Tag Archives: Bill of Rights

Occupy the Justice System: Jury Nullification

Woman pepper-sprayed. Photo from BagNewsNotes.com

“I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”
Thomas Jefferson

The Occupy movement has been instrumental in not only changing our national conversation on issues such as poverty and massive income inequality, but on shedding an unwavering light on the corporate criminal class too. The movement has these moneyed thugs shaking, and one need look no further for evidence of this than in the violent, disproportionate use of force on occupations across America. Perhaps just as importantly, Occupy has inspired a new generation of activists, as well as formerly apathetic ones (mine included) to shake off despair and fear, and join the struggle.

These past few months have been a crash course in what an oligarchic police state looks like, as well as what it truly means to exercise peaceable assembly for a redress of political grievances. At its most fundamental level, the movement has been a wild civics lesson in what it truly means to be a citizen, and how to fight for a better country.

The next civics lesson? Teaching our fellow citizens about another subversive tool that, if Occupy can manage, will change the way Americans participate in our dysfunctional criminal justice system: jury nullification.

Consider the fact that the United States jails more people per capita than any other country in the world: 2.3 million Americans are currently behind bars, and a staggering 25% of those cases are for nonviolent drug offenses. Not only that, but the majority of those incarcerated for these offenses are predominantly African American. This is taking an unimaginable toll on their community. Empowering jurors with the knowledge of jury nullification might be a tremendous first step in correcting an out-of-control criminal “justice” system, and would have the added effect of boldly challenging a monstrous prison-industrial-complex.

Secondly, the power of jury nullification could have far-reaching effects for sustaining and even emboldening the Occupy movement. This is not hard to imagine. Consider this hypothetical:

A group of protesters are on trial for a peaceful sit-in at an empty school or financial institution, in which they were arrested for, say, defiant trespassing. The protesters make the case that they engaged in civil disobedience in order to shed light on an injustice done to the community, such as a school closure due to unfair austerity measures, or predatory lending practices which result in community members getting kicked out of their homes. Now imagine a jury informed of their right to base their verdict on conscience, instead of a modern legal system which is often incapable of flexibility when it comes to cases involving civil disobedience. The jury would not be bound to issue a verdict within the confines a judge (who would not inform them of the right to nullify) has set for them, but instead weigh the merits of a statute in which no one was physically harmed and the “crime” itself was done out of an educated, moral concern for society. They refuse to convict the defendants, despite the fact that the protesters clearly broke a trespassing law. They would have based their verdict on the belief that the law, as applied to this particular circumstance, is unjust – and not on reasonable doubt.

Now take this a step further and imagine if juries across the country began voting this way. It would have the effect of nullifying laws considered unjust. This has already happened in Montana:

In Montana last year, a group of five prospective-jurors said they had a problem with someone receiving a felony for a small amount of marijuana. The prosecutors were freaked out about the “Mutiny in Montana” and were afraid they were not going to be able convince12 jurors in Montana to convict. The judge said, in a major New York Times article, “I’ve never seen this large a number of people express this large a number of reservations” and “it does raise a question about the next case.”

It may have also played a significant role in ending alcohol prohibition and the criminalization of gay sex.

There is a storied precedent for this right of juries, dating back to the year 1215 with the inception of the Magna Carta. Another “high profile” example of this can be found in the story of Pennsylvania’s own William Penn. A more notable instance of the use of jury nullification can be found in the history of the Fugitive Slave Act during the 1850s.

Indeed, the right of juries to nullify is embedded in our very own Bill of Rights.

How exactly to go about informing juries can be dicey, as the example of a retired chemistry professor named Julian P. Heicklen shows:

Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by.

Despite the obvious resistance from authorities this effort will create, it’s certainly a new front that the Occupy movement should – and must – open, as it already has with other facets of the American criminal justice system.

Editor’s note: The Project is heading to Washington, D.C. to cover the #J17 events this month. We cannot do it without your generosity, so if you enjoy the coverage and celebration of protest culture that we provide, please consider a small donation of just $10. Thanks so much for your continued support!


Civil OBEDIENCE Will Kill Us If We Let It.

Photo by Ariel Shearer

By Ariel Shearer

Editor’s Note: The Project is proud to introduce our latest contributor, Ariel Shearer (@arielshearer). Ariel is studying journalism and political science at Emerson College, and is the web producer at The Boston Phoenix (@BostonPhoenix). This editorial is cross-posted on Ariel’s blog, Wait, What is the Internet?

After reading this article in the New York Times’ 9/11 supplement: “Civil Liberties Today” by Adam Liptak — I’ve been thinking a lot about our currently wayward democracy and the widespread youth apathy epidemic.

After reading an article from 1970, titled “The Problem is Civil Obedience” by Howard Zinn — similarities between now and then are scary.

I was inspired to write this essay in response to a prof question.

What are the implications of Zinn’s argument regarding the law and its relationship to powerless groups?

Zinn is quite clear in his message – those rendered “powerless” by the political system itself are in fact well-endowed with the power of opposition. As we read last week, “America is a country founded on dissent” (Haynes). The power of opposition is the power that wrote the Bill of Rights and Declaration of Independence. Just plain power – as the government would have us believe in these times – is something that comes from money, clout, and peer support. That means someone like a politician. This is a convenient and self-establishing definition.

But where do these politicians really come by their power? The doctrine meant to limit government powers (Bill of Rights) is where they take their authoritative roles from, written both implicitly and explicitly and further defined/assigned by the Supreme Court. The Supreme Court is supposed to be a detached body – and historically is seated by fogies far older than popular opinion. Due process seems to flow at the same speed as it did when the Bill of Rights was written. The Internet generation can’t even comprehend such ineffectiveness in their video games, so watching the snail’s pace of politics has left most of them a bit bored.

What I wish I could tell the rest of my generation to try and wake them up, to demand a government that reflects the speed at which they think and grow: The same words used to tell the government what they cannot do to us (and therefore what they can do to us) are the same words used to defend and protect all that we can do as citizens – we all share the same source of power. And we’re all promised life, liberty, and the pursuit of happiness. And as a society it’s obvious we settle for 1 out of 3.

How does the government exercise power? They influence our lives oppressively with taxes and policing, and positively by providing socialized services like public transportation and fire stations. It’s important to remember, however, when the government tries to use social works as a bargaining chip –that they are humans too. Politicians have families and homes they wouldn’t want to see burn to the ground because they couldn’t afford to hire fire fighters.

Politicians are citizens that directly benefit from the same services they demand praise and votes for providing to society.

This game of ideological tug-of-war between who knows best, the people or the government, has existed as long as politics itself. Somehow, over hundreds of years, societies managed to evolve and progress, to demand better qualities of life and better government… The existence of social democracies like France and the United States, the most progressive form of governance to date, proves the effectiveness of rebellion, opposition to government, and social revolution.

Tracing history from Hellenic Greek times proves that it isn’t the state leaders who enable progress within a society –but rather it is the opposition to political leadership, the People, who fuel progress. The People have consistently reformed government just as consistently as state leaders have overstepped their totalitarian roles throughout history.

One of the most hard-hitting points Zinn makes in The Problem is Civil Obedience, is the mass devastation caused by civil obedience, by following the demands of government without opposition. His example is Hitler – and I think that says everything that needs to be said about that.

When we adhere, and obey, it’s much like settling into a cubicle knowing you’ll never take a greater role within that company. We must constantly push our government, and encourage our fellow citizens, to demand progress — because despite apathy being “the new black,” history has taught that it’s up to us, the “powerless,” to improve society for all living humans, and for all future generations to come.

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