Is jury nullification the ultimate trump card? From what little I know about it, it seems that if enough people in a community knew about it, they could 100% control what crimes are punished in that community. On face value, that makes a sort of sense intuitively, but obviously it has to be balanced against crimes that are in principle clearly wrong, despite what a local community believes.
Cops, prosecutors, DAs, judges, mayors and governors all have varying authority to "control what crimes are punished", in addition to who gets punished and the severity of that punishment. In that context, it doesn't seem so strange for juries to have some authority too. All this latitude among different actors in the justice system just shows how having an incredibly vast number of "crimes" on the books guarantees loopholes and widespread abuse.
This means "with penalties for unlicenced dealing, unlicenced production and unlicenced trafficking of up to 14 years in prison, an unlimited fine, or both. The maximum penalty for possession of cannabis is five years in prison and an unlimited fine."
The police absolutely try to enforce this: "In the survey-year ending March 2014, possession of cannabis offences accounted for 67% of all police recorded drug offences in the UK."
Despite this, "In 2017, 7.2% of 16 to 59-year-olds reported using cannabis in the last year, making it the most commonly used illegal drug in the United Kingdom."
If this law, all by itself, was perfectly enforced, the UK would bankrupt itself just on the extra spending in the prison system.
> If this law, all by itself, was perfectly enforced, the UK would bankrupt itself just on the extra spending in the prison system.
That conclusion ignores the interdependence of those effects. If people knew that it's going to be perfectly enforced, then almost nobody would do it anymore.
(Not that I'm a proponent of this particular law; just pointing out a flaw in your argument. Somebody wrong on the internet -- gotta reply!)
I think it shouldn't be a law partly for that reason, but it's definitely an example of needing to go further than just repealing the laws nobody can be bothered to enforce.
Maybe I'm just being contrarian to your comment, but I've always thought the US and other countries are silly for not automating basic traffic enforcement.
Red light cameras should effectively catch 95%+ of people who blow through them. Speeding cameras (that are actually on, looking at you NYC) that are super visible are a known deterrent to speeding in Europe. Even parking - in some modern garages they have sensors to tell you when spots are full/empty. Why can't they use similar tech for parking tickets, street cleaning, etc?
I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions. Then, introducing human elements where the cop gets to decide who to ticket adds a bunch of bias that we haven't been able to correct. It's one of the countless examples of humans over-complicating things to the point of dysfunction.
A lot of places in the US have tried out automated speed traps and red light cameras. Some still use them AFAIK.
But what's common is that infractions are so widespread that there's a massive backlash and the programs get cancelled. There was an automatic speed trap on the interstate just south of Pittsburgh a few months ago, set up along side some temporary construction with reduced speed limits. A few weeks later there was a headline that it had generated so many tens of thousands of tickets that they were considering it an error and throwing out the tickets.
Not to mention they also cause accidents. People who see a red-light camera flash often hit the brakes, causing people behind them to rear-end them. There were a number of red-light cameras removed in the U.S. once it became clear they were snarling traffic on a weekly basis because of that.
The people do not support lawmakers who pass laws they do not want. Making traffic enforcement automatic would only be supported by the most strict law-abiding drivers, which is probably a minority. Your elected officials will not create laws that would cause you to vote them out of office. So, we don't have those laws, because we don't want them.
> I feel like I wouldn't be upset about rule enforcement if I knew everyone was more or less following them. What makes me ignore rules is when I see people taking advantage of them over and over without repercussions.
Yep, this is absolutely what happens. Very hard to get people to self-sacrifice and cooperate if there isn't enough momentum.
One of my favorite things to do on 55mph PA highways near Philly is to go the speed limit. All other drivers on that road are going 75-85mph. They treat you like a terrible person for going the speed limit. But eventually one person slows down behind you, then another, and after about 45 minutes, there's a line of cars going the speed limit, while people zooming by wonder if they should slow down.
As someone who used to drive heavy equipment that topped out around 60mph on flat ground I agree with the other drivers. You are a terrible person. If you used your rear view mirrors you would see that there's a constant cluster fuck of people cutting each other off trying to get out from behind you. This creates a bunch of unnecessary danger. And for what? So you can get some cheap virtue points from internet authoritarians with a justice boner? To say it boggles the mind that you think your behavior is defensible let along brag worthy is an understatement. I hope you cross paths with someone predisposed to violent road rage so that two dangerous people may be removed from the road without any innocent people being harmed.
Drive the same speed as the other traffic or take the bus. It's safer for everyone that way.
For basic traffic enforcement, you're right. However, poor implementation in the US has led to withdrawal of systems in some cities. I'll have to dig up details, but I recall a red-light system that was implemented as a revenue-share with the company contracted to build/maintain the system. That company set the timing of the camera such that it had many false-positives (it was basically triggering on yellow instead of red, IIRC). System was eventually shut down, but people are now rightfully wary of similar systems.
But, my comment wasn't meant to imply traffic is the only place this happens, it was just an easy example. We see the same with (building) code enforcement at all levels from HOA to city/town/county. We see excess policing/enforcement (to the point of infringing on individual rights) in certain neighborhoods and with certain ethnic groups (stop and frisk in NYC, for example).
We absolutely could do that. I don't know how US driving license work, but in the UK a speeding ticket gets you 3 penalty points on your license, where 12 points in 3 years gets you disqualified from driving: https://www.gov.uk/speeding-penalties
On this basis, the only people who would be allowed to drive a month after perfect enforcement starts, would be people who don't drive (plus the Queen because monarchy).
(Outside the hypothetical, the imperfection of the UK's speed cameras is such that the only ticket I've received was for an event that happened six months after I sold the car).
I've always though the points per unit time measurement system is dumb. Maybe points per 10k miles or something instead. Bill who gets into a wreck and drives like a bat out of hell the 3 times of the year he manages to break out of his schizophrenia disorder enough to drive could get only 9 points, or 3 points on every occasion he drives. Whereas the responsible driver who drives non-stop racking up 100,000 miles in a year and accidently driving through just 4 bad speed-trap towns by accident could end up with 12 points despite being far safer.
IMO the points system is as much about punishing people who depend on driving a lot as much as it is about punishing unsafe drivers.
Generally, our licenses use similar points systems, but the actual implementation varies at the state level. 1-2 big speeding tickets (reckless driving, which can also be criminal) could be enough for a temporary suspension, but usually you'd need several in a row.
Red light cameras are added along with shortening the yellow lights. More ticket revenue harvested, and more rear-ending from stopping more quickly when the light turned yellow.
It's the same reason we veered away from using the metric system at the gas pump: changing things went along with outright gouging. Too many venal actors in the American system.
I think one of our greatest failures as a species is that we have yet to architect a society in which these sorts of double standards of personal belief have sufficient consequences to prevent people from engaging in them with the fervor and frequency that they do.
The organization of society is not outside our control. We've been architecting society for 1000s of years based on what has worked and what hasn't in years past. We aren't just along for the ride although that is a convenient excuse to do nothing and make no effort.
I wasn't necessarily suggesting to "do nothing and make no effort" - That's a strawman and false dichotomy. Sure, we can generally try to do more of what works and less of what doesn't. But usually the type of people who want to "architect society" end up being the worst type of "rules for thee but not for me" tyrants.
Tip-of-the-hat to our founders, for sure! But I'd say they were architecting a government, not a society. That's a very important distinction, and without it you can end up with some really destructive Statist/Authoritarian stuff.
Regarding those first 25 years or so: Jefferson's attempt to ban slavery in 1784 failed by 1 vote. Then there was the Whiskey Rebellion in 1791 and then the Alien and Sedition Acts of 1798. So, nothing's perfect I guess...
In fact, juries are the only "citizens" (ie "them") in the authorities you note.
Note that a jury of your peers is rarely available. Instead, it's whoever didn't get out of jury service as weeded by competitive interests of the DA and defense. That might make a difference too.
I used to think of this as an utter failure of the system, but lingering on this for a while: if the vast majority of citizens (= people who can meaningfully participate in the society) thinks lynching is a good thing, the jury nullification is only a step behind making lynching OK in the books for that group.
Of course there could be upper laws blocking them from making it an official stance, but it really feels like fighting a reality with theorical boundaries.
The issue is not the abuse of a system hack, and probably more around changing people's mind (which can take centuries and get reversed in a few years...)
One must also remember that what people privately are willing to vote for (which in practice, probably means voting for a fringe alternative pro-lynching party, because nationwide parties have to appeal to anti-lynching constituencies too) is not the same thing as what they're willing to do when sat with 11 other local people being reminded that the whole town will learn which way they voted and some of the townsfolk are really, really aggressively pro-lynching...
The issue is that the American people are so far gone, and even more so back in the day, that allowing to process to work results in the persecution of people. This has been proven time and time again.
The process as we imagine it simply can't work under these conditions. The people are too deranged, and like misbehaving children, need to be contained.
> if "the vast majority of citizens thinks something is a good thing", shouldn't it be legal in the first place? Because democracy
Sort of. It’s tyranny of the majority [1].
The meaning of democracy has changed over millennia. Classically, democracy encompasses “freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights” [2]. Each of these involves constraining majoritarianism. Unfortunately, in modern use, this balance has been lost, with the term democracy becoming more and more interchangeable with direct democracy, a system that predictably fails.
So classically, no, jury nullification of lynching is a failure of several fundamental democratic principles. But in a modern sense, yes, it’s the will of the majority of a certain set of people.
Traditionally, democracy meant 'all Athenian male unenslaved citizens meet up every now and then to decide by majority whom to banish from the city' -> the exact reason why democracy was a dirty word for classical political philosophers, like Plato: tyranny of the masses was built in from the start.
What you describe was an "age of enlightenment"-style idealised version of democracy that lived for a short time before it was being killed again, bit by bit.
And that direct democracy thing ... it works for the Swiss, and many would argue the problem today is not too much democracy, but too little, and it becoming ever-smaller.
Democracy was discussed deeply and implanted varyingly after Athens fell. And even then, concepts of free and equal speech were tied to the concept.
> that direct democracy thing ... it works for the Swiss
We don’t have direct democracy. Our initiative and amendment processes have a referendum component, but it’s tightly moderated by the legislature and requires supermajorities to override it. And to the degree it's being discussed, it's with respect to reforming it so political parties can't bypass the parliament.
I tried not to become too technical, given the original claim was that direct democracy does not ever work. You are, of course, right: You have a representative parliamentary system with strong direct democratic elements, which currently is in danger of being destroyed by more conservative elements in your parliamentary system. Given that traditionally Switzerland used these mandates wisely, I hope the fascistoid elements in your government will not be able to go through with that plan.
The problem is direct democracy is everyone needs to show up at the same time. It is impossible to do this for any modern community of more than 100 people and even going that large is only possible if you limit who has a vote to [white adult males] or some such subgroup that allows someone else (women and children in this example) to take care of everything else that can't be ignored while in the meeting. Once you get larger than that someone has a conflict and they won't be able to show up, and now they have no input.
Direct democracy does not necessitate a 100% participation rate.
It traditionally only means "the electorate decides on topics directly, not with representatives who are not bound in their decisions to their mandate". Again, see Switzerland, which works just fine with direct democratic elections with groups ranging from a few hundred voters on a market square to millions of electors in the country as a whole.
If you have less than 100% participation though there is risk that the needs of those who cannot participate (here referring those who would like to, as oppose to those who wouldn't even) are overridden by those who do.
Jury nullification isn't just an evil jury frustrating the heroic pursuit of truth and justice for the land.
It's also a jury looking at a fellow citizen getting hung out to dry by a crooked/ambitious DA and law enforcement entity, or shifty looking DEA agent and saying "Enough is enough. This is overreach, dirty, and wrong, and every last one of you knows it."
Nothing is a given about how our system works. Justice and politics are constantly evolving things. Each process serving as inputs to the others.
We try to create a world of predictable consequences. We try to minimize the number of places surprising things can pop up from. However, deep down, we bear forward the history of abuses by systems past, which is why we maintain these safety valves, even if they are infrequently used, lest our vigilance wane that they need to be used again.
It's why jury duty is the most important damn responsibility in the country.
FWIW, I don’t think the meaning has been lost; I think the squeaky wheel people on social media have forgotten the meaning when they fail about “the US isn’t a democracy because we have a Senate/electoral process/etc” but I think that’s a pretty narrow slice of people and I think it’s more ignorance than a changed meaning. In my experience, most people seem to agree that representative democracies are also democracies (indeed, even the ignorant people would usually admit that most European countries are democracies despite having a similar bicameral system to the US).
There are practical and logistical problems of course, but there is no evidence of it actually failing. An educated population can decide to defer decisions and a majority probably would. At least the societies ready for it.
I think parliamentary democracy becomes more interchangeable with technocracies with certain groups carefully gate keeping for their in-group. This would fail at least as predictably.
Even if they can vote equally, there's no guarantee that minority populations will have the numbers to protect themselves from the tyranny of the majority.
We haven't even gotten to the "equal access to voting" part here in the States yet, so we have a long long road before we get to the "voting is a good tool for minorities to protect themselves" phase.
That’s the argument advocates of direct democracy generally support, but no actual democratic systems fully implement direct democracy. In practice what we generally have is representative democracy, where we delegate the power to make laws, and make and implement policy to representatives.
Those representatives have personal moral responsibility for the laws and decisions they make and are sovereign individuals in their own right, as is any citizen. There’s an argument (I think a strong one) that having been elected they have a right to make laws or rule according to their own beliefs and conscience, within the limits of the law. They’re not just the compliant meat puppets of “the people”.
Of course there are examples of direct democracy, in the form of referendums on specific issues, and these highlight many of the problems with direct democracy. You end up with votes raising spending, alongside votes cutting taxes, with a side order of votes banning government borrowing. You get situations like Switzerland voting to align with the EU along with its free movement provisions, then a referendum mandating ending free movement (but not any other aspects of the treaty), then a referendum confirming maintaining the EU treaty. Take Brexit, what does it mean? Hard Brexit, soft Brexit, there are infinite different possible variations. Which one did the British public intend? Well, different members of the public intended different things, who gets to choose? What happens when the public vote for one thing but most elected people in government responsible for implementing it think it’s a bad idea?
The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
> That’s the argument advocates of direct democracy generally support, but no actual democratic systems fully implement direct democracy.
To be fair, Switzerland comes very close. The public can pass initiatives or constitutional amendments without government intervention through public votes, and the few Swiss people I know consider this to be the primary political system in Switzerland (not the representative electoral system they have, though they also have a very interesting mechanism for their President which requires cross-party agreement for any government decision).
Saying "no system fully implements direct democracy" feels like a no-true-scotsman stance, since by the same token no system fully implements representative democracy either (AFAIK no country guarantees that there is a precise percentage match of party representation to the popular vote with no lower bound on how many votes a party needs to enter, as it would be unworkable to have such a system).
> The problem is “the people” don’t have a single coherent group consciousness capable of reconciling competing priorities. That’s what leaders are for.
The flip side is that in representative democracies (especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world) you are very limited in your choices of leader and thus sentiments which are popular with the public can be completely ignored. There is no mechanism to force a public initiative that has legal weight, so you have to hope that a major party will be in favour of your pet issue and they can convince other bureaucrats to support something that is popular.
I would not say that I'm a proponent of direct democracy but I don't think having some public initiative system would be a bad thing. But if we are going to keep representative democracies with the argument that the leaders represent the people but have some expertise (though cynical people would argue that is not the case anyway) then you cannot have broken electoral systems because their political power is no longer morally justified. But of course, no party that gets in power would likely ever change the entire electoral system since they have a strong political incentive to not do so (and with representative democracies, election promises aren't worth the paper they're written on).
The classic representative democracy suffers from a problem that it promotes a-holes to power. Because they have no scrupules to lie and cheat they have to get and hold power. And this explain the fact that the percentage of a-holes in political elites is way bigger then in rest of populations. (btw this specific problem could be easily solved by replacing elections by some form of lottery)
What is relatively unknown about Swiss democracy is that on the referendums on national level are extremely rare, but a possibility of a referendum looms like a Damocles sword over political elites and prevent them from abusing their legislative power.
> The flip side is that in representative democracies (especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world) you are very limited in your choices of leader and thus sentiments which are popular with the public can be completely ignored. There is no mechanism to force a public initiative that has legal weight, so you have to hope that a major party will be in favour of your pet issue and they can convince other bureaucrats to support something that is popular.
Please don't lump the extremely broken US political system with the slightly less broken British and former colonies (Canada, Australia, NZ, etc.) and even less so with the rest of democratic countries around the world which is usually using representative systems. Furthermore, some countries have explicit constitutional schemes where a petition with enough signatures needs to be voted on in parliament or even called in as a referendum.
> Please don't lump the extremely broken US political system with the slightly less broken British and former colonies (Canada, Australia, NZ, etc.) and even less so with the rest of democratic countries around the world which is usually using representative systems.
I live in Australia. Any system which uses winner-takes-all-electorates is structurally unrepresentative. The party list systems in Germany and New Zealand get closer but have other flaws (enshrining of party politics, no preferential voting) and so on. Even a hypothetical Condorcet system with only one house and no local electorates then has the flipped issue that there is no local accountability. A multi-seat preferential electoral system (which is what I'd advocate for) has a threshold issue where you have to decide at which point a particular percentage of the vote is too low to no longer deserve representation. Any system requires tradeoffs and as we all know from the Arrow Theorem (and the Alabama Paradox) there isn't even such a thing as a perfect voting system, so why would we expect to have a perfect electoral system?
My point was not that these are not acceptable systems (though some are better than others), just that if we're going to start talking about how no-true-scotsman perfect systems, it's not reasonable to ignore that the status quo also has a very similar (and in many cases wider) departure from the theoretical state it should be.
And as a non-American, I really dislike this tendency many non-American people have to say "at least it's not as bad in the States!" -- this just breeds complacency as everyone cares more about what's happening to the political system in a foreign country rather than their own. We should all be working to improve things wherever we are, instead of just pointing and laughing at the US.
Also it's not fair to lump New Zealand with Australia, nor Australia with Canada. They all have completely different electoral systems -- so much so that there's literally no reason to group them in any serious discussion.
>especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world.
There are many flavours of representative democracy. It depend what is being represented. In the British system that’s constituencies. In proportional systems, that’s political parties. Neither are particularly more or less inherently legitimate IMHO.
Ultimately whether a democracy and its system is legitimate rests on a consensus of the consent of the people to that system. I think would clearly ludicrous to argue that the British people do not consent to their system of government.
> There are many flavours of representative democracy. It depend what is being represented. In the British system that’s constituencies. In proportional systems, that’s political parties. Neither are particularly more or less inherently legitimate IMHO.
I would consider 10% of a country voting for a party as first preference but less than 0.7% of parliament seats (by which I mean a single seat) being allocated to them (as was the case in Australia until the last election where it's still around 2% representation) to be unrepresentative by any reasonable definition of the word. Whether you feel that the voting system in your country needs to be purely representative in order to be legitimate is a philosophical question and whether you feel that an unrepresentative system is legitimate is a separate discussion.
Whether you think parties should be entrenched or not (I'm not particularly fond of the idea), it is literally not representing the public votes. This is because Australia has winner-takes-all electorates and. You can have electorate systems that don't have one-seat electorates. Winner-takes-all electorates lead to this problem.
> I think would clearly ludicrous to argue that the British people do not consent to their system of government.
I would think it to be naive to argue that every election is a referendum on the fundamental system of government in the country where no party is running on such a platform and there are many factors making it essentially untenable to even attempt to have a third party push the issue.
I suspect few British people would say their government is illegitimate but I also suspect very few would say "I have a continuing and active choice in the fundamental way political power is structured in my country, above voting for individual political parties."
That’s only unrepresentative if you privilege parties over constituencies. There’s an argument for that but it’s not a given. I detest party lists though, it’s a terrible idea to suborn elected representatives to a party bureaucracy. Elected representatives should be ultimately answerable to the electorate.
I don’t think it’s fair to phrase it that way, I’m terms of choice. Democracy doesn’t give individuals a choice in how they are governed, it grants them a vote. That’s not the same thing. Also I don’t think it’s reasonable to have the structure of political power up fir continuous change. There should be mechanisms fir change, sure, but in most cases that should be over fairly long time frames with plenty of brakes in the process.
The reason is that changing power structures is extremely dangerous. Once you fall into a peer structure that’s vulnerable to abuse by a clique or even worse an individual, you can easily get trapped in it permanently. In a constantly changing system up for frequent revision it seems like that would eventually be inevitable.
> That’s only unrepresentative if you privilege parties over constituencies. There’s an argument for that but it’s not a given.
How would multi-seat electorates privilege parties over constituencies? It would literally mean more representation of different views in on electorate.
> I would consider 10% of a country voting for a party as first preference but less than 0.7% of parliament seats (by which I mean a single seat) being allocated to them (as was the case in Australia until the last election where it's still around 2% representation) to be unrepresentative by any reasonable definition of the word.
It is a consistent outcome, the recent election is an anomaly. The explanation for why this is the case is a bit complicated but the crux is that only one candidate can win in each seat and while we have preferential voting, the preferences only matter in each race -- and if you aren't in the top two on first preferences then you won't win that seat (nor any other seat where that is the case). It would be easily possible for them to have 0% representation, it just so happens that the Greens party leader's electorate is incredibly pro-Green and so he gets ~47% of the first preference vote, which is unusually high and makes him win the seat easily.
Our upper house is far more representative because each state and territory has multiple seats and thus you can get a more representative outcome.
> Saying "no system fully implements direct democracy" feels like a no-true-scotsman stance, since by the same token no system fully implements representative democracy either
Of course some systems implement forms of direct democracies, although they are not represented in the UN because they are not taking part in the "game of thrones" of international politics. But saying that no Nation State implements direct democracy is right on point, because "democracy" is the very opposite (by definition, i.e. "power to the people") to the State ("power over the people").
In contrast, most States on Earth (even Kingdoms!) implement forms of representation/election. Now, can we even call that a democracy? Electoral systems as we know them today were designed in the 18th century by french and american politicians/philosophers who were strongly opposed to (and afraid of) democracy so that's a bit of a stretch.
I mean take a very simple issue: ask everyone "should some people be sleeping on the streets when there's millions of empty dwellings?" and they'll all say "no". Now see what the government is doing with this popular will, and you'll understand government don't care about the people and wipe their asses with our needs. Call me "cynical" if you will but i'm certain the people who uphold Nation State have no expertise, and certainly have material interests opposed to ours.
Ah okay, you're having a philosophical argument about the concept of a direct democracy and how it technically should be a form of anarchy or possibly anarcho-syndicalism.
While I think that is also a very interesting topic and I'm sure we would agree on many things, I'm not sure it helps to get into the philosophical argument while talking about real-life political systems and the different flavours of representative democracies.
I don't think i am, sorry if it sounds like bikeshedding. I'm interested in the practical question of who holds political power, and who holds the "legitimate violence" to enforce this political power.
If me and my neighbors can't "legally" define our own sets of rules and regulations (which we can't in France), i just can't call that a democracy. Time and time again i've witnessed local communes get crushed by national/industrial interests... that's a very practical concern, not philosophical, whether you can keep your home and your life or they're going to destroy your entire village like they did around the Hambach charcoal mine (or like they tried in NDDL, or are still trying in Bure).
I do believe mechanisms for secession can make sense. I hope Scotland stays in the Union but I also believe they should have the right to choose not to. However then you get into the question of what constitutes a region that could reasonably secede. That must imply a historic and inalienable right to the territory, to be able to make that decision. It’s a difficult one.
If you and your neighbours want to not be subject to the French government, you can always go somewhere else. The fact there’s probably nowhere better for you to go is hardly France’s problem.
Sorry, I wasn't trying to say it's not an important discussion, just simply that if we start by saying that no country which is not anarchist cannot be called a democracy feels like a semantic gotcha if we're talking about electoral systems in countries that are commonly called democratic.
> (AFAIK no country guarantees that there is a precise percentage match of party representation to the popular vote with no lower bound on how many votes a party needs to enter, as it would be unworkable to have such a system
Representative democracy doesn’t require a “precise percentage match of party representation …”, but direct democracy is explicitly defined as a system in which there are no representatives.
> especially with broken voting systems that are not even remotely representative such as in the US, UK, and most of the world
This is hyperbole. The US system is pretty representative, and the extent to which it isn’t has very little to do with the voting system and much more to do with incentives (elected officials are beholden to their corporate backers rather than their constituents) and to a lesser extent, our two party system.
We very much don’t. Public proposals have to go through multiple rounds of deliberation, cooling down, revision and supermajority popular approval before becoming law.
I am repeating what I have heard from other Swiss people, so while you may not feel that the electoral system is as good as it should be (which is a completely justified opinion in any country and I am sure that Swiss people are not a monolith on this topic), it would be disingenuous to say that Switzerland is not even remotely close to a direct democracy. I am not aware of any other country that has a formal mechanism for laws to be changed where the government or parliament is not directly controlling the process.
> it would be disingenuous to say that Switzerland is not even remotely close to a direct democracy
I am saying it is as good as it is because it is not direct. The majority can propose an initiative, but the legislature gets to deliberate and draft a counter-proposal, with all of this taking time and encouraging sponsors to withdraw their initiative. In essence, it’s a way to prompt the legislature in a certain direction. Not for the majority to write the law. For an example of how that breaks, see California’s referendum process.
And also, from my understanding a local Commune doesn't have the power to overrule national laws locally. Which means that when a short majority of racists sets up bans related to muslim cults as happened a few years ago, a local municipality can't overrule that and say all faiths and buildings and clothings are welcome.
It would depend on what happens next...do the people against lynching get their own place where they decide their own rules democratically ? Or the other way, do pro-lynching people go build a new Lynching Empire somewhere else and leave their land and resources behind ?
I'd be a supporter of freedom to decide any rule within a group if there was infinite resources and we'd just move freely to the places we want to be with the groups we want to belong to. Short of that, the majority agreeing on something is probably not enough to warrant changes, but then of course we have to deal with the imbalance...
It can also go the other way, with a jury convicting someone even though they don't believe the person is guilty.
Some say this would not be a problem because unlike in an acquittal the judge can overturn a guilt verdict. That's not a convincing argument because much of what a jury does is decide which of believable but conflicting witness accounts to believe. The judge often has no way to distinguish between the jurors found the prosecution witnesses more believable (and so the judge should let the conviction stand) and the jurors found the defense witnesses more believable but decided to convict anyway because they didn't like something about the defendant such as their race, or bad things they did not relevant to the crime they are being tried for (and so the judge should acquit the defendant).
Aside: England and Wales abolished DP in 2005 for serious crimes: (“two conditions: the retrial must be approved by the Director of Public Prosecutions, and the Court of Appeal must agree to quash the original acquittal due to "new and compelling evidence"). Prior to that, innocent verdicts could be appealed for jury / witness tampering, etc.
Not if they are instructed or for other reasons believe that their job is to make a strictly legal finding. I.e. to decide only the question "did $DEFENDANT violate $LAW". As opposed to the broader questions: whether $LAW is good; whether it is being applied fairly, and so on. It's not uncommon for people to disagree with an outcome but decide it's acceptable because of the way it was reached: "This sucks but it's the rules/my duty". Jury nullification makes considering the rightness of the outcome part of the rules.
sure I guess there would be people who would think like that, but not sure what percentage, if it were me and I were instructed to make a strict legal finding and I thought the law was wrong I would say not guilty when it came time to vote and would not be swayed.
But maybe I'm an outlier like that. I guess also its rather conceited of me, but that's the way it is.
If the definition of "self-proclaimed" includes agreeing with popular proclamation, who is ever proclaimed but not self-proclaimed? You've rendered the "self-" prefix redundant, in which case why include it?
Winning an election is not a proclamation or any other kind of indication that somebody is an expert in law, governing, or anything else except winning elections. I can't work out how you've made that leap.
Although this is about the jury, this is actually something that turns me away from progressive parties: the only reason you're fighting for something is because Congress failed to acknowledge it for 250 years consecutively and we're supposed to pretend that this time its different.
The similarity here being that Congress sat on its hands regarding lynching for over a hundred years, followed by another 100 years of the Senate blocking everything the House brought up till just this year, long after everyone independently decided "hey, let's not lynch people". Its not supposed to be a defeatist approach, its just "hey lets focus on something that has consensus because trying this again is just a waste of energy". I'm interested in some aspects of fiscal and foreign policy, for example. That priority might not come from the same party.
If you think jury nullification is a potential problem just wait until you hear that district attorneys have almost absolute authority to decide what crimes are punished. One person can unilaterally dictate that petty theft is no longer a crime, for example.
In that lens I don’t believe jury nullification is much of a problem.
The proper remedy for bad governance is to elect different public officials to represent you. Jury nullification is far too weak, even as tinfoil hats go. Sure it's a thing and it's not illegal. It's just silly and unstable, and it should never be depended upon by society to replace good legislation and executive power.
Besides the fact that this ruling was about free speech rights, not jury nullification. You can say all you want outside a courthouse as long as you're not disrupting the legal system or trying to sway a particular jury in a specific case.
"The proper remedy for bad governance is to elect different public officials to represent you."
After 4 years you can attempt to fix it. Though if the person who you elect actually tries to fix it there's a good chance they will be stopped by the courts from doing so.....
E.G. Let's say bad politician hires bad people who implement bad policies. New politician comes in and tries to fire bad people, they sue saying its political persecution and they haven't done anything wrong and haven't violated the standards of their job or their contract. Court upholds it. They continue implementing bad policies, to the point of snubbing their nose at the person who got elected. What is the remedy here?
That's a drastic oversimplification. For one counterexample, consider a prosecutor who believes x but also y. The community agrees on x but not y and consider that a dealbreaker, so the prosecutor is not elected. And this doesn't include issues such as ease of voting and gerrymandering.
Let's not turn it into a whole Boudin debate. He was recalled, which indicates some level of voter discontent with how he operated. I personally voted against recall, but it is what it is.
DAs and police are directly or indirectly answerable to the public. Court proceedings are generally public record. Elected local governments have authority over law enforcement. See the recent case (without judging it's merits) of Gov DeSantis suspending a DA who refused to enforce abortion bans.
There was a time in England that theft was punishable by the death penalty. When I was younger, I learned that changed because of behavior of criminals under incentives: when stealing the bread is punishable by death, you may as well kill the baker too, to cover your tracks and maximize survival odds.
That might be true, but the more specific issue England (specifically, London) ran into is that trials for theft were trials by jury, and the jury (staring into the eyes of the accused and recognizing a boy of only sixteen in the box) increasingly found thieves innocent rather than having to have the death of a child on their conscience. Facing a situation where theft was functionally un-punishable by law because no jury would convict on a crime like that with a death penalty attached, the merchant class petitioned to have the punishment stricken from that category of crime.
This is, incidentally, why "right to a jury of one's peers" and "right to face one's accuser" are baked into the US Constitution... A lot of actual justice happens at the intersection of the law and the humans who must execute it.
The jury is an old form of democracy. The king/government can make what laws they like, but it needs to have enough popular support that a jury will freely choose to convict according to it.
Of course, like all forms of democracy, the outcomes don't always agree with your or my sense of justice.
> it has to be balanced against crimes that are in principle clearly wrong
In this system, whoever gets to decide what is "clearly wrong" has the real power.
> From what little I know about it, it seems that if enough people in a community knew about it, they could 100% control what crimes are punished in that community.
Only in one direction, I think. Jury nullification still can't render a guilty verdict, when the law says the defendant ain't guilty. (At least in principle.)
If a community really wants to severely punish something that's legally not a crime, jury nullification enables the community representatives to enact whatever extrajudicial punishment they want (e.g. the existing examples of lynching or "honor killings"/"honor rapes" in certain communities) and then protect these punishers from the legal system.
It's a limited trump card, in that a jury can nullify law but not make it, or even adjust the charge. And their decision holds no legal precident beyond the immediate case.
I think of an informed jury as the tire between the wheel and the road, to fill the gap between the abstract judgement of the legislature and the concrete particulars. Tires do fail, sometimes fatally, but they save a lot of wear on the whole system.
The one case I was a juror on, there were questions about specific details of the charge vs the standard for a conviction on that charge. We couldn't get clarification because the judge decided to go home at 4:30, 40 minutes into deliberations.
No one wanted to come back to deliberate another day, so we convicted on the counts we were sure of and acquitted on the remainder. The aggravated details made no sense as the verdicts were read as they ended up being grossly inconsistent. In the end, the defendant was sentenced to 6 years. It could have been 60 years if the judge had hung around though.
In the Anglo-American tradition, juries cannot nullify, make, or frankly do anything else with law. What they can do is decide the facts. Jury nullification is the jury legally denying the facts, no matter how observably true they are. Because legally speaking the jury determines the facts, that’s that. A judge can overrule a guilty verdict, but not an innocent one.
During 2019 protests in Hong Kong, the idea of jury nullification was known to many people, in hopes of setting the protesters free. The government used loopholes so most protest related cases were trialed without jury.
>In all, there were 46 potential witnesses to the shooting, including Trena McElroy, who was in the truck with her husband when he was shot. No one called for an ambulance. Only Trena claimed to identify a gunman; every other witness either was unable to name an assailant or claimed not to have seen who fired the fatal shots. The DA declined to press charges. An extensive federal investigation did not lead to any charges. Missouri-based journalist Steve Booher described the attitude of some townspeople as "He needed killing."
Would you please stop posting unsubstantive and/or flamebait comments to HN? You've been doing it repeatedly, unfortunately, and I don't want to have to ban you again.
Of course. I think the real measure of who that 0.25% is though, are the ones where if someone McElroyed you, an entire town of 40 people would stay silent about it.
In the south it used to be an entire town of hundreds would show up for a lynching and take pictures and a picnic below the tree.
Emmett Till’s river site memorial plaque had to be replaced by a bulletproof 500lbs one to slow down its vandalism. In 2019. Before that it had to be replaced 3 times, once because it was removed and tosse in the river, and the other 2 times due to damage from being shot at. It had been first erected in 2008.
Jury nullification is very much a two-edged blade, it’s been used against the Fugitive Slaves Act (this sort of acts was a big reason why the south decided to secede) and it’s been used, a lot, to protect racist murderers.
It's really worth noting how much the nature of law in the US changed after the Civil War. So much so that you can think of post-1868 US as a fundamentally different country, legally, than pre-1868. The big change is that the Civil War demonstrated the shortcomings of state-level interpretation of law, and with the 14th Amendment, a wide swath of such interpretation was barred.
And, indeed, plenty of people think the old way was better. Why they think the old way was better is always worth observing with a critical eye.
Just looking at the 20+ number and without further context, we can't say whether he was falsely accused escaped the convictions because the justice system worked for once, or whether he was correctly accused, and escaped the convictions because the justice system had false negatives.
(Looking at the rest of the Wikipedia entry, I am very sympathetic to the latter point of view.)
Doesn't the jury verdict need to be unanimous? If they can't come to agreement, they redo the trial I thought. So one jury member can force a retrial, but can't force a not guilty verdict.
> crimes that are in principle clearly wrong, despite what a local community believes.
Who has the magical power to know which crimes these are that are "in principle clearly wrong" with such certainty that they can override the community's beliefs? We're all fallible humans and nobody has a special private line to The Truth.
I like to think that saying lynching black folks is "in principle clearly wrong" is one example where I am okay with thinking that I am certain enough to override a "community's beliefs" about what is right or wrong.
The problem is that the people who thought lynching was fine had the same sense of certainty that you have. Which all by itself is enough to refute the claim that such a sense of certainty is sufficient.
Yes, they did. But we've improved as a species. We may not recognize what our descendents will consider barbaric in our behavior, but we can be the ratchet that prevents us from repeating the barbarism of our forbears.
Disagree, cultural norms are not just formless things that can come and go entirely without context. We can never have a discussion about the morality of slavery without the historical context.
You aren't disagreeing with me, you're agreeing with me. You're saying that ethical and moral claims are context dependent, not absolute. Such claims include claims that, for example, abolishing slavery or lynching is an "improvement". Which is exactly my point.
I don't think it's safe to assume something obviously bad today won't be good by many/most measures tomorrow. In fact I'm quite certain that the advancement of society doesn't rely exclusively on constraints, but also on expanding freedoms and loosing poorly conceived constraints.
To me, any syllogism which tells me I am not qualified to say that lynching is not immoral is probably broken.
Rational argumentation is fine but it requires that we start with some reasonable premises.
Like any math problem, if you get strange answers it indicates that you're doing the problem wrong. If you divide the circumference of a circle by its diameter and you get something like 31.4 you might wanna check your math.
In this case, if you've "refuted" the idea that racially-based lynchings are universally morally impermissible, you might really wanna look at your math.
> Rational argumentation is fine but it requires that we start with some reasonable premises.
Yes, but you aren't doing that. You aren't deriving the conclusion that lynching is wrong from some reasonable premises. You're just asserting it. Another poster downthread did offer a reasonable premise, the golden rule, from which the conclusion that lynching is wrong can be derived. But that doesn't completely solve the problem either; see further comments below.
> if you've "refuted" the idea that racially-based lynchings are universally morally impermissible
This claim is already refuted by human history.
> you might really wanna look at your math
You might really wanna consider that ethics and morality are not math. You can't establish ethical and moral claims simply by deduction. You have to get people to agree to them--or you have to impose them on people by force (and then you have to deal with the ethical and moral problem of justifying such use of force). Even if you have premises that you think are reasonable that support your ethical and moral claims, you still have to get other people to agree to the premises. That's why ethics and morality are hard.
And, for what it's worth, this principle that unexpected results indicate an error is quite useful.
I can't edit out the double negative in my first sentence which makes it incoherent (thanks to HN's time out system) but I can expect that most readers would see that and understand it is a grammatical error, and I'd expect that they'd have a some certainty about their reading of that sentence.
I think the golden rule is usually sufficient. almost nobody wants to be lynched. likewise stolen from or harmed. the world is a better place with people abiding by that
This is fine, but it's not basing claims about what is good or bad on just your personal opinion or feeling. It's basing it on a general principle that is supposed to apply equally to everybody. That is indeed the only way of escaping the merry go round of shifting personal opinions and feelings. But it is also not perfect: not all ethical and moral issues can be resolved this way, because now you have the problem of which general principles should be used. Not everybody agrees with the golden rule, just as not everybody agrees that lynching is bad.
To illustrate why even reasoning from general principles has issues, consider: are you also against punishing people who commit crimes, on the grounds that almost nobody wants to be punished?
I very much hope most of us here think that lynchings for having the wrong colour of one’s skin is wrong, while history has showed that there are communities that don’t consider them crimes.
There are good reasons why we try to minimise how much of law enforcement that are left to peoples discretion.
> There are good reasons why we try to minimise how much of law enforcement that are left to peoples discretion.
I don't know where you're getting this from. Practically all of law enforcement is left to people's discretion. The people exercising the discretion just aren't members of juries in most cases.
No, they are police, prosecutors and judges. And that is one of the problems with the US system of justice. Justice is supposed to be blind. As it works now, the white upper class kid gets a slap on the wrist after raping an unconscious woman, while the black kids go to prison for minor possession. And since the people in charge don’t have worry about the laws being applied to them, they introduce outrageous laws. The governor never has to worry about his daughter going to prison when she needs an abortion.
Not my experience at all. And remember, what's good for the prosecutor, is bad for the defense, and vice versa.
And each side gets only a handful of dismissals. You waste it on some guy you think is "too smart" and you might not be able to use it on that guy who thinks your client is guilty already.
I think pretty trivially whats good for the prosecutor is not necessarily bad for the defense. i.e. if somebody says they're going to flip a coin to make their decision is going to be bad for both of them. (unless one side thinks they have absolutely no chance).
Not a lawyer but I think you have unlimited dismissals [1] its just there's a limit to the number of ones you don't have to provide a reason for. And I'm also sure the rules vary state by state.
You’re right, when I say they get a certain number of dismissals, it’s “no questions asked”. But getting a judge to dismiss someone who you don’t feel is sympathetic to your client isn’t going to fly.
So the “no questions asked” dismissals tend to be people who may be sympathetic to either side.
If it’s a murder case the defense may want people who are pro-self defense while the prosecution may not.
Being pro or anti-self defense isn’t in itself a disqualified as long as you can follow jury instructions.
Rule 606 of the Federal Rules of Evidence prohibits a juror from testifying “about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” [0]
Without testimony, how would you make the case for perjury? You can’t force the juror to incriminate themself, nor can you ask the other jurors to incriminate them. There’s no functional way to distinguish between nullification and a deliberated no vote.
> Without testimony, how would you make the case for perjury?
You’re almost certainly going to be asked about your ability to make a decision on the basis of the law, and solely the law, during voir dire. If you say yes and then go on to nullify, you perjured yourself.
I agree that it’s (morally) perjury, but I don’t see how it could be proven in court. The prosecutor can’t compel the individual juror (5th Amendment) or the rest of the jury (Rules of Evidence) to testify. I suppose someone could voluntarily waive their 5A rights and confess but…
"nullifying" means voting "not guilty". There's no evidence to prove that the juror did not just distrust all of the evidence presented, or feel that it didn't rise to the threshold of beyond a reasonable doubt.
You'd make the case for perjury, because people who like jury nullification love to talk about it. Chances are they talked about it extensively online using poor opsec.
So long as the juror isn't a complete moron, it won't happen. To get to the point where a juror is convicted of perjury, you need one of the other jurors to turn them in to the judge. Something that can pretty much only happen at the end of the trial (since the jurors are barred from speaking to anyone about the case.)
I guess it would have to become a widespread problem, for lawyers to start asking this (and to some extent it hints to the existence of jury nullification).
You are under oath during jury selection, right? So I guess that could hypothetically get you into some trouble. Although I'm sure it is pretty much unheard of for them to go after somebody who lied during jury selection questions...
There's a much better and more ethical form of nullification if citizens refuse to enforce a law. Just say so at voir dire. It's virtually guaranteed it will be asked when a jury is being selected "If the evidence shows guilt, will you vote to convict?" If you say "yes" then nullify, you've lied under oath even if you're never caught. And your opinion is secret forever. Just say "no". If they can't get 12 people willing to convict, the law is nullified and public opinion is clear and no law has been broken or bent.
Yes, and jury nullification is the intent of 7th Amendment. The point is so that regular people decide what is and isn't a crime at the particular level.
The jury of your peers is truly the last word in the United States, and many other common law nations. This is not perfect, but it is better than the alternative.
It's a check on the prosecutor's power that has been gradually eroded by the legal system. Grand juries, similarly, have been eroded in their abilities to check prosecutor power.
In an ideal world a good judge is likely better for you than a jury if the law is on your side. Unfortunately good judges are hard to pick, and elections of judges don't seem like a solution.
In terms of the legal system itself, there is way too much room for power bias that needs reform.
In theory the law is blind, applying to everyone equally. In practice it is executed by humans who are anything but blind. Bad actors exist at every level, police, DAs, prosecutors, judges and yes, juries.
Humans, and humanity, should be in the loop, but equally its hard to find sufficient quantities of good humans to participate.
Especially in the current political climate, elections for judges seem particularly fraught. A blood-hungry mob favours those who take a "lock up everyone forever" approach.
Equally, seeing the court as a mechanism for politics, from the highest court to the lowest, while it might be good for politics is bad for justice.
There is a lot to dislike about the current system with its various prejudices - but reform is hard because quality people are hard to find. And every bad apple in the system erodes public trust - and once trust in the system has gone it is hard to regain it.
So what would be a better alternative? Not necessarily a better system, but a system populated with better candidates. In many places that means voting for moderate candidates who are focused on justice, not law. On people with character, not who screams the loudest, or has the most extreme viewpoint. On supporting those police honestly "protecting and serving" while at the same time having a police force actively rooting out corruption and prejudice.
Trust is hard earned, and easily lost. Mostly its in the "lost" bucket right now. It will take a lot to get that back.
Skimming the wikipedia page the Jury's acquittal sounds reasonable as the murder wasn't premeditated.
The guy is trivially guilty of killing somebody (enough evidence + admission) but just because somebody killed somebody doesn't mean they are guilty of any specific law (i.e. driving while intoxicated or in this case premeditated murder). You do still need to charge them for the proper law.
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IIUC, the US gets around this problem by just trying people for multiple crimes at the same time and the jury can render verdicts on each of them.
"this anonymous person stands on trial for their role in spreading hoaxes in their show about Sandy hook shootings, they have made millions selling supplements online and host their own talk show catered to right wing conspiracies. "
I have literally no idea how you'd accomplish anonymity in many, many cases.
It’s not the ultimate trump card because a judge can still issue a directed verdict or a judgment as a matter of law which is basically when the judge says “no reasonable jury could have examined the evidence and come to that conclusion”.
IIUC, unless a defendant waives their right to a jury trial, a directed verdict may only ever be "not guilty." Otherwise, it's a violation of the Constitutional right to trial by jury.
Merely knowing about jury nullification wouldn't be sufficient to act on it. Most people would face a serious moral conundrum choosing between upholding an unjust law vs lying about evidence as a juror.
A jury is the last line of defense. The state can not use it's power to punish someone unless they can find 12 members of the community who are willing to allow the punishment.
It is supposed to be the last, final defense against the perversion of the justice system into political prosecution.
The state can make whatever laws it wants, but it can't enforce them without the will of (some of) the people.
Probably worked, too, when populations were smaller and communities more cohesive.
Practically it can, because jury trial is expensive, less predictable and carries much longer sentence then plea bargain. So, 94% or so of cases end without trial.
The state says "take 3 years in plea bargain or risk 15 years and huge debt in jury trial".
