Jack Dunphy in Pajamas Media, writing about The Wire, jury nullification, and the drug war:

Some addicts can and do clean up, but will legalization make honest citizens out of drug dealers willing to kill over control of a street corner?

The argument for drug legalization is a rational one, but it is not one that I, after more than twenty years as a cop in Los Angeles, can endorse. Watching Bubbles [an addict on the series The Wire] struggle with his demons over these last five years, I was often reminded of a heroin addict I arrested years ago. As I was about to close the cell door on him, I asked him if he thought heroin should be legalized.

“No way,” he said.

I asked him why not.

“If you legalize it,” he said, “pretty soon everybody will be like me.”

The piece gives away the ending of The Wire, a show I haven’t seen, so I admit I let my eyes run over the piece, trying to overlook any passage that looked like it might give anything away. Be warned.

[Guest post by DRJ]

Following up on Patterico’s nullification posts, I read this non-precedential Fifth Circuit opinion and wondered: Do judges nullify?

“At defendant Jason Dejuan Leatch’s post-Booker resentencing, Leatch sought a downward sentencing departure based on the purported unfairness of the Sentencing Guidelines (“Guidelines”) because 100 times more powder cocaine than crack cocaine was required to trigger inclusion in a given sentencing range. See United States v. Leatch, 482 F.3d 790, 790 (5th Cir. 2007), abrogated by Kimbrough v. United States, 128 S.Ct. 558. After a lengthy discussion with defense counsel how the United States Sentencing Commission’s proposed 20:1 ratio would affect Leatch’s sentence, the district court elected to make a downward departure and impose a below-Guidelines sentence based on its disagreement with the Guidelines’ disparity between crack cocaine and powder cocaine offenses. The court stated:

I’m varying in this case because I think the 100-to-1 disparity between powder cocaine and crack cocaine is inappropriate. I’ve followed with great interest the thoughtful district court decisions that address that. I am not going to attempt to restate on my own the various reasons for that. But for the reasons reflected in those decisions and also reflected in the Sentencing Commission’s determination that the 100-to-1 ratio was inappropriate. . . . [a]ccordingly, I’m going to follow what I understand to be the Sentencing Commission’s recommendation and use a 20-to-1 ratio.”

By using the 20-to-1 ratio, the district court imposed a sentence of 62 months less than the 100-to-1 ratio would yield. In the sentencing appeal, the Fifth Circuit vacated the sentence on the ground that “a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.”

On appeal from the Fifth Circuit, the Supreme Court remanded in light of Kimbrough and Gall that held sentencing guidelines are not mandatory. In this opinion, the Fifth Circuit remanded the case for resentencing and cautioned the district court judge:

“On resentencing, the district court must take care — especially if it decides to deviate from the Guidelines — to articulate how its sentence satisfies the statutory criteria.”

There was also a slice of humor in this case. Note the defendant’s name from the caption:

“UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JASON DEJUAN LEATCH,
ALSO KNOWN AS CRIPTONITE
Defendant-Appellee.”

Defendant Leatch and his attorney convinced a federal district judge to sentence him to substantially less time than the sentencing guidelines required.

Maybe he does have super powers.

— DRJ

Those of you who think that juries should be allowed to judge the fairness of the law as well as whether the defendant is guilty: answer me this. If you’re going to judge something, shouldn’t you be given all the facts relevant to that decision?

Because you aren’t getting them under the current jury system.

So, for example, if you’re going to take it upon yourself to decide whether to vote guilty or not based on the sentence you think the defendant will get, shouldn’t you be told exactly what the sentencing options are, and the full details of the defendant’s record — including the facts of his previous offenses and how long he spent in prison for each offense? Shouldn’t you be told about similarly situated defendants and what they received?

You aren’t getting those facts under the current jury system.

If you are going to vote based on your view that drug peddling is a victimless crime, shouldn’t the prosecution have the chance to show the way the defendant’s drug dealing has victimized the neighborhood? Shouldn’t you hear from the neighbor who constantly begs the cops to get these dealers (including this defendant) off the street because they are dealing drugs in front of schoolchildren? Shouldn’t you hear from the family of the addict whose life, and the lives around him, have been ruined by the poison the defendant has peddled? Shouldn’t you hear from the experts who have studied the likely effects of legalization and concluded that it will result in more narcotic usage in society as a whole, including more drug usage by children?

But the authors also found that any form of legal commercial sales would significantly increase the amount of drug use in society. Even if each drug user consumed fewer drugs, an increase in the total number of people using drugs could translate to more problems, overall, for society.

You aren’t getting those facts under the current jury system.

How can you make a decision if the parties aren’t even allowed to present evidence on the question you have taken it upon yourself to decide?

It seems to me that if you favor nullification, one of two things is true: either 1) you have to be confident in your ability to make decisions on these questions without evidence presented by both sides — in which case you are arrogant and overconfident of your own superior knowledge — or 2) you have to support an incredible liberalization of the rules of evidence, along the lines of the proposal I set forth in this post. Read that post, in which I (somewhat hyperbolically, but only somewhat) propose doing away with the rules of evidence and telling juries every possibly relevant fact, including the defendant’s criminal history, gang membership, etc. Then tell me whether I’m really an elitist who wants to hide evidence from juries.

If we implemented that proposal, I’d be a lot more comfortable with giving jurors the authority to decide the law as well as the facts.

Now see if you can find a single defense attorney on God’s Green Earth who would feel comfortable with that proposal. You won’t . . . because they know that jurors knowing all the facts — including the full details of the defendant’s criminal history, gang ties, and so forth — would result in more convictions, not fewer.

This one is simple and straightforward.

Assume you’re a juror in a criminal case where you think the defendant is clearly guilty beyond a reasonable doubt — but you also believe that a conviction would be unjust. Maybe you disagree with the law on its face; maybe you just disagree with its application in this particular case. For whatever reason, a conviction is clearly the legally correct thing to do, but it might bother your conscience.

Would you ever convict in such a situation?

In other words, if you perceived a conflict between the demands of the rule of law and the demands of your conscience, would you always go with your conscience? Or can you imagine a situation where you decide that the consistent application of the rule of law is more important than your conscience?

If so, how would you decide when to apply the rule of law instead of your conscience?

I use words like “ever” and “always” in this post because I am trying to find out how absolute people’s views on this issue are.

FOLLOW-UP QUESTION: If your answer is that you would never convict in such a situation, then what would you do if faced with a choice between your conscience and the rule of law? Would you simply vote to acquit? Or would you tell the judge that you shouldn’t be a juror any more, because the law is telling you to do one thing, but your heart is telling you to do something else?

I’m going somewhere with this, but I want to see the comments before I continue. I’ll have a follow-up post tomorrow; leave a comment and then stay tuned.

In our recent discussions about jury nullification, some of you were pretty cavalier about perjury, and the concept of respect for the rule of law. I explained that jurors must take an oath to apply the law as set forth in the judge’s instructions — and jurors are always asked beforehand whether they would agree to do so. That means that, unless you are blindsided by the content of the judge’s instructions, you generally can’t nullify without first perjuring yourself. (And it’s rare that jurors will be blindsided, because in any case where nullification is a possibility, there will be extensive and detailed questioning in jury selection about jurors’ disagreements with, and ability to apply, the applicable law.)

Some bloggers and commenters came up with various ways to rationalize lying to (or misleading) the court — under oath — about whether you’d apply the law.

This question is directed at those of you who supported perjury to undermine the rule of law by nullifying in a court case:

What was your position on the Clinton impeachment, and why?

Just curious.

Most Republicans supported impeachment under the theory that, under the rule of law, nobody is allowed to lie under oath — even if they feel (as Clinton and his supporters did) that the questions are inappropriate, or stem from an improper political motivation.

Does opposition to perjury and support for the rule of law depend upon whether the guy on the hotseat is a libertarian martyr, as opposed to a hated President?

P.S. My guess is that there are not a lot of people who supported both the Clinton impeachment and jury nullification. But there are probably a few of you. That’s who I want to hear from. If you are consistent on this issue — and I’m guessing plenty of you are — I can’t stop you from boasting about it at length in the comments. But you’re not really the people I want to hear from.

P.P.S. A lot of people are trying to leap ahead to see where I’m going with this. Humor me and don’t pretend you already know my point. Just answer the questions: if you would lie to get onto a jury to nullify, where did you stand on the impeachment — and why?

P.P.P.S. Nobody is stepping up to the plate. You people are pathetic. I mean that in the nicest possible way.

There are few absolutes in this world. That doesn’t invalidate general principles.

For example, I believe soldiers should follow orders.

But if a superior orders the soldier to murder a young child out of revenge for another soldier’s death, the soldier should disregard the order.

Am I a liar for having claimed that I believe soldiers should follow orders?

No. The fact that you can posit a very rare scenario to the contrary does not invalidate my basic principle: soldiers should follow orders. It simply means that there are few absolutes in this world.

Similarly, let’s assume you are against torturing people by poking out their eyes. If I could paint you a scenario where you could save millions only by torturing an evil man by poking out his eyes, you’d do it.

That doesn’t mean you’re for it. And it doesn’t render your statement of opposition meaningless.

I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency.

I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.

That doesn’t mean I support jury nullification.

The jury is an important bulwark against the state.

But if a drug dealer is the scourge of a Compton neighborhood, creating a heightened risk of drive-by shootings from rival drug dealers, as well as a generally lower quality of life, the people of that neighborhood should not be subjected to that drug dealer because some wine-sipping libertarian from the Westside decides that, in his opinion, drug dealing is a victimless crime and he won’t convict even if the evidence is overwhelming.

Let the wine-sipper lobby his Assemblyman, or start an initiative. The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.

This is my point.

I think we all agree that police should not lie under oath, even as to matters of probable cause, even when the defendant is clearly guilty. Their oath is more important than any private desire to see what they believe is “justice” served in any one particular case — if “justice” means twisting the law and violating their oath. Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?

P.S. It’s a dodge to say that the Constitution provides for (or the Founding Fathers believed in) jury nullification. The oath is a promise to follow the court’s instructions, not some abstract view of “the law” as you believe the Founding Fathers intended you to apply it.

Would you take the oath, or not? Would you faithfully apply it, or not?

Let the rationalizing begin!

(Remember to mention Nazis!)

Radley Balko says of jury nullification: “Not only is this your right as a juror, some would say it’s your obligation.”

And some would say it’s jury misconduct.

In a competent judge’s courtroom, all jurors are asked if they are willing to follow the law, regardless of whether they agree with it. They must answer this question in the affirmative or they cannot sit as jurors. And they must answer this question under oath.

How would you answer that question, Radley Balko? Would you lie under oath to protect what you believe to be your “right” and “obligation” to disregard the law?

UPDATE: I’ll have much more on this in coming days. I see a parallel between nullification and judicial activism. Both are “doing what’s right” at the expense of the law — and as such, both pose a similar peril to the rule of law.

UPDATE x2: In my promised post I will address, among other things, Balko’s statement:

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

“In fact,” that latter quote is not from a Supreme Court case, but from a case decided by the District of Columbia Circuit Court of Appeals. (U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).) That case contained plenty of warnings concerning the dangers of nullification, and held that juries need not be instructed that they have a power to nullify. The other case, Morissette v. United States, 342 U.S. 246 (1952), does not read to me as an affirmation of juries’ authority to nullify, just a recognition that they have the power to do so (which I don’t dispute). More in my upcoming post, perhaps over the weekend.

UPDATE x3: For those who still don’t get it, let me quote some language from the California Supreme Court:

Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

People v. Williams (2001) 25 Cal.4th 441, 463.

Got it?

UPDATE x4: I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended.

[guest post by Dana]

George Will has a thought provoking opinion piece proposing that we amend the Constitution to prevent senators from becoming president. In reading it, it sure sounds like an effort to protect voters from themselves, as much as anything else. But is it really the job of the government to protect us from our own worst inclinations in the voting booth or before we get to that point? I don’t think so. Moreover, the unhinged president who attacked the Rule of Law, and even now continues to work to overturn the 2020 presidential election and consistently lies about it was never a Senator, so…

To conserve the reverence it needs and deserves, the Constitution should be amended rarely and reluctantly. There is, however, an amendment that would instantly improve the legislative and executive branches. It would read: “No senator or former senator shall be eligible to be president.”

Seventeen presidents were previously senators. Seven of them – Harding, Truman, Kennedy, Johnson, Nixon, Obama, Biden — became senators after 1913, when the 17th Amendment took the selection of senators away from state legislatures. The federal government’s growth, and the national media’s focus on Washington, has increased the prominence of senators eager for prominence, although it often is the prominence of a ship’s figurehead — decorative, not functional. As president-centric government has waxed, the Senate has waned, becoming increasingly a theater of performative behaviors by senators who are decreasingly interested in legislating, and are increasingly preoccupied with using social media for self-promotion.

In Jonathan Haidt’s recent essay for the Atlantic, “Why the Past 10 Years of American Life Have Been Uniquely Stupid,” the New York University social psychologist says social media users by the millions have become comfortable and adept at “putting on performances” for strangers. So have too many senators. Haidt says social media elicits “our most moralistic and least reflective selves,” fueling the “twitchy and explosive spread of anger.”

Politicians, and especially senators with presidential ambitions and time on their hands, use social media to practice what Alexander Hamilton deplored (in Federalist 68) as “the little arts of popularity.” Such senators, like millions of Americans, use social media to express and encourage anger about this and that. Anger, like other popular pleasures, can be addictive, particularly if it supplies the default vocabulary for social media.

Today, the gruesome possibility of a 2024 Biden-Trump rematch underscores a Hamilton misjudgment: He said in Federalist 68 there is a “constant probability” of presidents “pre-eminent for ability and virtue.” Banning senators from the presidency would increase the probability of having senators who are interested in being senators, and would increase the probability of avoiding:

Presidents who have never run anything larger than a Senate office. Who have confused striking poses — in the Capitol, on Twitter — with governing. Who have delegated legislative powers to the executive — for example, who have passed sentiment-affirmations masquerading as laws: Hurray for education and the environment; the executive branch shall fill in the details.

And who have been comfortable running the government on continuing resolutions (at existing funding levels) because Congress is incapable of budgeting. There have been 128 CRs in the previous 25 fiscal years — 41 since 2012. Why look for presidents among senators, who have made irresponsibility routine?

The 328 senators of the previous 50 years have illustrated the tyranny of the bell-shaped curve: a few of them dreadful, a few excellent, most mediocre. Although Josh Hawley, Missouri’s freshman Republican, might not be worse than all the other 327, he exemplifies the worst about would-be presidents incubated in the Senate. Arriving there in January 2019, he hit the ground running — away from the Senate. Twenty-four months later, he was the principal catalyst of the attempted nullification of the presidential election preceding the one that he hopes will elevate him. Nimbly clambering aboard every passing bandwagon that can carry him to the Fox News greenroom, he treats the Senate as a mere steppingstone for his ascent to an office commensurate with his estimate of his talents.

This, of course:

Does [George] Will believe that Barack Obama was less suited to be president than Donald Trump?

–Dana

Under Barack Obama, leftists relentlessly pursued national laws to address every possible issue, from health care to gun control. But all of a sudden, pieces in left-leaning publications indicate that some leftists, faced with a federal government controlled by Republicans, are starting to muse about the merits of states’ rights.

And I think it’s wonderful. Amusing . . . but wonderful.

We’ve seen the spectacle of Jelani Cobb at the New Yorker citing the example of the Virginia and Kentucky resolutions from 1798-1799, for crying out loud, in defense of state nullification of federal laws. In a similar spirit, Jeffrey Rosen writes in the New York Times:

Having lost all three branches of the federal government again, progressives are now concluding that they have no alternative but to redouble their efforts at the local level. . . . [S]ome important progressive victories have already occurred in blue and red state referendums. On Nov. 8, voters in three states (California, Nevada and Washington) voted for stricter gun control. Four states (Arizona, Colorado, Maine and Washington) voted to increase the minimum wage. Four Trump states (Arkansas, Florida, Montana and North Dakota) passed ballot measures allowing or expanding the use of medical marijuana, while California, Maine, Massachusetts and Nevada voted to legalize the use of recreational marijuana.

. . . .

Whether the Republican White House, Congress and Supreme Court allow progressive federalists to get away with that will depend on whether Republicans prove as devoted to states’ rights now that they control the federal government as they were when they were the ones in the wilderness.

Many Republicans will indeed shed their devotion to states’ rights, of course — because (like many leftists) they care more about their preferred policy outcomes than about the constitutional structure of our government.

But some of us are willing to help the left make structural changes in favor of federalism — if the changes are designed to outlive the Trump administration, and rein in the left as well as right.

Some of the proposals by leftists are inappropriate, such as urging locals to establish more sanctuary cities and resist federal efforts to enforce anti-immigration laws. Immigration is one of the few issues that is national in character, and efforts to resist our federal laws are not rooted in federalism.

But, by contrast, if the left wants to enable states and local communities to make decisions that the Constitution leaves to the states, I’m all for it. If they suddenly want to help us make long-lasting structural changes to our government that favor states’ rights, I’m in. If they want to help set precedents to rein in the federal government at all times, and not just when Republicans are in charge, I agree.

One of the less shrill and more reasonable arguments has been made by conservative Democrat Joel Kotkin at the Daily Beast, who appears to have a principled view of the possible benefits of local power for both the right and the left:

What Americans across the political spectrum need to recognize is that centralizing power does not promote national unity, but ever harsher division. Enforced central control, from left or right, polarizes politics in dangerous ways. The rather hysterical reaction to Trump’s election on the left is a case in point, with some in alt-blue California calling for secession from the union. Had Clinton and the Democrats won, we would have heard other secessionist sentiment, notably in Texas.

This is no way to maintain a “United” States. Under Obama, conservative states resisted ever expanding federal executive power; now it’s the progressives’ turn to worry about an overweening central state.

. . . .

In his drive to make America “great” again, the new president needs to revitalize our flagging democracy not by doubling down on federal power but by empowering local communities to determine what’s best for them. Anything else gives us a choice between ideological despotisms that can only enrage and alienate half of our population by forcing down their throats policies they can’t abide, and, in most cases, should not be forced to accept.

I, for one, welcome our new friends in resisting our federal overlords. The sentiment isn’t going to last long; the second the leftists think they can regain federal power, they’ll chuck federalism overboard. Let’s strike while the iron is hot.

Let’s make the changes structural, so they can’t change them back when they feel like it. Let’s start with an Article V convention to carry out some of the proposals made by Texas Gov. Greg Abbott, like “Allow[ing] a two-thirds majority of the States to override a federal law or regulation” or “Prohibit[ing] administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.”

Come on, progressives! Let’s do this! Call it opposing Donald Trump if you like. That’s fine with me.

Hurrah for decentralization!

P.S. If these ideas appeal to you, consider joining my group the Constitutional Vanguard, which supports liberty, the free market, and the Constitution. We have a private Facebook group and a private forum to promote those issues. Join us!

[Cross-posted at RedState.com.]