Thought 4: Generally, those sorts of people tend to not be serious rationalists. Reasoning as if I can expect correlations among our decision algorithms seems questionable.
No kidding.
If I were you, I would first concentrate on getting the other jurors to reason correctly about the facts of the case, which is, ahem, enough of a problem.
(Though apparently—and outrageously—one has to be careful here: I know a mathematician who once served on a jury and was accused of juror misconduct for presenting “facts not in evidence” to his fellow jurors, namely “the mathematical theory of probability”!)
With regard to the moral issue of nullification, it seems to me to be quite clearly a quantitative issue of how egregious the law is and how draconian the punishment is likely to be. By no means do I see any general policy of the form “always nullify when you don’t like the law” or “never nullify” as reasonable.
I’ll explain the case against an “always nullify” rule, since I expect that will be more counterintuitive to most folks here.
Getting a society’s rules to be codified into written law represents great progress, in the overall scheme of things. Back in the old days, whether you got to live in peace or thrown into a dungeon and your head cut off was determined by whether the overlords liked you or not—and the rules for pleasing them weren’t written down anywhere, certainly not in any form such that you could appeal to them and say “but you didn’t follow the rules!”
Well, that’s still fundamentally the case, except that we’ve gotten slightly better about it now. There are written laws, and, at least in theory, there are courts where you can go and say “but the government’s position is incoherent!” and have that actually, you know, matter. But much of this formidable-looking edifice of a legal system is still something of a fiction. Laws are still written without the intention of their being taken literally, or even necessarily enforced at all: they’re there so that the authorities have a “legitimate” pretext in case they decide they don’t like someone and want to go after them. And there are so many laws, of such obscurity, that essentially everyone is probably violating a bunch of them, and so at the end of the day we’re at the mercy of the people in power just like we always were. It’s not quite as bad as it was in the old days, but the difference is merely quantitative. We still have further progress to make toward the ideal of explicit rules that will protect us from the arbitrary caprices of The Man.
Now what does this have to do with jury nullification? Well, consider which direction on this axis you’re pushing in by adopting a policy of disregarding the written law and making policy ad-hoc while in a role not legally authorized to be a policy-making role. You may think you’re helping to correct an imperfect set of rules—and perhaps you are—but you’re also at the same time helping to enshrine the notion that the text of the written law doesn’t really matter. If people thought the law actually mattered, they’d be much more careful about which laws they passed. However, as long as the notion persists that laws need not be taken literally, legislatures will continue to pass symbolic laws that will be enforced unsystematically, making everyone—particularly society’s envelope-pushers—continually vulnerable to the whims of prosecutors and the like.
(Though apparently—and outrageously—one has to be careful here: I know a mathematician who once served on a jury and was accused of juror misconduct for presenting “facts not in evidence” to his fellow jurors, namely “the mathematical theory of probability”!)
Really? Not a witness, defendant, lawyer, but a juror used their knowledge of probability and that counted as bringing in “facts not in evidence”??? What’s the point of having a jury if the jury members can’t, you know, actually make any use of their knowledge? What’s next, “basic reasoning skills are not part of the actual evidence, so you’re not allowed to think when deciding”? Excuse me, I have to go foam at the mouth now. :p
Anyways, as far as the rest, that essentially is part of my concern. (Though you detailed it much more completely than my own thoughts did, but fuzzy thinking along those lines was part of my concern)
Hence my quandary: If presented with a drug use case, should I nullify if defendant is “guilty”?
It seems to me that it might be possible to extract some of these intuitions without all of them.
For example, say that the “rules as written down” are something along the lines of “we get a group of your peers to determine whether you’ve done something wrong, and if you have what it is. Then we decide based on precedent what your sentence is.”
In that case, members of the jury are capable of deciding that defendants have not done anything wrong, even if there is a specific punishment listed for what the defendant did.
I don’t mean to argue that this is what is the case, for example I don’t believe that the rules I described are a good representation of US criminal law. But that is a fact about the specific system you are involved in; I don’t believe that it is a priori problematic to have “jury nullification” in the sense of jurors acquitting persons who committed “crimes.”
Beautiful. Very well said. I expressed similar intuitions, but you make the point much better. (Not that our arguments are in perfect agreement, but we’re both appealing to implications of nullification for the rule of law.)
No kidding.
If I were you, I would first concentrate on getting the other jurors to reason correctly about the facts of the case, which is, ahem, enough of a problem.
(Though apparently—and outrageously—one has to be careful here: I know a mathematician who once served on a jury and was accused of juror misconduct for presenting “facts not in evidence” to his fellow jurors, namely “the mathematical theory of probability”!)
With regard to the moral issue of nullification, it seems to me to be quite clearly a quantitative issue of how egregious the law is and how draconian the punishment is likely to be. By no means do I see any general policy of the form “always nullify when you don’t like the law” or “never nullify” as reasonable.
I’ll explain the case against an “always nullify” rule, since I expect that will be more counterintuitive to most folks here.
Getting a society’s rules to be codified into written law represents great progress, in the overall scheme of things. Back in the old days, whether you got to live in peace or thrown into a dungeon and your head cut off was determined by whether the overlords liked you or not—and the rules for pleasing them weren’t written down anywhere, certainly not in any form such that you could appeal to them and say “but you didn’t follow the rules!”
Well, that’s still fundamentally the case, except that we’ve gotten slightly better about it now. There are written laws, and, at least in theory, there are courts where you can go and say “but the government’s position is incoherent!” and have that actually, you know, matter. But much of this formidable-looking edifice of a legal system is still something of a fiction. Laws are still written without the intention of their being taken literally, or even necessarily enforced at all: they’re there so that the authorities have a “legitimate” pretext in case they decide they don’t like someone and want to go after them. And there are so many laws, of such obscurity, that essentially everyone is probably violating a bunch of them, and so at the end of the day we’re at the mercy of the people in power just like we always were. It’s not quite as bad as it was in the old days, but the difference is merely quantitative. We still have further progress to make toward the ideal of explicit rules that will protect us from the arbitrary caprices of The Man.
Now what does this have to do with jury nullification? Well, consider which direction on this axis you’re pushing in by adopting a policy of disregarding the written law and making policy ad-hoc while in a role not legally authorized to be a policy-making role. You may think you’re helping to correct an imperfect set of rules—and perhaps you are—but you’re also at the same time helping to enshrine the notion that the text of the written law doesn’t really matter. If people thought the law actually mattered, they’d be much more careful about which laws they passed. However, as long as the notion persists that laws need not be taken literally, legislatures will continue to pass symbolic laws that will be enforced unsystematically, making everyone—particularly society’s envelope-pushers—continually vulnerable to the whims of prosecutors and the like.
Really? Not a witness, defendant, lawyer, but a juror used their knowledge of probability and that counted as bringing in “facts not in evidence”??? What’s the point of having a jury if the jury members can’t, you know, actually make any use of their knowledge? What’s next, “basic reasoning skills are not part of the actual evidence, so you’re not allowed to think when deciding”? Excuse me, I have to go foam at the mouth now. :p
Anyways, as far as the rest, that essentially is part of my concern. (Though you detailed it much more completely than my own thoughts did, but fuzzy thinking along those lines was part of my concern)
Hence my quandary: If presented with a drug use case, should I nullify if defendant is “guilty”?
It seems to me that it might be possible to extract some of these intuitions without all of them.
For example, say that the “rules as written down” are something along the lines of “we get a group of your peers to determine whether you’ve done something wrong, and if you have what it is. Then we decide based on precedent what your sentence is.”
In that case, members of the jury are capable of deciding that defendants have not done anything wrong, even if there is a specific punishment listed for what the defendant did.
I don’t mean to argue that this is what is the case, for example I don’t believe that the rules I described are a good representation of US criminal law. But that is a fact about the specific system you are involved in; I don’t believe that it is a priori problematic to have “jury nullification” in the sense of jurors acquitting persons who committed “crimes.”
Beautiful. Very well said. I expressed similar intuitions, but you make the point much better. (Not that our arguments are in perfect agreement, but we’re both appealing to implications of nullification for the rule of law.)