The Philodemic Room January 21, 2016
Resolved: Jury Nullification is a legitimate means of contesting unjust laws
The Philodemic Society barely escaped the howling winds of Friday’s blizzard on Thursday night as we returned to the Philodemic room to debate Resolved: Jury Nullification is a legitimate means of contesting unjust laws. Making his induction, Mr. William Muran (SFS ’16) of New York keynoted on the affirmation with your loyal amanuensis, Mr. Garrett Hinck (SFS ’18) of Pennsylvania. On the negation, Ms. Symone Wilson (COL ’19) of Virginia keynoted with Ms. Taylor Oster (SFS ’17) of North Dakota.
Mr. Muran began by quoting the Sixth amendment, reminding the audience that our Constitution guarantees the right to trial by jury, a practice which goes back to the Magna Carta. “Tonight the power of the jury is on trial,” for we were debating the practice of jury nullification, when a jury declares a defendant not guilty despite a clear violation of the law. Mr. Muran insisted that another form of nullification was hiding in plain sight: prosecutorial discretion. Using the example of the Fugitive Slave Act as an unjust law, Mr. Muran declared this debate was about who gets to decide which laws are unjust and that with nullification comes great power.
On the negation, Ms. Wilson opened by remarking how unusual it was for the Society to debate a legal topic. She clarified that this debate was not about nullification’s legality but its legitimacy. The central problem with nullification is that it confuses the role of judge and jury – the jury is only supposed to decide the facts of the case, not interpret the law. Recognizing nullification’s excesses, she argued that it depended on subjective interpretations of the law, that it could be used for evil ends as much as good ones. Maintaining that social change should not happen through secrecy, she used the acquittal of the murderers of Emmett Till to highlight the fallible nature of judgments about justice.
For the affirmation, Mr. Hinck stressed the role of justice in the legal system, highlighting nullification’s past uses, in refusing to implement the Fugitive Slave Act, it was a peaceful and legitimate part of our justice system. He declared that unjust laws must be fought everywhere and that injustice necessitates action. Thus, the moral responsibility of jurors in the case of a unjust law overrides their legal obligations. He reminded the Society that justice demands constant vigilance and it could be an enormously powerful way of fighting injustice in our legal system today.
Ms. Oster closed out the opening keynotes by framing the debate as the rule of law against civil disobedience, maintaining that unjust laws should be contested through the legislative process instead of the judicial system, which depends on order. She argued nullification was a misnomer, that the laws still stand and real change requires political change. She evoked the importance of the rule of law, of participating through commonly recognized means like voting to create change, decrying the disputed status of nullification.
Opening the floor speeches, Ms. Haag asked how can individuals make a difference when changing a law is such a difficult process? Recalling her strong opposition to the death penalty, she argued that jurors are American citizens and that we must trust them to identify such unjust applications of our laws. Mr. Taft (COL ’13) replied that for juries to subvert the rule of law would leave us in a world of subjectivity, saying they should stick to finding the facts. Mr. Gonzalez adroitly countered that either way we live in a world of subjectivity – people made our laws and they enforce them so the greater threat comes from the application of unjust laws, not the wrong uses of nullification. Making a rare appearance, Mr. Rosenberger called America’s legal system a ‘Wild West,’ rife with uncertainty. Ultimately, he was okay with leaving the creation of laws to elites and restricting juries to interpreting facts so we “muddle along well enough.” Mr. Willis demanded more perspective from the floor, contrasting America’s common law tradition with the civil code tradition of many other nations that treats law as an administrative function. He termed uncertainty the ability to interpret and change laws, of which nullification is yet another example. Ms. Hernick returned the focus to individual jurors, saying they were people too. She described the lengthy process of jury selection, arguing it weeded out the people who had any experience with the types of crimes on trial – raising the problem that jurors simply do not know enough to make a determination of justice.
As non-member speaking time began, Mr. Joshua De Gastyne (GUSOM ’19) evoked the Nuremberg trials and Hannah Arendt’s treatise on the banality of evil. He asked if jurors should be asked to simply check boxes even in a deeply unjust legal system – and that if we can find ways to justify even violations of our strictest laws, we can justify nullification. On the negation, Ms. Madison Ferris (COL ’19) reminded the floor that judges too exercise discretion through judicial review and that prosecutors were not bad people at all. In response, Mr. Micah Musser (COL ’19) argued that because nullification was ineffective that did not mean it was illegitimate, rather ‘contesting unjust laws’ meant making a public political statement. Ms. Allie-Marie Schapp (SFS ’19) asked if this was a truly legitimate use of jurors’ power when they took an oath to only look at the evidence.
Returning to member speaking time, Mr. Graff eviscerated the non-sequiturs of the negation, and after closely scrutinizing each word of the resolution, nullification was obviously a way of protesting a law. Ms. Grace strongly disagreed with Mr. Graff, reminding the floor that activism is often double-sided, that nullification could be used to evil ends by juries, which do not represent the population accurately. Vice President Little acknowledges the imperfection of our legal system, asking the floor to consider what the individual duties of a juror were when that person sees a law as unjust. In response, Mr. Schafer forced the floor to consider some unpleasant truths – that juries often must abide injustice so that due process is followed and laws can be contested through the appeals courts, a process nullification prevents. Storming the floor, President Thanki asked what if a person could not afford the lengthy appeals process? I can do something for one person is an effective means of using one’s power as a juror, that nullification represents taking matters into your own hands as a juror.
However, Chancellor Whelan brought up the context of the courtroom, contesting the contention that nullification occurs in isolation. To nullify is to perjure yourself, as jurors swore a solemn oath to uphold the law. “We cannot build justice on a foundation of lies.” In a clash of former presidents, Chancellor Ringwald replied that as a consequence, we should make it easier to disobey unjust laws, saying that nullification ought to be used to fight centuries of criminalization of being black in America. Mr. Shaughnessy warned of the disastrous practical consequences of nullification on the efficiency of the justice system while Mr. Musgrave claimed nullification for conservatism as essential to justice at the last possible moment in the justice process and as an example of local governance for ordinary people. Ms. Griffin argued that this nullification would undermine the rule of law by decreasing the predictability of our justice system and laws, because with nullification, we do not know if the law will be applied. Closing out the floor speeches, Ms. Hu rebutted Ms. Griffin by arguing that legitimacy comes not only from rule of law but also the people and nullification is how people can get involved in justice.
Returning to the stand, Ms. Oster brought up the president’s power to pardon to argue that nullification was not the last line in a person’s defense against injustice. She maintained that there is a mechanism for changing unjust laws: the legislative process. Bringing up the idea of the tyranny of the minority, she condemned juries for the ultimate subjectivity of their decision to go against the rule of law.
Mr. Hinck decried the incoherence of the negation’s arguments, saying that the affirmation simply wanted the jury to posses the same power as a prosecutor. Asking the Society to imagine a totally unjust legal system, he argued that juries are meant to be the conscience of the community. To him, the rule of law pales in importance to the duty to disobey unjust laws, thus words are wind, the jurors’ oaths should not bind in the face of injustice. Closing with a quote from Robert Kennedy on how individual acts of courage can change human history, he asked what was the point of letting an innocent man go free?
Ms. Wilson argued that despite the affirmation’s inspiring rhetoric on injustice, the debate had perhaps misconstrued the issue. She said that jury nullification could not be used to change the minds of white people, that racist mindsets could not change. The meaning of injustice is subjective enough to be different to everyone, it is indeed an inherently emotional process which should not play a role in justice. She ended her eloquent speech by giving a rousing rounds of thanks to all who came to see her and her father.
In the final speech of the night, Mr. Muran began by saying matters are subjective on both sides, and yet the problem is with the fact that prosecutors are ‘trained men,’ who have lost sight of the terrible power of condemning a person. Quoting the Socratic paradox, ‘the more you see, the less you know,’ he argued that matters of justice have been deemed too important to be left to trained men. Drawing a parallel to Christianity, Mr. Muran likened the 12 apostles to God’s jury, twelve ordinary men who were sent to implement God’s justice on Earth. He cited the importance of ordinary people in finding justice.
With 29 negating, 2 abstaining, and 44 affirming, Resolved: Jury Nullification is a legitimate means of contesting unjust laws was affirmed. A hearty round of congratulations to our inductees, and to give a personal note, it was a tremendous pleasure and treat to keynote with all these amazing people.