In 1850 Spooner published A Defence for Fugitive Slaves, Against the Acts of Congress on February 12, 1793 and September 18, 1850, where he argued that juries “are judges of the law, as well as the fact” and are therefore justified in nullifying federal fugitive slave laws. “No man can be punished for resisting the execution of any law,” Spooner wrote, “unless the law be so clearly constitutional, as that a jury, taken promiscuously from the mass of the people, will all agree that it is constitutional.” Today we call this radical approach “jury nullification.”
Two years later, in Trial by Jury, Spooner developed his argument in full, expertly tracing the right of jury nullification back to the Magna Carta. “It is indispensable that the people, or ‘the country,’ judge of and determine their own liberties against the government,” he wrote. “How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?” According to Spooner, it was essential to distinguish between trial by jury, which meant trial by the people, chosen by lot, and trial by government, which was an illegal usurpation of the people’s power. “If the government may decide who may, and who may not, be jurors,” he wrote, “it will of course select only its partisans, and those friendly to its measures.” Furthermore, he said, if the government had its way, it “may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial…and exclude him if he be found unfavorable to the maintenance of such a law.”
Of course, that’s exactly what happens today when potential jurors who oppose the death penalty are prevented from serving on death penalty cases or when those who oppose drug prohibition are excluded from drug cases, thereby stacking the jury in the government’s favor. As Spooner presciently observed, “if the government may dictate to the jury what laws they are to enforce, it is no longer a ‘trial by the country,’ but a trial by the government.”
Damon W. Root, “Clarence Thomas’ Favorite Anarchist: The radical anti-statism of Lysander Spooner”, Reason, 2010-09-16
September 16, 2010
QotD: Trial By Jury
May 26, 2010
More on the Michael Bryant case
It’s rather surprising how strongly this Globe and Mail editorial expresses the paper’s approval of the decision not to press charges against former Ontario attorney-general Michael Bryant:
Everyone deserves justice, even a former Ontario attorney-general driving an expensive car who finds himself in an altercation with a cyclist in which the cyclist is killed. Irrespective of whatever wealth, power or connections Michael Bryant may have, he was an Everyman. Anyone might find himself in his place one day, reacting in fear and panic to a wild, unexpected aggressor, and subject afterward to police charges and condemnation by the community. When criminal charges were dropped against him yesterday, it was a good day for justice.
Much of what was publicly believed about Michael Bryant’s fatal encounter on Aug. 31, 2009, with Darcy Sheppard turns out to have been false. He did not swerve across a street and ram Mr. Sheppard into a light post or tree or mailbox. He was not speeding along at 60 to 100 kilometres an hour.
Nor were any of the terrible events that night emblematic of the problems that car drivers and cyclists have sharing the road. Mr. Sheppard was simply a man out of control. Given that he paid for his actions with his life, it may seem an unnecessary further blow that he now be publicly judged. But it is necessary, because another man, Michael Bryant, was facing up to life in prison if convicted of criminal negligence causing death. He, not Mr. Sheppard, had the power of the state lined up against him. And everything that happened proceeded inexorably as a result of Mr. Sheppard’s own actions.
Other than the initial flurry of interest in the case immediately following the incident, I didn’t follow the details. This is an excellent example of media coverage severely biased against the defendant: what little I thought I knew about the case made it seem to be an open-and-shut case of vehicular manslaughter. As the Globe editorial points out, very little of what I “knew” about the case (from the media) turns out to have been true.
April 23, 2010
QotD: Seeing the justice system through different eyes
By revealing how a city employee seemed to spend virtually all his time following her in a city truck, she has directed much-needed attention to city’s supervisory practices.
That’s in addition to highlighting, by explaining what it is like to be stalked, the nature of — and remedy for — a crime that can be devastating in its psychological effects, even if nothing worse happens.
De Blois, 40, who works at Youth Court, told The Gazette’s Katherine Wilton that at first she thought she could handle the situation herself. But in the months before the stalker, 49-year-old André Martel, was arrested, De Blois said she felt terrorized. She lost 23 pounds and had trouble sleeping.
Even after Martel pleaded guilty to criminal harassment and was conditionally released on bail, he continued to follow De Blois, she says. The lawyer suddenly saw the justice system through different eyes. “I can’t imagine what it must be like for a regular person who is not a lawyer, who doesn’t have contacts with a police officer or a crown prosecutor,” she said.
“Why were taxpayers subsidizing a stalker?”, Montreal Gazette, 2010-04-23
December 17, 2009
Judiciary to “fight back” against draconian Tory laws
It’s always nice when your secret opponents actually come out and say that they’re against you. Bob Tarantino shows how the Tories’ “draconian” penalties against criminals are opposed by the judiciary:
In the middle of an otherwise rote piece in a Toronto-area newspaper about how Stephen Harper is just too gosh-darn mean to criminals, there appeared this remarkable passage: “Judges are skilled at devising creative ways to fight back against laws they believe may skew the system. For example, Judge Cole said the elimination of two-for-one pre-trial credit has prompted judges to begin talking openly about forcing trials to be held more quickly. He said Canadian judges may also start compensating by intentionally lowering sentences: ‘That appears to have been the experience in other jurisdictions where Draconian sentencing policies have been forced upon the judiciary.’ ”
The passage is noteworthy for a number of reasons. Neither Justice Cole nor the newspaper’s justice reporter, both of whom can be assumed to have at least a glancing familiarity with the role of judges in our constitutional democracy, saw anything striking in characterizing the proper task of the judiciary as “fighting back” against laws they don’t like.
Nor do they find anything striking about a judge viewing duly enacted legislation as something being “forced upon” the judiciary — as if it were the judges who were being sent to jail.
And judges won’t just be “fighting back” against Parliament — in order to make good on the threat of handing down “intentionally” lower sentences, they will need to ignore case-law precedent. Evidently, neither Parliament nor the previous decisions of judges themselves will be allowed to stand in the way of the determination of certain members of the judiciary to treat convicted criminals lightly.
It’s no surprise that certain members of the judiciary think of themselves as being better able to determine what “appropriate” punishment might be . . . after all, within the statute and case law, that’s what they’re supposed to do. It’s the expansion of that notion that they know better and don’t feel they should be bound by the letter of the law. That’s several steps too far.
December 15, 2009
Heart-warming story of the day
Jon sent me this heart-warming story, and I thought it best to share:
A millionaire businessman who fought back against a knife-wielding burglar was jailed for two-and-a-half years yesterday. But his attacker has been spared prison.
Munir Hussain, 53, and his family were tied up and told to lie on the floor by career criminal Waled Salem, who burst into his home with two other masked men.
Mr Hussain escaped and attacked Salem with a metal pole and a cricket bat. But yesterday it was the businessman who was starting a prison sentence for his ‘very violent revenge’.
Jailing him, Judge John Reddihough said some members of the public would think that 56-year-old Salem ‘deserved what happened to him’ and that Mr Hussain ‘should not have been prosecuted’.
But had he spared Mr Hussain jail, the judge said, the ‘rule of law’ would collapse.
He said: ‘If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting the criminal justice system take its course, then the rule of law and our system of criminal justice, which are hallmarks of a civilised society, would collapse.’
Salem, who has previous convictions, has already been given a non-custodial sentence despite carrying out what the judge called a ‘serious and wicked’ attack.
Well, it’s nice to know that some judges carry the best interests of “society” close to their hearts. And he’s right, you know: society would indeed collapse if the courts were forced to spend their time trying and sentencing career criminals like Salem. They’re career criminals. Custodial sentences would interfere with their careers, which would be a serious infringement of their human rights. Can’t have that.
The courts, however, are well situated to send serious messages to wanton millionaires like Hussain, who need to be regularly reminded that their wealth and privilege does not give them rights over and above those enjoyed by normal non-millionaires. I have no need to remind you that non-millionaires are not allowed to defend themselves against criminals either.
So, clearly, justice is served.
In some parallel universe, anyway.
September 18, 2009
I didn’t think this was legal
Linked from The Agitator, a little bit of legal trivia . . . even if the jury finds you not guilty, the judge can still sentence you to prison anyway:
Indeed, my friends, welcome to our world.
Not only have many defendants been sentenced for stuff the jury said they didn’t do (or at least wasn’t proven), but yesterday the Supreme Court refused to do anything about it. The cert denial came in the case of Mark Hurn of my hometown, Madison, Wis. Hurn ate 15 years extra years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. It’s true. Though he was convicted of having powder cocaine in his house, (for which he was looking at two or three years in prison), he was sentenced to almost 18 years. Why? Because even though the jury acquitted him of the crack charge, the judge kind of figured he’d done it and therefore found, by a preponderance of the evidence that he’d done it, and sent him to prison as if the jury had actually said “Guilty” rather than “Not Guilty.”
We’ve gone far past the “let the punishment fit the crime” stage
A very disturbing post at Classically Liberal that I urge you to read:
What was once considering a normal rite of passage, typical curiosity that the newly sexualized young have about themselves, their bodies, and the bodies of others, has become a heinous crime. Not long ago a curious adolescent or child, caught exploring, or playing doctor in the back yard, was given a talking-to, sent to bed early, and warned to not do it again — a warning most heeded for at least another few years, after which time warnings were useless. Today, it has been criminalized, and criminalized in a way far exceeding crimes of violence. A youth who has sex with another youth, even if voluntary, could well face legal sentences far worse than if they had killed their friend.
The absurdity of charging a teenager with statutory rape for having sex with another teenager (and sometimes even charging each partner for victimizing the other) shouldn’t need to be discussed — it’s flat-out insane for the legal system to be involved in the vast majority of these cases. They shouldn’t even be cases!
It is literally true that a teen would be punished far less severely for murder than for consensual sexual contact with another teen. A murderer, after a trial is sentenced to a term in prision (with the possibility of parole/early release in many cases). After being released from prison, they’ve “paid their debt to society” and at least in theory can try to resume a normal life.
Someone who gets caught up in the “sexual offender” category will be punished for the rest of his or her life: once their names go on the official register, they will never, ever, be free again. They can’t work in any job that might mean contact with the general public (if they can even get hired at all). They can’t live within arbitrary distances of schools, playgrounds, or other areas where children might gather . . . which in practice means they can’t legally live anywhere.
How is this in any way proportional to the “crime”? How can this be called “justice”?
August 18, 2009
This is very much an unwelcome technical discovery
DNA evidence can be created to match a known profile:
Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases.
The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.
“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.”
H/T to Radley Balko.
