There’s an interesting legal discussion going on over at Eugene Volokh’s place, having to do with a problematical juror who declined to sit down and do as he was told by the trial judge:
It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.
But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
The juror declined the judge’s admonition to vote the facts of the case, insisting his right to also judge the law – as indeed, was intended by the Founders. For this he was removed and an alternate selected after the case had been sent to the jury for a decision.
There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt.
Jury nullification has been in bad odor over the last century, mostly because of a marked hesitancy of white southern jurors to convict white men who had been accused of crimes against blacks. The OJ Simpson trial result may indicate that the reverse has also become true.
The concept goes back centuries, however. As the “problem juror” points out, jurors are not sworn to test only the facts of the case, but also the law. A result of “guilty” or “not guilty” is a moral judgement as much as a factual one – facts are not “guilty”, they are proven.
In Scottish law, jurors traditionally were empowered to vote “proven” or “not proven” of the facts as the Crown had represented them but – in response to a patently unjust application of the law in 1728, insisted upon an ancient right of “not guilty”, which is even now their third option.
In a notable trial in 1728, a defence lawyer… persuaded a jury to reassert its ancient right of acquitting, of finding a defendant “not guilty”. The case involved Carnegie of Finhaven who had accidentally killed the Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of “proven” or “not proven” depending on whether they believed the facts proved the defendant had killed the Earl. However if the jury brought in a “proven” they would in effect cause this innocent man to hang. To avert this injustice, the jury decided to assert what it believed to be their “ancient right” to judge the whole case and not just the facts, and brought in the verdict of “not guilty”.
The (re)introduction of the “not guilty” verdict was part of a wider movement during the 16th and 17th century which saw a gradual increase in the power of juries, such as the trial of William Penn in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as jury nullification).
This is an interesting conundrum: Obviously things fall apart if solitary jurors are left free to derail law enforcement through their own Constitutional interpretations. But as a commenter at Volokh point’s out, the “consent of the governed” means more than just electing representatives. It means that laws can only be enforced with the consent of the citizenry, a consent the jury is empaneled to offer or withhold.
Or else, why bother?
I’m no lawyer, but it seems to me that — in this particular case — if there is no Constitutional authority to ban posession of cocaine, then there is no case against the defendant. How can a federal court try a case when there is no federal law against what the guy did?
Now, if they had tried him in state, county, or city court under laws passed by those entities — laws that ban the posession of cocaine — then it would be a different story.
The idea that juries cannot judge the law — just the facts — is offensive. OTOH, it seems to me that allowing a jury to decide whether or not a law is right or wrong, or allowing a jury to interpret the law could be dangerous as well.
Lex, you gave the example of white jurors who were reluctant to convict white men who comitted crimes against blacks. What recourse would the plantiff have in a case like that?
Thanks,
Jim C
I think the case could be argued on the basis of precedence. There are specific federal laws against possession of cocaine and since no argument against constitutional validity has been made, the law has been enforced. Consequently, unless this goes up to the Supreme Court to determine its constitutionality, the fact that the laws have been enforced before should let the enforcement of them hold.
The defendant can be found guilty based on precedence, but can appeal based on the constitutionality of the law under which he was convicted.
Either way, he goes down for breaking a law. Whether or not the law is legal is another court case altogether, I think.
But I’m no lawyer either.
Ah… the meeting of Roman and Nordic law.
The old nordic way was for 12 of your peers to hear the case and decide both guilt and punishment. They had a “lawman”, who kept knowledge of how similar situations had been agreed upon, as an advisor. If the jury found a new way of resolving the case/dispute, then that result was added to what was in effect the ‘common law’
English – and american – law derives from this primary source. (Remember the Danelaw designation?)
Of cause no proper King or bureucrat can live with this disorder, so over time the ‘lawman’ gradually took over, so that now any jury are TOLD what the law is and WHAT their choices are.
A case like this seems to me to beg for a proper review centered on the proper balance between Judge & Jury.
Like all things human a degree of ‘tension’ between the two is likely to be the best protection for the citizens. – I do like a balance of power keeping the hyenas off my back.
Absolute control by the jury can – and will – lead to contradictory and likely patently unfair decisions, as well as very confusion rules. Absolute control of the judiciary will lead to a steady but relentless diminution of individual rights.
One can have different views on narcotics outside of rational medical therapy (I’m against having seen the ravages a.o.), but the basic question of constitutionality trumps in this case.
This needs some ‘penumbra’ search.
peace Hejde
JimC,
INAL, but just because the 19th Amendment was passed, I’m not sure it was really needed to pass the Volstead Act. Would that act have been sufficient without the amendment?
That is to say, what is the precedent for saying the Feds could not outlaw alcohol in the absence of the 19th? Is there any? Did the Supremes ever rule on it? Dunno. My guess is that the Congress would be able to make a ruling under the ICC, but then the issue is whether the alcohol is subject to interstate travel. With cocaine, it is ALL imported and thereby would automatically fall under the feds.
I would note that the Constitution states that the law may be contested by the citizens in the ballot box. It does not say it can be contested in the jury box.
The 19th was both passed and repealed by the citizens through their representatives under the Constitution. Questioning the Constitutionality of a duly passed federal law is a matter for the citizens to bring to the Judiciary or the Legislature in the manner the Constitution sets forth. This was “living and breathing” in a different venue.
I’m kind of Strict that way.
XBradTC,
If it automatically falls under the fed’s authority, then shouldn’t all cocaine cases be federal cases? Does that nullify state and local laws against posession of cocaine?
BTW, in case anyone is wondering… no, I do not support or endorse the use of illegal drugs of any kind. If this guy was trafficing and / or using he should be punished. The question is how, and under who’s laws… the feds, or state and local.
Jim C
Jim C, I believe that the vast expansion of federal civil rights law in the 1960′s was in part a response to the jury nullification of bigoted white southerners. If a guy got off on what was clearly a biased decision, the feds would step in and – rather than prosecute “murder” or whatnot – would charge him with violating the victim’s civil rights.
XBrandTC,
IANAL either. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Xth amendment would seem to limit what the federal government can regulate.
However, the commerce clause has been broadly interpreted to allow nearly anything. This case of black market drug activity, and I assume movement across state lines, is easily in the realm of the regulating commerce.
It seems that we have a forgotten (or interpreted away) right to nullify laws by the jury. In general I’m in favor of limiting the power of appointed judges. Nullification is just a bit shocking when it takes the form it did in the OJ trial.
“However, the commerce clause has been broadly interpreted to allow nearly anything.”
That’s an understatement. Supreme Court precedent exists (I’m paraphrasing here) that states that if I own company X that makes widget A and I engage in trade with company Y in the same state that makes widget B that Congress can regulate that trade under the ICC. Given that, there’s really not much that doesn’t fall under the ICC.
Of course, I vehemently disagree with that conclusion, but it is precedent. It’s part of the trend in American jurisprudence to pretty much ignore the 9th and 10th Amendments, which I would say is a very bad thing.
As for jury nullification, it should be a last resort, but it should be a resort. I think that our increasingly costly and pointless war on (some) drugs is a perfect example of when jury nullification should come into play.
I can say that if asked to serve on a jury judging a drug crime I would vote for nullification, no questions asked.
He’s not being *tried* under the Constitution.
He’s being tried under a statute. If, in fact, the statute itself is unconstitutional, that is a basis for appeal by the defendant’s counsel – NOT a matter which a panel of jurors have been asked to – or are qualified to – decide.
These people need to get a grip.
The idea that juries cannot judge the law — just the facts — is offensive.
That idea has been in force for centuries. Traditionally in American jurisprudence, the jury is the trier of fact, the judge is the trier of law. And if the jury, by means of jury nullification or any other means disregards the law, the judge’s instructions, or renders a verdict utterly inconsistent with the evidence presented, the judge is completely within his rights to set their verdict aside.
It’s called judgment non obstante veredicto: judgment notwithstanding the verdict. Rarely used, but hardly unprecedented.
I tend to find myself in line with Cassandra. JimC, with respect to the restrictions of power and falling under the feds, that restriction tends to flow one way, that is the federal government is restricted in what falls under its purview, but not the states. Just because the feds can pass criminal statutes on a matter doesn’t mean the states can’t as well.
Tangential to the serious issue of jury nullification I suppose…. But indulge me for a moment……
With different and more enlightened anti-drug/war-on-drug national policies and laws, this and most similar expensive and frustrating court cases might never occur.
The best way to deal with most illicit drugs – and the incredible crime and tragedies they forever engender – is to legalize, regulate, and tax them like we already do with the drugs of alcohol, tobacco – or even Vicoden, Oxycotin, Morphine, etc.
This would put many criminals immediately out of business! (Albeit a small few would still remain.)
Controlled legalization would immediately decimate the drug cartels.
It also would lead to much more needed control and reduce our American drug addiction. It would significantly reduce our prolific drug-related crime rate. It would eliminate most of the massive drug black market, and generate billions in new tax revenues. It would also help to protect our nation’s youth. And it would open up our seriously overcrowded prisons for the more serious criminals , those more dangerous felons – rapists, murderers and others – who now are too often let free today after their criminal convictions, because there is no more room in our mostly drug-convicted, teeming populations in the ‘Pen’.
I just want to add that that juror has to have some serious cojones to stand up to a Federal appointed-for-life demi-god-in-his/her-own-mind judge. Those particular people are, generally, insufferable pains in the butt.
You know, I think I agree. with fliterman.
Huh.
+1 on fliterman’s comment.
Your comment on agreeing with it, Lex, helps illustrate what I was talking about with jury nullification being a last resort, but a resort, and the war on (some) drugs being a perfect example of this. Polling data suggests that an increasing number of U.S. citizens agree that the war on (some) drugs is a pretty bad idea. The fact that a “law and order” guy like yourself appears to be leaning that way is a great illustration. Yet I think we can agree that the chances of this idiotic policy being reversed through the political process are slim to none, for a variety of reasons. In that sort of situation, what recourse does the populace have?
Oh, and to pile on fliterman’s war on (some) drugs comment, it’s worth noting that the drugs that are legal in this country are that way because they have substantial lobbies that have fought for (read: bought) that legal status when it has been threatened. The drugs that are illegal in this country are that way because at some point in our nation’s history those drugs were associated with an undesired race or class of people. How American is that?
I can’t say I agree re legalization. If drugs such as cocaine were legal to pruchase, even with regulation and taxes, wouldn’t those very same cartels remain the suppliers? Where is the difference in their income? Do you think they really worry whether or not Uncle Sam is getting a piece of the action? They’re in the wholesale business, not retail.
And drugs are already regulated. Yet we are witness to a daily parade of those who will pursue extra-regulatory mens to obtain drugs, prescription and otherwise. As far as eliminating the black market, it would merely shift to the bulk of the trade to the legal market. Making something easier to get will not neccesarily reduce demand. And what message does it send to the youth to say, “sure coke, heroin and meth are surefire paths to ruin, but they won’t take you directly to jail”.
I understand that alchohol and tobacco can be similarly destructive influences, but is that reason enough to throw open the gates to harder and more destructive drugs?
as I think I wrote on somebody else’s blog recently, the purpose of jury nullification is not to nullify punishment for a bad crime, but to nullify a bad law or a bad application of a good law.
Murder, e.g., is a bad crime which should be punished when found out.
Sawing off the barrel of one’s shotgun so that it is 17.9 inches long is not a crime at all, if I am on the jury.
Jury judges law, and facts, and equity. The judge and lawyers are just there to assist the jury.
Sorta like the way courts-martial used to be, with the JAG people having a very junior part in the proceedings
Our good host wrote:
You know, I think I agree. with fliterman.
(legalizing, regulating and taxing drugs)
Well, so do I, the way he describes it.
I’m just not sure it would work out so nicely.
William Buckley argued strongly for the same position
for many years, and I’m finally beginning to be receptive
to the idea.
Best regards, Peter Warner.
I’m with Lex and Fliterman (no reservations there, a good idea is a good idea, and the argument is just plain sensible) and further proving us right, is the fact that William F. Buckley, the conservatives conservative also argued for decriminalization for the very same reasons.
Lex and Filterman,
Perhaps, but I think we need to also accept that legalization will also further de-stigmatize drug use and probably cost lives as well. Probably not as many as we are losing now in the war on drugs – but some (many? who knows?) people who might never have tried illegal drugs will be more tempted to purchase legalized. I think your right that the trade-off would be a net gain but I also think the butchers bill likely is going to be higher than either of you are anticipating.
David Curp, I’ve regretfully come to the conclusion that the fiends will be fiends no matter what we do. What I cannot abide is all of these militarized police officers running around kicking in the doors of law abiding citizens, terrorizing the inhabitants and shooting the hounds, or worse, hup-hup-hup.
We’ve done what no one else has managed to do since the War of 1812 – make a battlefield of our own back yards.
We regulate what people can put in their own bodies because we believe there are social consequences for not doing so. I become ever more persuaded that the consequences of having done so outweigh those benefits, all the moreso since we cannot make a dent in the demand side of the equation.
Open it up, regulate it, tax the hell out of it and use the money the cartels are pocketing to deal with the consequences attaching to the actions of the lotus eaters.
Cassandra,
As was mentioned in one of the articles in this csse, how can a jury judge a fact to be gulty or not guilty? At some point, the jury must decide whether or not the defendant has broken the law as written (or as it was intended when it was written). That — to me — is judging both the law and the facts.
I agree, I don’t think layman jurors should judge whether or not a law is constitutional. That should be left to the Supreme Court. That — by the way — is why I feel it’s important to have strict constructionists on the court. I don’t want some well meaning judge who’s unaccountable applying “evolving inernational standards of decency” or whatever the latest catch phrase is now days to justify applying their political views to our laws.
And, jurors certainly shouldn’t be allowed to not convict someone just because they feel the law is BS. If you don’t like a law, then lobby Congress (state or federal) to change it.
Maybe I’m just not understanding the situation…
Fliterman and Lex,
WRT legalizing drugs; gotta say I disagree. I don’t want cocaine, heroin, extacy (sp?), meth, or any of the other hard core stuff legalized and on the streets. That may take the dealers off the streets (and it may not even do that as they likely could provide the stuff for less $$ than what someone could get it for legally… look at the black market for cigarrettes as an example), but drug crimes would still be an issue; people would still steal to support their habit because the problem with addiction to a lot of these drugs is that getting high and staying high becomes the most important thing in their lives. More important than family in some cases, and certainly more important than holding down a job to support that habit.
There’s also the public health concern. Imagine a whole new generation of users sharign needles and all the problems that would bring… a whole new round of HIV/AIDS infections, sores and skin infections from infected injection sites, etc.
No, the solution to the drug problem is to eliminate the demand. How do we do that? I have no idea. I guess educating the public about the risks of drug addiction and use is a good place to start, but I don’t for a minute think that’s enough to rid us of the demand. Maybe getting the users into mandatory drug treatment, and mandatory minimum jail time for dealers. In other words; don’t jail the users, jail the suppliers.
Just some thoughts…
Jim C
Jim, would they steal if we just gave them the stuff? For free? All you have to do is give us ID, and we’ll just give it to you? The point is to make it unnecessary to have a crime attached to the use, reducing the overbearing (and useless) war on drugs, freeing up assets to deal with crimes for both the police and the courts.
If memory serves, the UK did the same thing back in the late 50s early 60s with herion, and virtually extinguished the herion problem. And this is not to say that we won’t punish illegal use, just remove the drug dealers from the equation.
The facts aren’t judged guilty or not guilty. In a criminal case, the jury judges whether the prosecution has met its burden of proof with regard to whatever statute, as explained by the judge, the defendant was charged with in the instant case. They are the triers of fact (i.e., evidence). If the prosecution meets the burden of proof (i.e., sufficient facts are presented to prove all elements of the charging statute beyond a reasonable doubt) then they should return a guilty verdict.
The validity of the law is not a question presented to them – only whether the evidence satisfies the elements of the charging statute.
For instance (I don’t know the elements of criminal fraud) but for common law civil fraud:
1. Intentional
2. misrepresentation
3. of a material fact
4. relied upon by the plaintiff
5. to his detriment
They all have to be proved, or there is no case. That is the jury’s job.
Roachman, the difference in the income of illegal drug importers should currently illegal drugs become legal would be a) their competition will greatly expand, thus lowering the price, and b) the premium attached to the price of something illegally imported to support bribes, paying people to sneak over the border, ammunition, etc., will no longer be chargable.
Now, the government has to make sure that the taxes they add stay well below these additional costs. Here in Illinois, there is a thriving business in illegally importing cigarettes from Indiana because the costs of importing them illegally (even with a sizable profit to the illegal importer) are below the difference in taxes between Indiana and Illinois.
As far as the issue of the effect of legalization on drug use goes, I believe that it has been the experience of England, the Netherlands, etc. that there’s an initial peak upwards, but the long-term trend is to drop it below what it was prior to it being illegal. I bet that this does NOT occur for some of the softer drugs (e.g., marijuana), but it’s pretty strong for heroin, etc.
David Curp, “legalization will also further de-stigmatize drug use”
You haven’t dealt with a lot of young people lately, have you? At *best* the illegality doesn’t stigmatize it to most. At worst it gives it a bit of a dangerous (read “exciting”) edge.
Generally speaking I imagine if it was legal then many would be more likely to believe what they hear about the awful side effects. As it is they know the government wants them not to, so most of the available information is dismissed as propaganda. It doesn’t help either that some of it is propaganda, notably most of the anti-marijuana advertising.
Do you really believe that uncle sam would be willing to give up a tax cash cow like that?
No, if it’s legalized, the government will tax the heck out of it. There’ll be no free drugs. Someone will have to pay for it. If they give it away to the users, then those that pay for it will be the productive citizens who don’t use, and go to work every day. I don’t know about you, but I don’t want my tax dollars going to support someone else’s drug habit.
Jim C
Jim,
Nah, if it moves they’ll tax it. And I certainly don’t want to pay for the drugs either.
But a pack of smokes is under $10 including ridiculous taxes and paying for production costs. Surely a similar is possible for drugs if they’re produced industrially. A low price may be almost as good as free. Note also that although nicotine is said to be as addictive as anything few people are killed for money to buy Camels.
Could anyone in the know, please enlighten me about what has happened in the countries where (our illegal) drugs have been legalised and Rx’ed to proven addicts?
I’m not sure, but I thought I remember reading that there was a huge spike in usage, then a slow decline, but not back to (postulated) numbers before legalization. And the pattern was repeated throughout “linked” vices, such as prostitution…and some areas of the major cities became cesspools (like Central Park?) where the drug users hung out openly and couldn’t be rousted…
And the end result was higher taxes for the working man. In most of those countries, the total tax burden was far higher than any of us want to see.
Now, I can’t remember where/when I read that, or whether it was an unbiased (choke) article…can anyone enlighten me? thanks, doorkeeper