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July 21, 2026
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Jill Pyeatt is a small-business owner and jewelry designer from Southern California. She currently serves on the Judicial Committee of the Libertarian Party of CA. She can be found on Facebook and Twitter.
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Randy,
Paranoia will destroy ya.
Andy’s getting my message. Mr. Capozzi has plenty of time to ask questions, but that seems to be about all he does. I don’t usually spend time with him, actually.
Capozzi is an inside the beltway guy with a pretty vague career and no apparent shortage of either money or time. What does he do for a living, again?
“Robert Capozzi November 15, 2013 at 10:14 pm
JP: What types of activism do you recommend?
Me: Nothing in particular.”
Why am I not surprised?
If you don’t make jury nullification your personal #1 priority, you are probably a government plant.
JP: What types of activism do you recommend?
Me: Nothing in particular. I happen to believe that the truth will set you free, so I’d say figure out what’s true for you. That, I suggest, is a lifelong endeavor….
The Doctor has bigger fish to fry. After all, billions of lives are at stake!
I’ve been waiting for Dr. Stevens to take credit for all the people your state elected to office, but I haven’t seen it. Maybe he’s chilling a litle!
Do you think the situation is so critical that it requires the Doctor?
Wow, 82 Comments. Let’s get Doctor Tom Stevens in here.
Great idea! We’ll do that.
JN, quickest path? I don’t know if anyone said that. One of the best tools available? I’ll certainly agree with that. As far as your last sentence, I agree, most people don’t know about this wonderful capability juries have. Many of us in the liberty movement would like to share the knowledge. Most of us have other areas of activism as well.
What types of activism do you recommend?
How to do Jury Rights Activism without Getting Arrested feat. Jake Witmer (Part 4) – Interviewed by George Donnelly
http://www.youtube.com/watch?v=mkmogm_l1AQ
JP, no, I’m not an engineer. Rothbard and other alleged “radical” Ls are not truly radical, as their foundational assumptions are false. They offered a blue pill that they BELIEVED was red!
If you really believe that JN is the quickest path toward liberty, then by all means promote it. To me, it’s one of the slowest paths, and seems highly inefficient in maximzing wholesale individual liberty. I agree it feels good to get a few people off from unjust prosecutions, but it seems like an oblique, indirect approach to challenging the prevalent legal regime.
ATC, JN is not the path of least resistance, which generally is the best way to go. I’d be VERY surprised if the average person thinks that juries are the best means to undo dysfunctional laws. If you ask the average person: Do you think juries should be empowered to overturn laws?, my guess is most would say No…by wide margins.
It’s pretty much an infinite loop of questions all the way down 🙂
I guess I’m using a different definition of what a radical Libertarian is, Robert. To you, a radical Libertarian is someone who asks questions? Well, I’ve certainly asked a lot of questions, but at one point I try to accept that there will be propblems pop up here and there, and I try not to worry about things beforehand. Are you an engineer? With all due respect to Steve M and my husband Alan, my experience with engineers is that they tend to ask a whole lot of “what if” questions before jumping into something.
pf, “codified” to me would mean that jury instructions would include the power of the conscripts to nullify the law in question.
jp and pf, p is correct. I call myself a L and a radical, but NOT a “radical L.” Radical Ls don’t seem “radical” to me, as they don’t seem willing to engage the root questions.
Or, as the Heads counseled, to pull up the roots.
http://www.youtube.com/watch?v=wqU4dTMyfFg
“Everything has been forgiven.”
Cool!
It’s not underground and it is codified, as Jim Babb pointed out.
Well that’s a difference between us.
Awesome! I like that, you know.
He’s not radical in the sense of being extreme, but in the sense of questioning the assumptions of….libertarians, mostly, as far as I can tell.
And everyone else!
With all due respect, Robert Capozzi, I’ve certainly never seen anything from you that makes my think you’re a radical Libertarian. Interesting. Anyway, I found this video today. I’m with James Babb, Paulie and Andy: I think jury nullification is an extraordinary tool that should be talked about by everyone in the liberty movement.
http://youtu.be/mxYUr6CNopQ
a, a radical is always willing to check his or her premises. I sometimes get the sense that you are afraid to do so. That you seem offended by my mere asking of questions, of challenging your approach, methodology, and conclusions. Am I incorrect?
pf and a, just so y’all know, were I conscripted onto a jury and I felt the law was unjust, I’d personally be inclined to nullify.
Whether it’s worthy of creating an underground legal system to counter the codified one, dunno. I’m generally not big on guerilla efforts, but that ‘s a point of feedback, not criticism, per se.
Of course, as you know, I’m concerned with the L brand in the public square. Because – I believe – fundamental errors were made in the foundation, we see wacko positions held by well-meaning Ls. We see bizarre and widely offensive POVs like those held by the neo-Confederate Ls.
JN is not one of the wacko or offensive issues in my view. It does have a V for Vendetta flavor, though. If there were not a long list of wacko issues coming out of the L collective, I’d be less concerned about JN as potentially brand damaging and time wasting.
I don’t think we’ll be deterred by any such criticism.
Robert Capozzi said: “I certainly don’t argue against checks and balances…I favor more of them. JN seems like a weak one, fraught with downsides. But if you can get millions spun up for a better test, I will wait patiently to see the results.
I kinda doubt you’d be successful, as the issue has a quaint, 18th century feel about it to me.”
Then you don’t have to take part in the spreading of information about the right of jury nullification. People like myself, Paul, Jake Witmer, James Babb, and Jilll Pyeatt will continue to work to spread the message, and you can continue to sit on the side lines and do whatever it is you do (which appears to be posting messages online criticizing those who are actually trying to build the pro-liberty movement).
My statement does not rely on what states instruct. Knowledge of jury nullification rights can spread without state instructions.
In fact, it is already spreading in regards to the drug war, although still a ways from critical mass.
pf, I see no evidence that JN’s “time has come.” Care to make a wager? Structuring something may be difficult, but how”s this feel? By Jan 1, 2024, no more than two states will have instructions for jurors that they may nullify unjust laws, or words to that effect?
I don’t see the downsides. Or the weakness. Seems like a vital, overlooked right of the people that we should be focusing on a lot more to me.
It’s an idea whose time has come again.
It’s one of many sources cited by wikipedia which all pretty much conclude the same thing, that polygraphs are not reliable.
Doug Stanhope on Jury Nullification:
http://www.youtube.com/watch?v=1k4fYIUuAP8
PF, the NAS, really?
“Established by an Act of Congress, signed by President Abraham Lincoln in 1863, the NAS is charged with providing independent, objective advice to the nation on matters related to science and technology.”
Has it come to this? Deferring to statist organizations created by LINCOLN? What would Lew say? 😉
I certainly don’t argue against checks and balances…I favor more of them. JN seems like a weak one, fraught with downsides. But if you can get millions spun up for a better test, I will wait patiently to see the results.
I kinda doubt you’d be successful, as the issue has a quaint, 18th century feel about it to me.
Good! We need it in every state.
wikipedia says:
RC:
Even if there were no question of the reliability of polygraphs, you would be talking to a population of people with a below average capacity for empathy.
Only in those who have one. But then those people are underrepresented in the professions you are discussing.
“Professional courtesy”?
I found this on FB today:
http://nhjury.com/
PF, Gordon Tullock didn’t agree that polygraphs are especally unreliable. But I’d simply want to ask them all: Do you think you are doing the right thing here? Or, if the situation were reversed, is this how you’d want to be treated?
People can rationalize lots of things when rules are involved, but I find going back to square one — the conscience — is most fruitful. As you know, I am the ultimate radical! 😉 The polygraph makes deflecting and dissembling more difficult.
As for opponents to JN, you might ask Dan Grow, Rothbardian JD from MI. IIRC he opposed JN, at least during the platcomm I was on for a time. He didn’t fight as hard against JN in the platform as he did to keep the private nukes clause in the platform, but as a juris doctor he seemed very uncomfortable with JN, at minimum.
Ideally, yes. Practically, many “laws” are passes which are themselves inappropriate. Jury nullification has a long history as one of the most effective ways to combat such inappropriate laws.
I’m not sure they are. In a competitive legal system it’s certainly plausible, even likely, that there would be juries.
Plenty of juries dealt with that complexity just fine. I’d rather have that than a bunch of people who feel they have no choice but to convict someone for violating an unjust law.
You write as if we’ve never had a historical example of a time when most people were aware of this right. In John Peter Zenger’s time it received a great deal of publicity, and I would imagine it led to common knowledge of the right of juries to judge the law as well as the facts. I’m not aware of it having led to any kind of chaos, though. The fear seems more than a little overblown.
It empowers individual citizens to make policy changes even in the absence of a political mechanism of winning a majority or plurality.
That would also be good, but it wouldn’t help someone who is indisputably guilty of violating a “law” that shouldn’t exist at all.
Polygraphs are notoriously unreliable, which is why they are not considered admissible as evidence. Even if they were completely reliable, it still wouldn’t do anything to help someone who is indisputably guilty of violating a “law” that shouldn’t exist at all.
Ask the people who oppose it so apopletically why it drives them nuts.
PF: So then by definition it’s better.
Me: Yes, in that case it’s better. But that’s the thing with institutional arrangments designed for maintaining domestic tranquility….lovely as it is to imagine personalized law, law should be there to signal inappropriate behavior, and to provide for mechanisms to enforce such standards.
If juries (a statist, legal contrivance, for sure) were always informed that they may consider the facts and evidence AND the law itself, that is adding a monumental level of complexity to the deliberations. Yep, that might work just grandly. OR, it might create profound levels of chaos.
But I’d ask: Why jury nullification? Why not agitate for a wholesale reform of the rules of evidence? Why not polygraph the cops, prosecutors, judges, legislators and executives? What is it that’s so magicaly about JN?
I don’t see how it wouldn’t be better. It certainly can’t be worse.
So then by definition it’s better.
Again, those cases are not jury nullification. Jury nullification are cases where a jury judges the law that the accused is being tried on to be wrong and thus finds the person not guilty, even though they have no doubt that the person did what they are accused of.
You are talking about cases where a jury sets free someone who is accused of a crime because the jury likes this person and/or dislikes the person who is the victim of the crime (or class of people the victim belongs to). However, that is not jury nullification. The jury in such cases is making no statement about the law per se.
And, again, such miscarriages of justice are in no way limited to jury trials.
Yes. If 3-4% of drug prosecutions are already being nullified now, even though by far most jurors don’t even know about jury nullification rights,
that would seem to me that if most people knew about it the drug war would effectively be over. And unlike electoral political victory, we don’t have to wait until we can get 50% or 34% of the vote to achieve results.
Because as increasing numbers of, say, drug law prosecutions get nullified, prosecutors will be more likely to not want to waste time and effort trying such cases, which would in turn lead to police being less likely to arrest someone who can’t be convicted and may well eventually play a large role in ending prohibition altogether, as it did with alcohol. Even if the law remains on the books, if no one is enforcing it, its damage is mitigated.
It’s rare because most people don’t know about it. If we make more people aware of it, it won’t be so rare. The less rare it becomes the more people hear about it.
PF, thanks for your perspective. Perhaps you’ll find this useful in thinking about this matter: There are 3 forms of injustice that seem appropriate:
1. Unjust laws
2. Unjust prosecution of these laws
3. Incorrect outcomes in a legal proceeding.
All 3 are sub-optimal although I would maintain unavoidable, as perfection in human intercourse seems impossible, if for no other reason than the fact that “injustice” is subjective. JN may or may not be better than NO JN for the cases of 1 and 2. I know no way to empirically prove either case.
JN certainly SOMETIMES works to undo 1 and 2. However, it also sometimes leads to unjust outcomes, allows a person who does a wrong free, possibly to repeat his or her dysfunctional behavior.
I think we agree here.
As a political matter, is JN SO effective in remedying 1 and 2 that it should be a major focus of L political action. Looks like a NO to me, since I don’t see how it could possibly work to topple institutional 1s and 2s. Given its rarity, I find JN a very low priority matter, even if it would be a most minor net plus. Yes, if 10 people a year are prosecuted for victimless crime laws but are found not guilty by a nullifying jury, that’s great. However, I don’t see the rewards of this worth the effort from an opportunity cost perspective.
Ba’athism may be just around the corner in the US, but I’d think that focusing on the larger risks with impactful undoing activities seems a more profitable path forward.
I’m aware that they involved no cases of jury nullification that I know of. They were initiated by government/church authorities which were intertwined at that time, but ordinary citizens got caught up in them.
Yes, mob mentality is a real phenomenon. Government agents certainly aren’t immune from it – police officers were prominent among the ranks of the Klan in the civil rights era, and probably still are to the extent that the Klan is still operating, for example.
But mob mentality is a separate issue from jury nullification. Juries don’t instigate prosecutions, they try cases brought to them by government. Thus, there is no need to worry about jury nullification leading to unjust prosecutions.
What juries can do is let off people who are accused of violating laws that shouldn’t exist. There’s simply no downside to that. You are confusing this with juries judging the facts and letting people off that they believe were justified in their actions, despite their (the juries) approval of the actual laws in questions, such as laws against murder. That is a different phenomenon, and is not limited to juries – police, prosecutors and judges have done the same, many, many times.
Also, you should put your worries about mob mentality into perspective; during the 20th century alone, wars between governments killed hundreds of millions of people, and caused many other forms of damage (homelessness, injury, etc, etc) to many more. Then there were all the actions of government to oppress their own citizens. Thousands of people may have been killed by frenzied mobs, but that’s nothing compared with how many have been killed by governments.
While some of the things you cite such as racism and sanctimonious prigs can certainly be a problem without government to abet it, by far the most abuses of people along those lines have been carried out by governments. And, of course, nuking and wars takes government action. Far from being a check on mob mentality, government takes it to the next several levels.
And even if your worries about mob mentality weren’t exaggerated, as I explained earlier, they aren’t relevant to jury nullification.
PF, surely you are familiar with the Salem Witch Trials?
While your critique of those drawn to government service tracks in many ways for me, my perception of the citizenry may differ from yours. Bubbas wanting to nuke them til they glow; bomb, bomb, bomb Iran; hyper-zealous MADD types; pitchfork brigades; racists; Klansman and neo-Nazis; anti-smoking zealots; sanctimonious prigs of various flavors.
If you are paying attention, you might see what I see: many, many frightened angry people acting out in all walks of life, both in and of goverment.
Whether the jury room with uninformed, often ignorant, jurors is the optimal way to reverse state-imposed dysfunctional laws on a case-by-case basis moves us toward a freer and more peaceful prevailing social order is a VERY open question for me. Is the average citizen equipped with the knowledge base and wisdom to IN ONE CASE nullify a law that we might agree are unjust? Will this aggregate in a manner that we also might agree is positive?
Dunno….
RC, I don’t understand what causes you to doubt it. Those who derive their living from government power have a natural incentive to want to maximize it. Therefore, it is not surprising that they have passed all kinds of ridiculous victimless crime laws, laws against criticizing the government, and so on over the years. Nor is it surprising that the kinds of people drawn to professions that involve exercising government power over others are disproportionately also the kinds of people that enjoy exercising (and in many cases abusing) power over others. And it isn’t overly surprising that in any dispute between government agents (police, bureaucrats, etc) and citizens, other government employees such as prosecutors and judges have an incentive to side with their fellow “public servants.” Do any of these premises surprise you?
If this weren’t enough there are all kinds of empirical evidence: studies that show that politicians disproportionately tend to be sociopaths, studies which show that cops often have the psychological profile of a bully and exhibit a much greater rate of alcoholism and domestic violence than the population as a whole, increasing prevalent video evidence of cops abusing citizens, and so on. There’s also all the evidence from history of the importance of jury nullification in curbing government abuses, from the exoneration of John Peter Zenger for criticizing the government, to the nullification of fugitive slave laws and alcohol prohibition, to today’s growing but still nascent movement of nullifying drug prohibition.
So, given all the evidence from logic, history, studies and taped evidence, why would it be surprising or controversial that average citizens would be less likely to countenance government abuses of people than other government professionals would be? Why would it be surprising that it would be easier for citizens to nullify victimless crime “laws” (actually edicts) on a case by case basis than to overturn them (not that nullifying them prevents anyone from working to overturn them – quite the opposite?) Why would it be surprising that a legal tradition that affords average citizen a place as a check and balance on the enforcement end of government power would result in more freedom for the citizens than one which does not?
PF, good for you that you can be so certain. In a sense, I am envious! However, I’d like to understand your conclusion. I genereally agree that the Anglo/American jurisprudential tradition had led to more respect for others than other jurisprudential configurations. And, yes, PART of the A/A tradition is JN.
What I’d like to understand is how you can assume that JN is SO critical to A/A’s rights protection propensities. Could not a MORE rights-protecting tradition have evolved that DID NOT include JN? If not, HOW can you be SO sure?
It’s definitely helpful.
It’s extremely statistically unlikely to have a jury like that. Very few if any juries will contain anyone who would nullify a law against an actual crime with real victims. Almost all juries would contain at least one person who would nullify laws against victimless crimes, since a fairly large percentage of the population opposes such laws, if they were aware they could nullify laws. In some cases they would give in to the pressure of the jury majority to give in so the jury can go home sooner, in some cases they wouldn’t, and in some cases they would be the majority.
I’ll grant that there would be cases where they would not nullify bad laws. In which case we would not be worse off than we are now. I expect as more and more people hear about cases of juries nullifying bad laws, instances of it happening would spread more and more until those laws become unenforceable and prosecutors stop bringing charges.
I don’t expect any serious movement – or even incidents – of nullifying laws that actually have victims. There just isn’t enough of a constituency for anything like that; it is an overblown fear.
Yes, you should. The relatively greater degree of freedom that Englishmen and Americans enjoyed for several centuries when compared to the rest of the world had a lot to do with it.
Correct.
Also correct.
They believe it was justified killing, and that it prevented a larger number of innocent people from being killed. The fact that I disagree with them as to those alleged facts does not mean that I believe that they would want to remove laws against murder. They believe it was not murder, as do some people I also don’t agree with in the Zimmerman trial. Ditto for your other examples.
jp: do you really think a jury of 12 people will think a murder shouldn’t be a crime?
me: Possibly, yes. Many justify Hiroshima and Nagasaki. Some believe there’s a cult of the omnipotent state and that fetuses are parasites.
So, for me, anything and everything is possible.
Robert Capozzi, do you really think a jury of 12 people will think a murder shouldn’t be a crime? I suppose it’s possible in the case of a mother killing her son’s molester or her abuser, but in the case of first degree-murder, I wouldn’t consider the very small possiblity of that happening as enough to warrant this wonder tool tool for jurors as being a possible problem.
“James Babb November 11, 2013 at 10:35 pm
It’s just for damage reduction. It actually works sometimes, and peaceful people go home instead of to a cage.”
Jury nullification of victimless crimes would work a lot more often if more people knew about it.
It’s just for damage reduction. It actually works sometimes, and peaceful people go home instead of to a cage.
pf and a, it might or might not be helpful to employ JN as a tactic to advance liberty. 12 Rush Limbaughs or 12 Charles Mansons on any one jury might or might not nullify an unjust law.
Then again as the most radical L on earth (to my knowledge), I’m always open to other possible paths toward liberty. Promoting old-school JN doesn’t get me going, esp. because I don’t find anglo/american jurisprudence itself to be sacrosanct. I could give a shit about the Magna Carta at this moment. Have I miscalculated? Should I?
True, but it needs some shoring up. Courts have ruled against it in recent times, or enforced prohibitions by decree, and most citizens aren’t aware of this right.
AR,
No jury has ever nullified rape, murder or assault laws. You are thinking of cases where juries have judged the facts of a case, rather than the law. That’s not jury nullification. For example, regardless of where you stand on the Zimmerman or Simpson trials, in neither case did the jury nullify murder laws. In one case, the jury expressed doubt, regardless whether you think it was valid or not, of the guilt of the accused; in the other, regardless whether you think it was valid or not, of whether the killing was murder or not. Neither case was jury nullification.
Actual jury nullification is a very important (although mostly forgotten) part of our system of checks and balances. Again, see the wikipedia links I posted earlier about Zenger, etc. Today, just as back then, politicians pass outrageous laws and prosecutors demonstrate zeal in applying them. It is just as important today for the people to be able to say no through jury nullification as it was in Zenger’s time, or the time of the fugitive slave laws, or alcohol prohibition.
Antirevolutionary, Jury nullification doesn’t need “passing.” It has been a cornerstone of the judicial system since the Magna Carta. It has played a key role against oppression for centuries.
I’m not a libertarian, but from this discussion I’m changing my mind about jury nullification. I now think it’s a good idea. Unfortunately, if it is passed in one state, pretty soon there will be one serious mistake (a bad jury nullifying rape or murder or assault laws), and then a backlash against it.
That is a lot of ifs. I believe that jury had completely valid doubts as to OJ’s guilt in the matter and rendered the correct verdict, and I highly doubt that anyone on the jury opposed laws against murder in general. Thus, I don’t believe that jury engaged in nullification. Even if you disagree with me that their doubts about OJ’s guilt were legitimate, wouldn’t you agree that they ruled the way they did because they had such doubts as to whether he was guilty or not, rather than because of a principled opposition to laws against murder?
To take a different case, where I believe the jury actually ruled incorrectly (unlike in the case you cite), Zimmerman was acquitted – I believe unjustly – but, that still wasn’t a case of jury nullification. Although I don’t share the jurors’ doubt about Zimmerman’s guilt in the murder of Trayvon Martin, I don’t believe that they ruled the way they did because any of them oppose laws against murder; rather, they had doubts that what Zimmerman did was murder (as opposed to self-defense), no matter how misguided I think those doubts were in that particular case.
I can’t think of any case where jurors actually believed there shouldn’t be laws against murder, as opposed to doubts over who the murderer was or whether the killing that occurred was murder or justified under the circumstances. Can you?
Robert Capozzi said: “me: I see. So if we assume that OJ in fact killed Nicole, and the jury nullified the law against murder, we can say – what – that the law against murder was nullified? And that this is a process we want to encourage?”
This is quite an assumption on your behalf to assume that the jury in the OJ Simpson trial nullified the law against murder.
pf: Law is as law does. A law on the books that can’t be enforced doesn’t matter much. The more an unjust law is nullified the less of a law it is for practical purposes. Given enough momentum, it stops being enforced altogether, and may then be taken off the books (a la prohibition of alcohol) or effectively nullified.
me: I see. So if we assume that OJ in fact killed Nicole, and the jury nullified the law against murder, we can say – what – that the law against murder was nullified? And that this is a process we want to encourage?
L: An understanding of how social change works. You don’t change the world by hiding your real views and tricking people into voting for you, so that you can then ram your true agenda down their throats via legislation. Rather, you have to persuade people that you are right to begin with, so that they will welcome the legal changes that you hope to bring about.
me: First, I personally don’t want to trick anyone…so stipulated? Nevertheless, I could cite most social change I can think of was done with LOTS and LOTS of flim flammery, so maybe we’re watching a different movie.
Of course, you are working witih a different paradigm — near as I can tell. I express my truth as best I can knowing I may not be “right”.
You seem to think there is such a thing as absolute right and wrong. Correct? If so, I wonder: Have you ever reversed yourself on any of your “right” opinions?
http://leg.mt.gov/bills/2013/billhtml/HB0290.htm [This act] may be cited as the “Larry Dodge Fully Informed Jury Act”. This bill was introduced in the 2013 Montana Legislature. It was voted out of committee and had a vote on the full Montana House Floor where it lost 38 (yes) to 62 (no) on 2nd reading. A lot of people like the concept of FIJA, but when it comes down to supporting your political platform, it doesn’t happen. Republicans controlled both houses of the Montana legislature in 2013.
langa is 100% right.
“Jury nullification was one of the tools used to prop up Jim Crow laws,”
Something else on “Jim Crow” laws: They are laws that can either be nullified or not nullified. In the case of a Jim Crow law, the law has at least SOME chance of nullification if reviewed by a jury. Without that, the law stands on its own. It doesn’t need to be “propped up” it’s “in-force” already!
Another reason why this statement is uninformed is shown easily be examining the worst Jim Crow law: the law that required blacks and whites to get permission from their local sheriffs in order to carry a concealed weapon. Whites were granted permission (permits, like the ones Illinois is trying to force on concealed carriers in Illinois), but blacks were not. In addition, those blacks could then be targeted for lynching by law enforcement itself –after all, those blacks had stupidly trusted government, and selected themselves out as wanting to be “equal in power to whites.”
So, the sheriff, certain to testify in any “Jim Crow” case involving an “illegal” gun, was already against the defendant, and had the law on his side. The judge and prosecutor, of course, were also on the side of the sheriff, taking his testimony at face value. And, the judge was telling the prosecution-hand-picked jury to “apply the law as it was given to them.”
If the black defendant is convicted under those circumstances, it’s because the jury DIDN’T NULLIFY, not because they DID NULLIFY.
And what of the situation where a white man murders a black man, and the jury lets the murderer go? In that case, the jury still showed mercy, but inappropriately, by letting a guilty man go free. That’s terrible, but it is still a situation of disallowing jury randomness: because the jury was selected to contain only racists. (If it wasn’t it would find at least one moral person who wasn’t a racist who opposed setting a precedent that allows murder, and the jury would be hung, at which point the prosecutor could and should retry the case.)
So, either it’s localized injustice with improper nullification, or institutionalized injustice against all nullification. Do you see how the former is far worse?
Also, Conrad fully examines the Byron de la Beckwith case in the murder of Medgar Evers in “Jury Nullification: The Evolution of A Doctrine.” The white judge and prosecutor worked together to make it clear that they both expected the jury to find the defendant “not guilty,” while telling racist jokes in the court. They also suppressed evidence, and generally behaved as tyrants will behave.
This wasn’t the fault of the jury, except in their capacity as uncritical conformists (they also didn’t get all the evidence).
Statistically, most laws go unenforced, and SHOULD go unenforced.
Also, if a murderer gets away, and its too egregious, vigilante justice is possible. Vigilante justice against the government is more difficult: it’s called violent rebellion or “violent revolution.” I’m not advocating this, I’m just pointing out that the scale of escalation toward justice “beyond the law” is harder when your enemy is an enormous institution instead of one single murderer.
Proper jury trials would make the USA markets flourish, because they would once again be predictable. This would usher in a new era of liberty.
“How do we limit jury nullification to victimless crimes?”
Empaths outnumber sociopaths in society. Jury nullification is based upon, and works because of, this true fact of reality. Most conformists mirror the system they live under. If they live under sociopaths, they mindlessly support sociopath policies. If they live under a constitutional republic full of democratic limits on government power, they support those limits. They do both stupidly, and unevenly, because most human intelligence is not self-directing enough to resist external organization. Anyone who’s petitioned for a week or so (enough to profile what individuals from the public really think) assuming they are intelligent, knows this is true.
Stanley Milgram, Philip Zimbardo, and Soloman Asch proved this, as have many other experiments since.
Most people fundamentally misunderstand the nature of reality, when it comes to social organization. They mistakenly think that the sociopaths (the founders knew them as “tyrants” or “officers” determined to “eat out their substance”) think much the same way that they do. They look to “leaders” for guidance, believing that the expertise of governing is much like the man who claims to be an expert at plumbing, masonry, or carpentry. Unfortunately, the power-seekers desire for power disqualifies them as benevolent users of power, so the common man, though empathic and in possession of a conscience, is sorely deluded about the nature of government.
This delusion is stripped away in courtroom, when they are asked to “personally sign off” on the destruction of innocent lives. In a proper jury system virtually noone will convict anyone for any victimless crime, but they will convict them for actual crimes, because only 2-4% of society are sociopaths. Most people are empaths. Also, a sociopath will tend to “go along with” the APPEARANCE of conscience, because they don’t want to be exposed.
So if this is true, how can judges (ex-prosecutors) and prosecutors obtain so many convictions? Simple: They’ve replaced 100% proper jury trials with 25% proper jury trials. The core of the jury’s power still exists, but the Supreme Court has actually ruled that judges can lie or mislead jurors into thinking that they lack the power to judge the law. This dramatically increases the odds of a conviction, given the typical conformist’s obedience to authority (legitimate or illegitimate). This loss of “officially recognized jury independence” has dramatically increased conformity to illegal and unconstitutional judicial instruction, except in Maryland, Indiana, Oregon, and a few other states where judges typically inform juries of their power. (The two elected libertarian judges, by the way, also inform juries of their power, even though one of them, Maricopa Judge John Buttrick, is in Maricopa County, Arizona.)
“Jury nullification was one of the tools used to prop up Jim Crow laws,”
Bzzzzt! Wrong! In all those cases, the prosecutorial jury selection and judges hand-picked racist jurors to sit on the jury. The legal system has always recognized blacks as a voting minority, so the destruction of optimal juries BEGINS and ENDS with infringement of proper juries.
Jury nullification has actually done far more to diminish Jim Crow (which is alive and well, by the way), than anything else. Moreover, the capacity is there for it to become a tool that ends the drug war and gun control (the first and worst of Jim Crow) forever. All you need to do is want it.
Moreover, media pressure can be brought to bear against racist juries, in a way that the general trend toward reduced violence and bigotry cannot be brought to bear against independent jurors. (See: http://fora.tv/2012/10/13/Steven_Pinker_A_History_of_Violence ) This is due to the statistical nature of reality. There are far, far, far more empaths in society than sociopaths, and an ever-increasing number of media outlets for voices that are critical of the status quo.
This was certainly true in the days of William Lloyd Garrison’s “The Liberator” that publicized the attempt of authoritarian Northern judges and prosecutors to stack the jury during “voir dire” with pro-slavery-enforcement jurors. “Voir dire” was the problem then, and it remains the problem today.
The ways juries are stacked against “malum prohibitum” offenders:
1) Voir dire -improper jury selection (1850 -Fugitive slave law) Eliminating the randomness of jury selection defeats the jury itself, which is a statistically intelligence-favoring body. Do the math: If 95% of society (the random jury pool) favors a law, what chance does the prosecutor have of obtaining a conviction? The math is .95^12 = .54 or 54%. All victimless crime laws have lower levels of support than that. The only way the prosecutors can obtain their obscene conviction rates is by stacking the jury, which the judge, himself an ex-prosecutor, allows them to do.
2) Licensing of lawyers – Since before the revolution, all the way to modern times, but to varying degrees in varying states. For example: prior to 1832, Ohio didn’t license lawyers, and Spooner forced the state to repeal licensing of lawyers in 1836. Today, in all states, judges will attack unlicensed attorneys as “inadequate” and try to shame or scare defendants into firing people like Marc Stevens. In doing so, they virtually guarantee a sentence of some kind.
3) Wrongful judicial instruction – since 1895 with SCOTUS “Sparf and Hansen v. USA” (1895). This has been happening since long before the star chamber in England, all the way to present times. It is inherent in the nature of sociopaths who become judges. However, the defeat of the seditious libel laws (and William Penn’s case for religious freedom in 1670) in England meant that judges couldn’t punish jurors for their independence. Moreover, in the USA, many judges prior to 1895 properly instructed jurors (once seated!) that they were to “vote their conscience, even if your conscience be in direct disagreement with the law.” As such, prior to 1895, the USA was far, far more libertarian than it is today.
4) High-stakes plea bargaining using the threat of “cruel and unusual” punishment to coerce defendants into avoiding a jury trial altogether by accepting some form of punishment in a “plea bargain.” The Founders of the USA defined “cruel and unusual” as “any punishment not fitting the crime.” Therefore, fining someone ten dollars for a drug offense is “cruel and unusual” punishment, since there is no “corpus delicti” (no “injury” and no “intent to injure”), and therefore there is no crime. Therefore, it’s simply the state trying to steal ten dollars from an innocent person. However, as I mentioned, the American public is the least-educated public on the surface of the planet Earth, thanks to the government control of education. With their shitty, worthless government “public school” educations (or the uncompetitive private educations that arose with the bar set very low in competition with the government schools), most people have a total absence of comprehension of history, philosophy, economics, and law —all the subjects necessary for a strong and independent citizen to comprehend. Hence: idiocracy.
“with white juries refusing to punish white defendants for crimes against blacks.”
This is the inane “reasoning” of socialist faux-“liberals” like Alan Dershowitz. Stop lapping up the government school pablum version of history, and investigate the history for yourself.
Start with:
“Jury Nullification: The Evolution of a Doctrine” – Clay Conrad
“We, The Jury” – Jeff Abramson
“Send in the Waco Killers” – Vin Suprynowicz
Not only is jury independence or the restoration of “jury rights” benevolent, it is literally the only viable pathway to individual freedom.
In my opinion, the messengers of jury rights do a lot of things terribly wrong. Also, the libertarian movement in the USA is almost inherently —almost by definition— strategically inept. (There are powerful disincentives toward intelligent political action on behalf of individualists. Every loser in the USA can lead a more comfortable life, and die a more comfortable death than John Lilburne did. —There are too few people willing to risk discomfort to do what’s right, as the abolitionists did, when they used jury nullification and media-escalation to defeat the fugitive slave law in the middle 1850s.)
Remember when smart and well-educated innovators and inventors used to say “What jury would convict me?!”
You don’t hear that too often anymore, because Americans are a bunch of uneducated cowards. Doug Casey is precisely right to call them a bunch of “whipped dogs.”
If you know what America is supposed to be, and you are a real American, you are mostly dealing with people who share the same human form, but are less “all American” than the hags in Robert Heinlein’s “Puppetmasters.” The biggest baddest tough guy you know is most likely totally and completely afraid of defending the ideas he holds as the truth. This society has confused “physical bravery” with “intellectual bravery.”
Any fool can run into a minefield for a cause he doesn’t believe in. It takes far more bravery to get off the truck and resist when the military comes to your town looking for fresh meat. Any fool can say “The judge told us we have to apply the law.” It takes far more bravery to sit on a jury where a hated minority is being persecuted and told by the judge that the persecution is good and noble, and nullify.
The foreman on the Waco jury was in a position to show mercy to the survivors of the government massacre at Waco. She stated that she wanted to minimum punishment of the people, so she could feel like she was “applying the law” and being a good little conformist. Instead, the judge sentenced the few survivors who had already been brutally attacked by the government and watched their families burned alive, to FORTY YEARS IN PRISON. The woman broke down and cried, because she had a conscience.
She cried because she was a stupid tool of the government, and she failed to comprehend that the libertarian message she had ignored her whole life was the PURE AND UNDILUTED TRUTH. She knew that she had just destroyed the lives of the innocent people she had sat in judgment of.
Unlike others who had “just followed orders” and delegated the use of their bodies and minds to false authority, (and explained their actions with “the Nuremburg defense”), she actually felt bad about her actions.
But it was too late to do anyone any good.
Think things through, and don’t sit on the wrong side of history.
The society of sheep you’re flocking with might not forgive you.
That’s why America is supposed to be individualist and libertarian, as anyone who is curious and intelligent already knows.
Exactly. Advance on all fronts; a small change leads to a bigger one.
What am I missing?
An understanding of how social change works. You don’t change the world by hiding your real views and tricking people into voting for you, so that you can then ram your true agenda down their throats via legislation.
Rather, you have to persuade people that you are right to begin with, so that they will welcome the legal changes that you hope to bring about. This is why even the most tyrannical governments spend so much time spreading propaganda, rather than merely issuing edicts to be enforced at gunpoint.
The actual passing of legislation is basically a formality, an official recognition of the change in public opinion that made the acceptance of such legislation a possibility.
You are both correct.
langa said: “But things like jury nullification are an excellent way to demonstrate that by changing minds, we can change laws, rather than the other way around.”
There are a lot of people out there whose minds will never be changed no matter what libertarians do.
Law is as law does. A law on the books that can’t be enforced doesn’t matter much. The more an unjust law is nullified the less of a law it is for practical purposes. Given enough momentum, it stops being enforced altogether, and may then be taken off the books (a la prohibition of alcohol) or effectively nullified.
It’s extremely efficient, especially until you have enough political power to actually overturn a bad law. And as for dead end, how so?
L: But things like jury nullification are an excellent way to demonstrate that by changing minds, we can change laws, rather than the other way around.
me: How so? JN doesn’t “change laws,” it nullifies the application of a law in ONE instance, yes?
What am I missing?
JN might be righteous on one level, but it strikes me as a political dead end and highly inefficient means of communication.
“Jim Babb November 10, 2013 at 7:48 pm
The beautiful thing about jury nullification is that it does not depend on the political process. The ballot innitiatives sound great, but there’s no need to wait. The right already exists. It’s even codified in many state constitutions.”
Yes, but like Paul said above, a jury nullification initiative would bring a lot of publicity to the issue, plus, if it passes it would make it a criminal offense for jurors to not be told that they have this right. I would even like to have something in the initiative that says that the right of jury nullification should be posted on the wall in big, bold letters in every court room.
This is great! Many “libertarians” argue that we need to compromise on matters of principle in order to have any practical (as opposed to purely theoretical) effect on the real world. But things like jury nullification are an excellent way to demonstrate that by changing minds, we can change laws, rather than the other way around.
Per wikipedia:
In the 21st century, many discussions of jury nullification center on drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.
I’ve not done much thinking about jury nullification. So, for those of you more familiar with the subject….
To what extent and in what ways has the modern jury nullification movement succeeded?
I hope local LPs in other cities do this and send us reports about it, too.
Bravo Jim!!!!
The idea of the ballot initiatives would be to help spread the word. Part of the publicity would occur from the signature gathering process, part from news reports, part from the ballot statement itself if enough signatures are gathered.
The beautiful thing about jury nullification is that it does not depend on the political process. The ballot innitiatives sound great, but there’s no need to wait. The right already exists. It’s even codified in many state constitutions.
What are your own thoughts on the issue?
I appreciate the responses – thank you!
Jury nullification is being used against putting people in jail/prison for victimless crimes much more often recently than for any racial bias.
If juries become aware of their power to judge the law as well as the facts, there would be a lot more people being let go for victimless crimes and more incentive to stop prosecuting people for them or just take them off the books altogether. If jurors could judge which laws are just, it is far more likely that they would find laws against victimless crimes to be unjust than any laws against actual crimes with actual victims.
Jury nullification of bad laws is an important bulwark against government abuse of the people. It has a long history in American and English law. See for example
http://en.wikipedia.org/wiki/John_Peter_Zenger
http://en.wikipedia.org/wiki/Jury_nullification#England
etc.
“wolfefan November 10, 2013 at 3:36 pm
How do we limit jury nullification to victimless crimes? Jury nullification was one of the tools used to prop up Jim Crow laws, with white juries refusing to punish white defendants for crimes against blacks.”
How do we limit people from committing crimes with guns or knives? The fact of the matter is that no system is perfect, but I’d rather deal with the consequences of a few rogue jurors letting people who committed a legitimate crime go, than have to deal with the present consequences where such a large number of people are convicted for victimless crimes to where the USA now has the highest per capita population in the world of people who are in prison or jail. There is obviously something seriously wrong with a criminal justice system when over half of the people who are tied up in the criminal justice system are in this situation over things that should not even be crimes because they have no victims.
There is a huge industry of people who make their living off of people getting arrested and prosecuted for things that should not be crimes. This would end if the general public knew about jury nullification.
On the other hand it was also used to nullify fugitive slave laws and other such things.
How do we limit jury nullification to victimless crimes? Jury nullification was one of the tools used to prop up Jim Crow laws, with white juries refusing to punish white defendants for crimes against blacks.
Good idea, Andy.
“paulie November 10, 2013 at 1:27 pm
It would make a good subject for state initiatives, also.”
Yes, I’ve been saying for a long time that I’d like to start an effort to place jury nullification initiatives on the ballot in the states that have the initiative process. The only place that I’m ever aware of anyone having done this is South Dakota back in 2002, when Libertarian Party activist Bob Newland was the proponent of such an initiative. The initiative did qualify for the South Dakota ballot, but unfortunately it lost at the polls due to a smear campaign that was funded by the special interest groups that have a vested interest in people getting arrested and sent to prison for victimless crimes. Newland’s group operated on a shoe string budget and therefore was not able to counter the negative ads.
I’d like to see a better funded attempt at qualifying and passing a jury nullification initiative in some state or states, and I’d like to get the message out that we still have this right regardless of whether or not the initiative passes, it is just that we want to prohibit government prosecutors and judges from lying to the public about it by concealing this information from them. I think that a well thought out campaign like this could be quite effective, as it would get the message out, and it would put the government on the defensive and make them look bad if they try to stop it, and even if it does not pass, it would still get the message out to a lot of people.
It would make a good subject for state initiatives, also. We should present more information to LP state and national convention attendees and LP state and local communication fora (email lists, facebook pages, yahoo groups etc) urging LP candidates to make it an issue in their campaigns.
The Fully Informed Jury Association was started by Libertarians.
http://fija.org/about/history/
“The issue of restoration of our heritage of jury nullification–the right of the jury to judge the validity and morality of the law as well as the facts under which a defendant is being tried–was raised as early as the 1979 Montana Libertarian Party convention.
In the interests of personal liberty, Larry Dodge, former Chair of the Montana Libertarian party, decided to educate the American people of this available but unused right. He also conceived of the Fully Informed Jury Association/Act/ Amendment (FIJA). After assessing interest in the concept during the summer of 1989, Dodge led discussions about FIJA at the National Libertarian Party convention in Philadelphia in 1989. Forty-four people attended. Later that summer, Larry Dodge and Don Doig organized FIJA National.”
Jim Babb is a very effective activist. We Won’t Fly gathered a lot of mainstream publicity also. I remember catching it randomly on a mainstream news station when I wasn’t looking for it. This was a national news network.
Jim has been working with Julian for years on FIJA, but he made this his own, and in this he is leading the way for all of us!
James Babb made an effective presentation.
Hooray for him getting on the news and looking presentable. That’s half the battle, and it means a lot to the superficial masses. Also, it might get some people to click on the more in-depth videos on the subject. Way to go, Jim!
Yep.. big time!
“Jill Pyeatt Post authorNovember 9, 2013 at 11:57 pm
Agreed!!! This could/should be a break-through issue for Libertarians.”
The Libertarian Party as a whole should have been more vocal about this issue years ago. Jury nullification of victimless crimes really ought to be one of the top issues that Libertarians promote.
“It came up at a Cherokee event Alan and I went to today, and the 2 or 3 people I talked to about it had never heard of this. We need to get the word out!.”
I attended a marijuana legalization rally not too long ago, and while there, I talked to around 200 people about jury nullification. Out of the around 200 people that I talked to about jury nullification, only maybe 4 or 5 people already knew what jury nullification was. We’ve got a lot of work to do.
Agreed!!! This could/should be a break-through issue for Libertarians. It came up at a Cherokee event Alan and I went to today, and the 2 or 3 people I talked to about it had never heard of this. We need to get the word out!.
Yes! This is great. Jim Babb is on the right course. I’ve been saying for years that Libertarians should be doing a lot more to promote the issue of jury nullification of victimless crimes. Spreading the message about jury nullification is a way for Libertarians to be effective in the real world regardless of whether or not we elect candidates to office.