Many years ago, I was invited to give a talk to lawyers. The organizers of the conference called my presentation: “Trying cases outside the box.” I thought the title an odd one. What box? A trial is simple story telling, right? This was before a near professionally fatal flirtation with being reasonable and trying to get along seized me. I now realize the boxes are but coffins.
I fear the herd, especially those herds composed of groups who mean well. Give me the solitary voice any day of the week. Now there is a friend.
So I took to the voice of Lysander Spooner much like a hungry man sits down to a good meal. A young lawyer in Indiana, John Kindley, directed my attention to Spooner. I started with his book, An Essay on the Trial by Jury, written in 1852. I was reading it the other day in court when a judge I respect stopped by to chat.
“What are you reading?” he asked innocently.
“Spooner, on jury nullification.”
The judge’s eyebrows arched. Nullification is a dangerous topic in a courtroom. Most judges hate it.
“I know juries can get it wrong,” I told him. “But there is no place left in American life where ordinary people can speak decisively to power. The polling place is a morgue. Juries can look the state’s minions in the eye and say ‘no.’”
The judge, a thoughtful man, paused before replying.
“Well, we all know juries can nullify.”
“Yes, but we pretend they can’t, judge. I think it’s time to change that.”
Jury nullification is the practice of permitting juries to decide not just the facts of the case, but whether the law should be applied to a given set of facts should be followed. Almost every state in the union prohibits the practice. The United States Supreme Court ruled more than a century ago, in Sparf v. United States, that judges were not required to inform juries that they have the inherit right to judge the law of a case. Since then, direct appeals to nullification has been on retreat in the federal courts.
Spooner, a man at various points an abolitionist, an anarchist, a socialist, a defender of those who rebelled against the United States in the Civil War, lacked formal training as a lawyer, but he read deeply in English legal history. He argued simply that juries have always had the power to judge facts and law. The practice is rooted in the law at the time of Magna Carta in 1215. Indeed, it predates the formal declaration of rights recognized by King John. It has roots in the Norman Conquest of 1088 and in the Saxon legal institutions that pre-dated the conquest.
His reading of certain of the texts on which he relies is strained, but the words of this nineteenth century visionary startled me, and it made me wonder whether we have become far more authoritarian as a society than I had realized. Oh, yes, we grant people the right to self destruct in terms of their lifestyles. We are a licentious, if not exactly liberty-loving people -- unless you are a sex offender, and then “off with your head.” But we have yielded far more power to government than Lysander could comprehend. We have done so because we have become, all of us, nihilists of a sort. Because we lack any sense of natural justice, we permit the state to define the terms and conditions of justice. Like sheep, we are herded into the various pens the law prescribes, afraid and unable to push back because the ground on which we stand shifts and swirls. It is not that the center no longer holds; the very concept of a centering sense of place in the universe is gone, replaced by chatter. Reason, as eighteenth century writers might say, has given way entirely to passions.
Spooner argues in a tone and in terms that surprised me. If we give to the state the power to sculpt not just the substantive rules of law governing our conduct, but also the rules of procedure and evidence requiring that these conflicts be resolved in a particular manner, we have given to the state the power of a slave master.
“But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested,” Spooner writes. “If this administration be in accordance with the arbitrary will of the legislator -- that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals, -- the government is a despotism and the people are slaves. If, on the other hand the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.”
But who, really, believes in the rights and power of conscience any longer? Today, all is obedience. We say the will of the people is expressed by lawmakers and that as individuals we must bend to requirements of legislative bodies. Judges kowtow to legislative intent. The people, juries, are neutered.
We have only ourselves, and a tortured intellectual history, to blame for this.
Central to the claims of jury nullification is a prior era’s confidence in the ability of Everyman to discern what justice requires. “Right reason” is said to shed light on justice. But who, really, believes that reason is such an efficacious tool? I recall reading Hugo Grotious and Samuel Pufendorf, early natural law theorists, with a professor in graduate school. I’d haul their massive tomes around with me and sit late at night in a sweat wonder just what “right reason” meant? It struck me as every bit the fictive device that the pineal gland served in Descartes’ Meditations: when all else fails, a blind act of faith is required to stitch together the mind and body, reason and will. I lacked enough faith at the time. Nihilism seemed inevitable, and so, too, a century of total war and a state powerful enough to fill every vacuum.
Reading Spooner today, as I encourage you to do, is a slap in the face. Spooner had confidence in the people, in their natural sense of justice. He was mistrustful of government. He would laugh at our easy confidence in the courts today, the schizophrenic wasteland in which prosecutors claim merely to be doing the will of lawmakers and judges sit by powerless to challenge either the legislature or executive branches when it comes to the particular requirements of the case being tried before their very eyes. If the courts are a wasteland today, blame nihilism. Blame fear of what juries, the people, would do if they were given the power to decide not just the facts, but the law, and,once having decided both facts and law, were given the power to decide what the consequences of their decision should be -- either in terms of criminal sentence or civil judgment.
Spooner argues that a liberty-loving people is not afraid of its own sense of justice. Such a people demands that justice be done whenever a courthouse door is opened. We’re a long, long way from liberty loving in the courts today. We don’t trust the people to do justice. We’ve made the pursuit of justice into a game and have so diluted responsibility for what happens to a person in court that the only person truly held accountable is the defendant in a criminal case. All other players, judge, prosecution, lawmakers, jurors, play bit parts. Only the anarchists have confidence today, and they are scorned as dangerous. Why? What is so fearful about freedom?
We live in this schizoid fog because we lack the confidence as individuals to say what is and is not just. Indeed, it’s chic in most quarters to view the very question as quaint, or perhaps, naive. We’re just like sheep, afraid to reason, and then following the man or woman bold enough to seize the shepherd’s crook. We love to complain about politicians, yet we follow them blindly. Because we lack the courage to say what is just, because we are nihilists at heart, we take what we get and hope for more. I wonder what would happen if we took our hopes more seriously, and if jurors began to say “no” simply because they can do so. I wonder what would happen if we casts more bricks than votes, if we had the courage to believe, as the anarchists do, the we do not need to be told what is just, that we know it in our bones.