> I also wonder how many HN readers would be allowed on a jury?
Most of them.
Most of them.
[deleted]
> he was in violation of a New York law barring people from standing within 200 feet of a courthouse "calling for or demanding any specified action or determination by such court or jury"
Simiarly: https://www.reuters.com/article/us-usa-court-abortion-zones/...
Simiarly: https://www.reuters.com/article/us-usa-court-abortion-zones/...
Someone told me that knowing what jury nullification is can get you out of jury duty, because if the attorneys find out you know what it is during the jury selection process, they won't want you on the jury. I don't know if that's true though.
Don’t try to get out of jury duty. Someone’s life is on the line. Suck it up and do your civic duty.
I believe jury duty is an awful way to decide justice and it shouldn't exist. Other countries manage without it just fine. In my opinion it's your civic duty to get out of it and not support it.
Demand for being judged by one's peers is Magna Carta level stuff, and it's also in the American constitution, so people clearly cared about it for centuries. You can see why in principle: the judge is a government official, and with your peers you should have more room for maneuver. I don't think that ensuring that judges are impartial and actually apply law is a solved problem at all. That "other countries manage without it just fine" is a big assumption, ignoring possible corruption and any number of pathologies.
I live in a no jury country and I would probably feel a tiny bit safer with a jury of my peers, even being aware that this also has plenty of flaws. (That being said, I do prefer European inquisitorial system of justice over the adversarial one -- the latter is present in Anglophone countries and prefers reaching a decision over establishing the truth of the matter.) Even in Poland, the hamfisted "reform" of justice that is fought over with the EU does have some nuance to it. The government wants to control the judges, which is obviously against any sane separation of powers, but the public perception is that the previous system of judge corporations was also corrupt.
I do think, at the face of it, that all jurors should be made aware about nullification.
I live in a no jury country and I would probably feel a tiny bit safer with a jury of my peers, even being aware that this also has plenty of flaws. (That being said, I do prefer European inquisitorial system of justice over the adversarial one -- the latter is present in Anglophone countries and prefers reaching a decision over establishing the truth of the matter.) Even in Poland, the hamfisted "reform" of justice that is fought over with the EU does have some nuance to it. The government wants to control the judges, which is obviously against any sane separation of powers, but the public perception is that the previous system of judge corporations was also corrupt.
I do think, at the face of it, that all jurors should be made aware about nullification.
I believe that you likely came to the conclusion that most suited what you wanted to do.
What does that mean? I'm not exactly aiming to be tried in court any time soon.
I think you decided that you didn't want to do jury duty before you decided that trying to get out of jury duty is some moral obligation.
Where I'm from there are no jury duties, so this is my opinion on juries from the outside perspective.
But also, even if I did it the way you say - does that....make the reasoning any less powerful in your mind?
For instance, I decided I don't want to smoke long before I was mature enough to formulate an argument why smoking is bad for an individual and for the society and before I could see how the tabbaco industry is spending heavily on getting people to smoke.
Is the fact that I decided I don't want to smoke at the age of 15 making the argument I can finely flesh out decades later less powerful in your opinion? Or are you just using it as a logical instrument to undermine what I'm saying based not on a logical point but rather an emotional one?
But also, even if I did it the way you say - does that....make the reasoning any less powerful in your mind?
For instance, I decided I don't want to smoke long before I was mature enough to formulate an argument why smoking is bad for an individual and for the society and before I could see how the tabbaco industry is spending heavily on getting people to smoke.
Is the fact that I decided I don't want to smoke at the age of 15 making the argument I can finely flesh out decades later less powerful in your opinion? Or are you just using it as a logical instrument to undermine what I'm saying based not on a logical point but rather an emotional one?
Examples of other countries that don't use jury systems and have better outcomes?
Netherland, for example. There's probably no shortage of other examples. From what I understand, most civil law systems do not rely on juries, or to a much lesser extent than common law systems tend to do. But even many common law countries rely a lot less on juries than the US does, and often with better results than the US with its frequently blatantly racist/classist verdicts.
The big problem with juries is that guilt is determined by a random cross section of the population in that area, and if certain prejudices are common in the population in that area, those prejudices will influence the verdict. For example, black people are more likely to be found guilty in racist areas, and white people less so.
Of course judges can also be subject to prejudice, but it's a lot easier to train them out of those prejudices and hold them accountable for them, because it's a much smaller group that requires special training.
The big problem with juries is that guilt is determined by a random cross section of the population in that area, and if certain prejudices are common in the population in that area, those prejudices will influence the verdict. For example, black people are more likely to be found guilty in racist areas, and white people less so.
Of course judges can also be subject to prejudice, but it's a lot easier to train them out of those prejudices and hold them accountable for them, because it's a much smaller group that requires special training.
The defendant in the US has the choice of a jury trial or a bench trial. It is not a requirement. The latter has no jury, only a judge. If the defendant chooses a jury trial obviously they think that’s going to have a better outcome for them.
If a verdict is “blatantly” classist or racist, there may be more going on than you’ve read about the case. This is pretty common, US journalism is not great and when cases get reported internationally it usually gets even worse.
If a verdict is “blatantly” classist or racist, there may be more going on than you’ve read about the case. This is pretty common, US journalism is not great and when cases get reported internationally it usually gets even worse.
Systems where taking a plea deal or settling out of court is not the preferred method of ending a trial because both sides distrust the system.
Most EU countries don't use juries, or only use them for the worst crimes(rape/murder) and only in very narrow set of circumstances.
"and have better outcomes?"
Honesly I have no idea how you'd define what is a "better" outcome.
"and have better outcomes?"
Honesly I have no idea how you'd define what is a "better" outcome.
> Honesly I have no idea how you'd define what is a "better" outcome.
I think less blatant racism or classism in the verdicts would be better. In the US there's no shortage of examples of poor people of colour getting far more severe punishments for crimes for which rich white people get minor punishment or barely a slap on the wrist.
I think less blatant racism or classism in the verdicts would be better. In the US there's no shortage of examples of poor people of colour getting far more severe punishments for crimes for which rich white people get minor punishment or barely a slap on the wrist.
Europe is also super racist, they just don't have sizable black populations.
Anecdotally, I have witnessed Europeans saying much more casually racist things than coastal Americans.
Anecdotally, I have witnessed Europeans saying much more casually racist things than coastal Americans.
Europe is nowhere near as homogeneous as the USA. People from New York speak the same language (in general) as those from California and subscribe to the same cultural ethos (to a degrees). The difference between France and Lithuania in terms of Language is huge, and similarly so is their cultural heritage.
As far as I know vast majority of countries in Europe don't use a jury system and are doing quite fine. Which was what GP stated, that they are managing quite fine without it. Not that they have better outcomes.
Not sure how you'd define a metric for "better outcome" to be honest
tehwebguy(3)
"Don’t try to get out of jury duty."
My mother was a court stenographer. She had a job in a small court once in nowhere northern california. They had a few jurors skip out of jury duty. The judge told the bailiff walk outside get 2 random people. Sure enough, there was a chef wearing a uniform and some construction worker. BAM. The court is ready.
My mother was a court stenographer. She had a job in a small court once in nowhere northern california. They had a few jurors skip out of jury duty. The judge told the bailiff walk outside get 2 random people. Sure enough, there was a chef wearing a uniform and some construction worker. BAM. The court is ready.
That's only true in some cases. What about when it's a frivolous civil liability suit, e.g. a slip and fall case. Is there a moral duty to participate in that?
How do you know whether the case is frivolous before it's even been tried?
The court for me is 40 minutes away. They make you park in a parking lot down town that isn't safe and you have to walk or take some shuttle to the courthouse. Can't take my gun with me for obvious reasons. Spend my gas getting there. Then if the parking lot gets full I have to pay for parking as well. All for me to be sent home because I know what jury nullification is, don't believe prostitution is a crime, or minor drug charges. But yeah, tell me more to suck it up.
You get compensated for your jury duty - not well compensated, but enough to cover gas for sure. The rest of your whining is likely just as factually false - get over yourself.
What do I gain from lying? I get paid $6 for each day of jury duty. It's 50 miles round trip per day. Depending on traffic that does not cover my gas. Your comment adds nothing to this discussion.
When did I accuse you of lying?
Prosecutors will probably try to strike you for cause.
Has there ever been a case where a jury has actually “invoked” nullification? I put quotes because a jury wouldn’t directly invoke nullification, they would just present a finding clearly contrary to the evidence. Follow up question, does a jury have to provide any reasoning for their finding? Or just the finding itself?
[deleted]
In the UK jury nullification came into the spotlight at the beginning of this year when four people who helped topple a statue of a slave trader in Bristol were found not guilty by a jury, even though they admitted doing so and there was video & photo evidence. The jury decided that they had acceptable reasons for their actions. [1]
The reaction from the right wing government and its supporters was barely short of apoplexy, followed by promises to appeal the verdict and change the law to remove this as an option for juries. (So far I don't believe any such legal changes have been made.)
Jury nullification is one of the strengths of the jury system, allowing a representation of the public decide if an act was truly criminal, and should be protected, otherwise it's just 12 people following a decision tree and no better than trial by judge.
[1] https://www.theguardian.com/uk-news/2022/jan/05/four-cleared...
The reaction from the right wing government and its supporters was barely short of apoplexy, followed by promises to appeal the verdict and change the law to remove this as an option for juries. (So far I don't believe any such legal changes have been made.)
Jury nullification is one of the strengths of the jury system, allowing a representation of the public decide if an act was truly criminal, and should be protected, otherwise it's just 12 people following a decision tree and no better than trial by judge.
[1] https://www.theguardian.com/uk-news/2022/jan/05/four-cleared...
The Bristol Four acquittal was not an act of jury nullification.
Under the Criminal Damage Act 1971, no offense is committed if there is a "lawful excuse" for the damage.
The defence argued that there was a lawful excuse on several grounds:
1. The defendants believed they were preventing a more serious crime (public indecency because of the statue's offensiveness).
2. The defendants believed the statue was owned by the citizens of Bristol (as stated on its plaque), who they believe consented to its removal.
3. Their right to freedom of expression and assembly under the European Convention on Human Rights.
The judge instructed the jury that they were allowed to consider questions such as the statue's offensiveness in deciding whether these excuses applied.
Under the Criminal Damage Act 1971, no offense is committed if there is a "lawful excuse" for the damage.
The defence argued that there was a lawful excuse on several grounds:
1. The defendants believed they were preventing a more serious crime (public indecency because of the statue's offensiveness).
2. The defendants believed the statue was owned by the citizens of Bristol (as stated on its plaque), who they believe consented to its removal.
3. Their right to freedom of expression and assembly under the European Convention on Human Rights.
The judge instructed the jury that they were allowed to consider questions such as the statue's offensiveness in deciding whether these excuses applied.
Huh? I had no idea the UK had juries. I live in a former colony where we don't have juries and just assumed the same would be true of the UK.
Juries originated in UK common law, the US mostly inherited the idea from there.
> Jury nullification is one of the strengths of the jury system
I personally find jury nullification as the ultimate form of democracy.
I personally find jury nullification as the ultimate form of democracy.
I'm not sure it's democratic when 12 people can override the laws created by the representatives of millions, but it certainly is a hedge against tyranny.
"Picard says he'll be back to his advocacy now that the case has concluded, though it remains to be seen how the government will answer the above questions."
Hero.
Hero.
The jury's task in a criminal trial is to determine guilt or innocence based on the uncontested facts and the evidence (In the USA, I gather they can also recommend a verdict). That doesn't leave a lot of room for the jury to decide which laws ought to be enforced.
I suppose it's reasonable for a jury to decide that a prosecution should not have been brought, even if the criminal act can be shown to have occurred. I don't know what other body is in a position to make that determination, so I guess that in some kind of "natural law" view, returning an innocent verdict when the facts say guilty, is morally permissible.
But I'm not OK with juries deciding what the law is, or just completely ignoring the law. My experience (IANAL) is that jurors are interested in the judicial process, assess evidence carefully, and try hard to return a "correct" verdict.
I haven't served on a real jury; I did serve on a mock jury, in a mock trial for training advocates (barristers). It was a date-rape trial, and the "evidence" was equivocal. Interestingly, although all the jurors were sincere and honourable, the jury split male/female on the verdict (I'm a male, and I came down on the male side of the split).
I suppose it's reasonable for a jury to decide that a prosecution should not have been brought, even if the criminal act can be shown to have occurred. I don't know what other body is in a position to make that determination, so I guess that in some kind of "natural law" view, returning an innocent verdict when the facts say guilty, is morally permissible.
But I'm not OK with juries deciding what the law is, or just completely ignoring the law. My experience (IANAL) is that jurors are interested in the judicial process, assess evidence carefully, and try hard to return a "correct" verdict.
I haven't served on a real jury; I did serve on a mock jury, in a mock trial for training advocates (barristers). It was a date-rape trial, and the "evidence" was equivocal. Interestingly, although all the jurors were sincere and honourable, the jury split male/female on the verdict (I'm a male, and I came down on the male side of the split).
What is even the point of a jury composed of laymen if their only task is to decipher if a law has been broken? Surely at that point you'd only want lawyers, as in, people with a professional understanding of the law.
As I understand it, juries explicitly decide whether the law has been broken purely on the basis of what they determine the facts to be. The system is explicitly set up so that no specialist legal knowledge is required - the jury instructions from the court will be along the lines of "if you decide that things x, y & z are true, then you must convict".
Juries are finders of fact - that is, when Bob says one thing, and Bill says another thing, it is the jury's job to decide who to believe.
Lawyers instruct juries on the law - "If you believe Bob's account (or, typically, something a bit more specific), then Bill is, by law, guilty of XYZ."
Lawyers instruct juries on the law - "If you believe Bob's account (or, typically, something a bit more specific), then Bill is, by law, guilty of XYZ."
> Juries are finders of fact
There are "facts" and facts. The undisputed facts are those where both parties "stipulate" - neither party intends to adduce evidence that the claim is false. Juries aren't at liberty to make up their own minds about facts that haven't been disputed.
It's the disputed "facts" that juries weigh - that is, the evidence and testimony.
> Lawyers instruct juries on the law
That's rather slippery; I think that technically, the lawyers are "servants of the court", so they really instruct the court on the law. And "the court" means the judge. The judge then instructs the jury on the law.
But in fact, these lawyers are advocates; their business is to expose those parts of the law and the evidence that are advantageous to their client, and damaging to their adversary. It's not reasonable to assume that the judge is unbiased (any more than the advocates).
There are "facts" and facts. The undisputed facts are those where both parties "stipulate" - neither party intends to adduce evidence that the claim is false. Juries aren't at liberty to make up their own minds about facts that haven't been disputed.
It's the disputed "facts" that juries weigh - that is, the evidence and testimony.
> Lawyers instruct juries on the law
That's rather slippery; I think that technically, the lawyers are "servants of the court", so they really instruct the court on the law. And "the court" means the judge. The judge then instructs the jury on the law.
But in fact, these lawyers are advocates; their business is to expose those parts of the law and the evidence that are advantageous to their client, and damaging to their adversary. It's not reasonable to assume that the judge is unbiased (any more than the advocates).
The task of the jury is the interpretation of the various evidence to decide the facts of the case. The task of the lawyers is to present the evidence. The task of the judge is to decide the law of the case.
> The task of the judge is to decide the law of the case.
I don't think that's right.
You express that as if "the law" is always clear and uncontestable. Reality is the opposite; few laws are drafted to be clear and uncontestable.
The task of the judge is to administer the case. He/she decides what evidence is admissible, what utterances by the advocates are forbidden/permissible and so on. The advocates and the judge may have three different opinions about what the law is, and so it becomes a question for the jury.
So the judge is the authority on the law concerning how cases may be conducted; but not on other legal specialties.
I don't think that's right.
You express that as if "the law" is always clear and uncontestable. Reality is the opposite; few laws are drafted to be clear and uncontestable.
The task of the judge is to administer the case. He/she decides what evidence is admissible, what utterances by the advocates are forbidden/permissible and so on. The advocates and the judge may have three different opinions about what the law is, and so it becomes a question for the jury.
So the judge is the authority on the law concerning how cases may be conducted; but not on other legal specialties.
Funnily enough, the lawyers present in the courtroom routinely arrive at a disagreement on this point. For some mysterious reason, the lawyers hired by the accused will routinely find that no law was broken, whereas the lawyers hired by the accuser will routinely find that laws had been broken. So perhaps your suggestion of lawyers deciding on verdict has some issues?
>So perhaps your suggestion of lawyers deciding on verdict has some issues?
As far as I know, bench trials are successfully conducted throughout the world.
As far as I know, bench trials are successfully conducted throughout the world.
> bench trials are successfully conducted throughout the world
True, for some value of "successful". A bench trial is much cheaper than a jury trial, and is much less likely to come up with the "wrong" verdict. Bench trials are characteristic of justice in authoritarian countries.
True, for some value of "successful". A bench trial is much cheaper than a jury trial, and is much less likely to come up with the "wrong" verdict. Bench trials are characteristic of justice in authoritarian countries.
You're correct. I tried to make a point but I went too far with it.
The jury's main task is to weigh the testimony of witnesses, I guess. That's not a technical matter, for lawyers to evaluate; it's a question of whether a witness is reliable, which is a judgement. I don't see why a trained lawyer is going to be better at that than a layman.
Because there's an old convention that then got written on a paper, that now says "a jury of your peers".
In terms of end-to-end "justice system" problems the inefficiency of a jury is a small problem. (As most cases never even see a courtroom. In criminal cases due to plea deals, in civil cases due to settlement, etc.)
Technically anything can be interpreted in two different ways by two people, so even if the judge gives very precise instructions to the jury, they still have a lot of freedom. (And this led to finding murderers not guilty, because the victim was black.) But a bunch of lawyers can be racist too, so that wouldn't have helped much.
In terms of end-to-end "justice system" problems the inefficiency of a jury is a small problem. (As most cases never even see a courtroom. In criminal cases due to plea deals, in civil cases due to settlement, etc.)
Technically anything can be interpreted in two different ways by two people, so even if the judge gives very precise instructions to the jury, they still have a lot of freedom. (And this led to finding murderers not guilty, because the victim was black.) But a bunch of lawyers can be racist too, so that wouldn't have helped much.
> an old convention that then got written on a paper
That would be Magna Carta, I think. The word you're looking for is "parchment", not "paper". When it was drafted, it wasn't an "old convention" - it was an innovation.
That would be Magna Carta, I think. The word you're looking for is "parchment", not "paper". When it was drafted, it wasn't an "old convention" - it was an innovation.
I was thinking about the US constitution, as the convention was already old by then. Of course it's much better than having the local lord be the judge.
https://www.law.cornell.edu/constitution/sixth_amendment
https://www.law.cornell.edu/constitution/sixth_amendment
Seems pretty reasonable result as he wasn’t targeting a specific case.
I do think fans of jury nullification overestimate how much juries would be interested in such things.
I do think fans of jury nullification overestimate how much juries would be interested in such things.
It doesn’t have to be the entire jury, one juror can hang everything.
That isn't the same thing. Nullification is when the ENTIRE jury votes not guilty, producing an acquittal and double jeopardy protection for the accused.
I disagree. Jury nullification sounds plural, but a single juror can nullify everything; I’m voting this way because I think the law is wrong.
That decision has nullified the process, and could lead to a hung jury. Or that one person could convince everyone else. I think you might be confusing the hole with the part, and not grasping the power of a single juror.
That decision has nullified the process, and could lead to a hung jury. Or that one person could convince everyone else. I think you might be confusing the hole with the part, and not grasping the power of a single juror.
A single juror cannot nullify - they can cause a hung jury which then results in a retrial, where it is mostly likely not going to contain a juror that advocates for jury nullification. If you cannot create consensus to nullify then you're most likely just wasting time and money of everyone involved and clogging up the legal system for other people who have a right to speedy trials
Wasting whose time? Each juror is supposed to decide based on a reasonable doubt, if someone comes in there and says look I think the crime is wrong, and I think this person should Have this verdict, and I’m going to vote that way, if no one goes along with you fine. If they do great, if they don’t, then you have a hung jury. Either way that single person has nullified the verdict. Thus a mistrial.
If anything, the government waste the time of people by bringing cases that should never have been brought to begin with.
If anything, the government waste the time of people by bringing cases that should never have been brought to begin with.
Perhaps a proper addressing of "Should this law be a law?" be considered, before the case is presented?
That way, the jury can decide, without any evidence, if a law is just. And that should be with as many biases removed, including things like sex, gender, skin color, clothing, etc.
There's always a disconnect in republics between the populace and the representatives. Reps may pass laws the populace doesn't want, and the reps say "we know your best interest". And, getting laws to legalize illegal things usually end up in its own malthusian trap of "politician is soft on crime!"
That way, the jury can decide, without any evidence, if a law is just. And that should be with as many biases removed, including things like sex, gender, skin color, clothing, etc.
There's always a disconnect in republics between the populace and the representatives. Reps may pass laws the populace doesn't want, and the reps say "we know your best interest". And, getting laws to legalize illegal things usually end up in its own malthusian trap of "politician is soft on crime!"
What most people overlook when considering the power of jury nullification is that like almost all other powers of participants in our legal system there needs to be checks and balances.
The check and balance on jury nullification is not telling people that it exists. Yes, it is a pretty crappy check and balance, but no one has been able to come up with a better one.
The check and balance on jury nullification is not telling people that it exists. Yes, it is a pretty crappy check and balance, but no one has been able to come up with a better one.
The article omits that it was the ACLU who filed the lawsuit on Picard's behalf: https://www.aclu.org/cases/picard-v-magliano
Does the door open to the other side, which is an all-white jury finding Ruben Carter guilty?
Yes but a judge can overrule it. A judge cannot however overrule a not-guilty verdict and find the defendant guilty.
A jury is not required to explain the reasons for their verdict. In many, probably most, cases the judge won't be able to tell that the jury convicted for improper reasons.
Many apparently don't; there are lots of examples of defendants of colour getting convicted in cases where white defendants get acquitted or receive a very light sentence.
Are the cases the same, or just the charges? Why did the defendant choose a jury trial as opposed to a bench trial if they believed the jury was going to be racist? What was the racial composition of the jury in both cases?
The story is usually a lot more complicated.
There also reverse cases of this too, because high-profile cases are usually dealt with more severely, not because of race. For example, a cop in Florida killed a 36 year old white man in very similar circumstances to George Floyd, and got off scot-free. So for better or worse, notoriety also comes into play.
The story is usually a lot more complicated.
There also reverse cases of this too, because high-profile cases are usually dealt with more severely, not because of race. For example, a cop in Florida killed a 36 year old white man in very similar circumstances to George Floyd, and got off scot-free. So for better or worse, notoriety also comes into play.
A useful asymmetry. Thanks.
There is also the other-other side, where a white jury finds a klansman innocent of lynching etc.
phew that was a close one
Now, we need to pay attention to Presidents, DoJ Attorneys, and District Attorneys who pick and choose which laws to enforce, based upon their politics. It's interesting how they aren't getting charged for those actions.