Patterico wants to know if nullification supporters would lie to get on a jury to nullify an unjust charge.

I’ve said before that I most certainly would. Moreover, I think we need a test case to invalidate the perjury trap judges and prosecutors in some jurisdictions set when they ask potential jurors if they’ll judge only the facts and not the law. It creates a situation where potential nullifiers are either dismissed or must put themselves in legal jeopardy to get selected for the jury. Given nullification’s rich history in American criminal jurisprudence, and the fact that the founders intended it to be an extra layer of protection from unjust laws and laws applied unjustly, these attempts by courts and prosecutors to take nullification off the table need to be challenged.

Patterico and I obviously disagree on this. He believes the number of instances where nullification would be acceptable are rare enough to liken the practice to “ticking time bomb” torture scenarios. I couldn’t disagree more. Lawmakers pass asinine criminal laws all the time, without giving much of any thought to how those laws might be applied. It’s ridiculous to say, “the answer is to change the laws” when the sheer volume of laws now makes it impossible for most people to even do their taxes without breaking one, much less run a small business. It’s naive to think that simply because the population at large isn’t aware enough of the outrageousness of some of these laws to pressure our politicians to change them that we should then be okay when the application of them leads to absurd, ridiculously unjust outcomes.

To think that the legislative process is somehow so sacrosanct that laypeople sitting on juries shouldn’t second guess the judgment of lamwakers when dumb laws railroad unthreatening people reveals a trust in politics and lawmaking I’d say is rather unhealthy.

So to get more specific with Patterico’s question, I’d have nullified anyone charged under the Fugitive Slave Act. I’d have nullified anyone charged under the Alien and Sedition Acts. I’d have nullified any person — black or white — prosecuted for violating Jim Crow laws in the segregated south. I’d have nullified chages against black men for having sexual relations with white women. I’d have nollified charges against defendants for violating the Volstead Act.

More recently, I’d have nullified in the Richard Paey case. I’d also have nullified in the Dane Yirkovsky case. I’d nullify in any medical marijuana case where the feds are prosecuting drug crimes that the state where the crime took place has explictly made legal. I’d nullify in any case where mandatory minimums would mean a conviction would result in a punishment wholly disproportionate to the crime (see Weldon Angelos). I’d nullify anyone in Washington, D.C. charged with defending his home with a firearm (yes, it’s illegal — not just to own a gun, but to actually defend your home with one). I’d nullify in any case where it was clear to me that the prosecutor was motivated more by poltics than by justice. Which means I’d nullify in cases where it was clear the prosecutor was “making an example” of someone. I’d nullify in white collar crimes where heavy-handed regulation has made it impossible for business owners and business executives to follow one law without breaking another (see Jim DeLong’s book for a littany of examples). I’d nullify in cases where regulatory laws now, absurdly, bring criminal sanctions for honest mistakes, misreadings of the massive regulatory code, or unforeseeable mistakes by subordinates. I’d have nullfied in the ridiculous lobster tail case.

That’s not a comprehensive list, of course.

Opponents of nullification like to trot out Old South cases where white people refused to convict other white people of murdering black people. Or perhaps the O.J. trial as another example, with the race roles reversed. That’s ridiculous. That nullification has in the past been used to achieve unjust and immoral outcomes isn’t a reason not to use it to achieve outcomes that are just and moral. And does anyone really believe that if a group of white racists wants to refuse to convict a white man of murdering a black man, the fact that sensible people would refuse to use nullification to minimize the damage caused by mandatory minimums or draconian drug laws is really going to stop them?

We have lawmakers whose answer to ever social ill is to pass another criminal law, or to toughen existing laws. We have a federal government that’s hellbent on doing away with federalism when it comes to imposing its concept of what the law ought to be on states that wish to make their own laws. We have executives who refuse to use the clemency and pardon powers as they were intended — to correct injustices that may have slipped through the system. Consequently, we have an exploding prison population — higher than any other country in the world.

So yes. I’ll happily preach the gospel of nullification — even to the point of advocating misleading the court to get into a position to nullify –as one small way to stem the tide.

This entry was posted on Wednesday, August 30th, 2006 at 10:53 am by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.