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RationalMadman's avatar
4
RationalMadman
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574
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Topic
#408

Jury Nullification is desirable morally and legally if the society in question has Juries.

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The debate is finished. The distribution of the voting points and the winner are presented below.

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6
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4
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1
2
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2

After 2 votes and with 10 points ahead, the winner is...

blamonkey
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blamonkey's avatar
14
blamonkey
1677
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Round 1
RationalMadman's avatar
RationalMadman
Pro
#1
I am going to keep my Round 1 as simple as possible and yet it will be in-depth regardless. I am going to be fundamentally ranting and only sourcing as and when needed. My referencing and detail will increase immensely in Rounds 2 and 3 as I face-check what my opponent says, use stats to counter, so on and so forth. I want to build a beautiful case but not one that involves so much 'chipping away' as I am going to be building a lot on a little as opposed to a little on a lot.

Shoutout to Thett3 and bsh1 on DDO and here respectively for inspiring my speech, while inspired by them my speech is not directly from their debates.
For the sake of authenticity and avoiding plagiarism I will link the debates that inspired me and not reference back to them again as I'm wording things my own way:

While the specific number in a Jury and distribution required via affirmative action of race and gender among the Jury varies among nations (the least developed ones allowing it to be all-male or basically having no Jury at all if it's some Middle Eastern dictatorship or African nation that wasn't colonised properly or is bitter over it and got rid of the system of Justice put in place, think Congo etc.) a Jury is fundamentally the same concept in all societies that opt-in to employing one:


A jury consists of twelve ordinary citizens who are able to apply their common-sense to the matter of determining the guilt or innocence of someone accused of an offence.  The basis for a twelve person jury is that it is a representative cross section of the local community and therefore are more likely to judge in line with generally accepted values of the society. Jurors represent diverse backgrounds and therefore, individual prejudices are likely to be neutralised.

Of what importance is jury service?
Jury service is a very critical element of the justice system in our country.  The justice system in Jamaica like other democracies rests on the concept of trial by jury. Trial by jury ensures that the people are accountable to each other rather than to a government appointed judge for decisions made in such trials.

Discussions among juries in the main lead to more thorough consideration of all aspects of a case.

We anticipate that you if you are summoned, you will not hesitate to serve with clarity of mind, diligence, seriousness and a sense of pride.

Trial Jury
A trial jury, also known as a petit jury, decides whether the defendant committed the crime as charged in a criminal case, or whether the defendant injured the plaintiff in a civil case.

  • Consists of 6-12 people.
  • Trials are generally public, but jury deliberations are private.
  • Defendants have the right to appear, testify, and call witnesses on their behalf.
  • Final outcome is a verdict, in favor of plaintiff or defendant in a civil case, or guilty/not guilty in a criminal case.

Grand Jury

A grand jury is presented with evidence from the U.S. attorney, the prosecutor in federal criminal cases. The grand jury determines whether there is “probable cause” to believe the individual has committed a crime and should be put on trial. If the grand jury determines there is enough evidence, an indictment will be issued against the defendant.

  • Consists of 16-23 people.
  • Grand jury proceedings are not open to the public.
  • Defendants and their attorneys do not have the right to appear before the grand jury.
A Jury is always fundamentally a group that is supposed to represent the entire nation's 'norm' but since no 'norm' exists and also because 'norm' would not include a 'normal level of abnormality' it tries its best to combine many outlooks, demographics and does its level best in background checks to ensure those deciding the guilt of the person at hand are sane and as representative of the citizenry of the nation and its opinion as is feasible.

So what is Jury Nullification (JN) and why is it desirable? It's important to understand that while all nations who have Juries have them serve the same fundamental function, not all nations have the same respect for them and, without fail, you will find that ignoring the most corrupt nations that totally lack Juries as a whole (without fail), among the ones that have it the ones who outlaw Jury Nullification are... Lacking in many human rights and general criteria. If called out on it I will go into what the Human Development Index (HDI) is [http://hdr.undp.org/en/content/human-development-index-hdi[ but since I am aware that the HDI assumes dictatorship is 'bad' and holds democratic values as one basis on which it ranks nations, it's kind of a given so I am not going to use that as the reason it's wrong to lack a Jury, what I want to do is point out the following: The less democratic nations, out of the ones that actively use and endorse Juries, are the ones that don't have JN as part of their system.

What is JN exactly?
A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.

Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury.  It is considered to be inconsistent with the jury's duty to return a verdict based solely on the law and the facts of the case.  The jury does not have a right to nulification, and counsel is not permitted to present the concept of jury nullification to the jury.  However, jury verdicts of acquittal are unassailable even where the verdict is inconsistent with the weight of the evidence and instruction of the law.

That's the US law definition but it's very, very similar in all nations that have it in this regard.

If there is a law made that the Jury think is disgusting, wrong and/or stupid, they will basically 'null-guilty' verdict which is the same as no-guilty in practise but has a different connotation to it. It says 'we conclude the defendant did it but this is a barbaric/stupid/immoral law to enforce.' and the Judge has their hands bound by the verdict and must treat it as if the defendant didn't do it but puts on record that it was JN and it will often start a commotion in the Media and among lawyers and politicians to either change the law or vilify the Jury but the latter won't work well because if true, it means the system that screens Juries for bias and corrupt motives is the issue which backfires on the politicians and lawyers anyway.

Juries, in my own words and eyes, exist to represent the norm in 3 ways (I will prove this in later Rounds if need be):
  1. They represent the norm IQ in comprehending a case; evidence and context combined.
  2. They represent the norm EQ/EI in care for the victim, guilty party and law as a whole (many against JN think only the first of these are what the Jury has to care about, they are wrong).
  3. They represent the support of law by the norm in and of itself.
Many societies in this day and age vote on politicians but what you are voting is a forced package-deal that you, as a democratic unit, chose to be the 'least evil'. Even then, what if all viable options to vote for were not going to overthrow a particular law? Yes, yes we can say that's an issue to fix next election but what if the norm weren't even aware of a law or were dead sure this law should and will be removed soon and that the one committing the crime did so for the 'good enough' reasons to not be punished for it or have a criminal record? Then how do they express that? If you blackmail them to choose 'no guilty' or 'guilty', it is silly to assume they'll say 'okay sir, gun to my head he/she's guilty'. They are then encouraged to lie and say 'no guilty' and will do so as most people will lie for the right reasons (click for source on blue, bolded text). 

The world isn't black-and-white until it pushes a group of humans against a wall and says GUILTY or NOT GUILTY? Suddenly you turn an analogue into digital because the analogue lies with the Judge to punish proportional to the severity of the means of offence. The issue is what if the Jury believe that the crime itself, not just way it was done, are so minimal that it's quite putrid that the law of the society is against the values that the society holds at the time? This is why Juries exist in the first place; to represent the norm's opinion and value system there to the side of the stand; sitting, evaluating and contemplating your fate as a criminal or non-convicted citizen. You ask them to do this when the very law you broke is something they consider abhorrent to exist at all and/or anymore? Don't kid yourself, human morality shifts with time and context, the laws should shift with them and the aim of law is to match that is it not? 
blamonkey's avatar
blamonkey
Con
#2
Thanks in advance for this debate. I know it will be great. :-)

Framework

It is useful to provide some parameters as to what qualifies as “morally, or legally desirable” when analyzing the resolution. To better define what constitutes a “morally, or legally desirable” policy, we should look toward what fulfills the obligations that societies have to their citizens. This “duty” that the people of a society and the government have to each other can be best explained through the idea of a social contract, which Merriam Webster defines as the “an actual or hypothetical agreement among the members of an organized society or between a community and its ruler that defines and limits the rights and duties of each (1).” For instance, people limit their freedom by subscribing to the laws of the nation, while the government is prohibited from infringing upon the rights of others. The government is also obligated to protect the people that they govern, justifying standing armies, police forces etc. The purpose of the criminal justice system, then, is to “protect” innocent people from having their rights taken away while penalizing those that break this social contract. After all, what is a criminal “justice” system that doesn’t follow justice? For clarity’s sake, Santa Clara University’s Markkula Center for Applied Ethics defines justice as giving each their just due, or what they deserve (3). However, governments cannot determine what is “just” in a vacuum. They must consider the consequences of their actions as it affects the entirety of the people under their governance, who also happen to be a party to a social contract. Ergo, to better understand the role that the government plays in this debate, we must ask ourselves the consequences of our action, especially in how it relates to justice.
To this end, I create the following counter plan:

CP: Abolish “Victimless Crime” Laws

The best possible method for guaranteeing that people feel enabled in the political process would be the frequent use of referendums to determine laws that penalize “victimless crime.” The US Legal Dictionary defines a victimless crime as “a term applied to a crime which generally involves only the criminal, and which has no direct victim, as in the crime of illegal possession of drugs. Victimless crimes must be truly victimless. In many ways, a false statement offense is considered a victimless crime, in which, society at large becomes the victim (16).”
We can enforce this through legislative action by those elected and through referendums in which every election season (or 2-4 years if there is no defined “election season”), referendums are added to the ballot that would eliminate laws that people generally do not support. These referendums could be determined by a process in which citizens are polled for their support of certain legislation, or through a petition process in which people gather enough signatures and submit the proposal to the government. By popular vote, people could eliminate laws that generally hurt, more than help, society. Governments should prioritize eliminating laws that penalize people for possessing illicit drugs.
Through this manner, we can prevent egregious sentences for something as minor as drug possession. In the US, for example, there were 1.6 million drug arrests in 2017 alone as shown by the FBI Uniform Crime Report (17). This forces the US to overcrowd prisons and divert precious funds away from other initiatives to house inmates. The Center for American progress notes that $3.3 billion is spent every year to incarcerate people with drug related offenses (18). The average inmate is unlikely to be able to afford a decent lawyer and must instead rely on a public defender. These “public defenders” tend to have onerous caseloads that prevent them from effectively defending their client. In three US cities, (Detroit, Atlanta, and New Orleans,) public defenders have under an hour to prepare for a case before going to trial (19). This is unjust because not only are the defendants not given fair representation based off their income status, but taxpayers have their money wasted on enforcing needlessly draconian drug laws that not many want. In fact, the Pew Research Center notes that over 60% of Americans support the legalization of marijuana (21).
Prefer this plan over jury nullification for the following reasons:

C1: The Rule of Law is Eroded by Jury Nullification
The US Institute of Peace defines the rule of law as “an end state in which all individuals and institutions, public and private, and the state itself are held accountable to the law, which is supreme (4).”
The USIP continues, explaining why the rule of law is needed:
“For the population, rule of law is necessary to ensure safety and security for individuals, families, property, and businesses and to allow freedom of movement to access public services such as education and health. Rule of law is the foundation for economic and political recovery and prosperity (4).”
This makes sense. Without the rules applying to everybody, there is no legal deterrent that would prevent people from committing crimes in the first place.
A 2001 study published in the journal “Criminology” used a sample of college students to determine the probability of drinking and driving. They found that the certainty of punishment being increased by 10% decreased the likelihood of drinking and driving by 3.5% (5).
By applying jury nullification, we end up deterring fewer would-be criminals because the law would not always be enforced. People would realize that they have a greater chance of escaping a sentence that they rightfully deserve as the certainty of punishment erodes.
When societies permit the use of jury nullification, they are allowing for the erosion of the rule of law by not enforcing the law equally. While one jury may rightfully acquit someone on a trumped-up charge, it is important to note that perceptions shape reality. Another group of people may come to a different, but no more correct, conclusion. This damages the criminal justice system in any country, leading to less compliance with the law because people could simply be acquitted. Petty crimes would skyrocket without legal deterrence, and this undermines enforcement of the law. Even crime such as drunk driving, as evident from the above study, would be affected, causing more deaths.

C2: Jury Nullification Undermines Democracy
 Despite the multitude of nations that use the jury trial system to convict people, there emerges a trend in those that have juries. Many of them are democracies. Nations like Canada, the US, France Japan etc. happen to have elected representatives that are supposed to represent the people within their constituency. The reason for this is simple:
Democratic governments are based on the trust of electors putting people in power who will do good for the people. Daron Acemonglu, Professor of Applied Economics at MIT writes for the World Economic Forum in 2014, using data from 1960 to 2010, finds that “…a country that switches from nondemocracy to democracy achieves about 20% higher GDP per capita in the long run (over roughly the next 30 years.) (6)” Countries that choose to be democracies are also, by definition, more likely to be responsive to the needs of their constituency. This is because democracy increases political participation as people elect their representatives. This is likely the reason that we see greater economic growth, since the people in a nation are voting for what benefits themselves the most. This directly coincides with my framework because the duties that are listed to be the role of governments include the duty for the government to serve the people in exchange for them giving up certain rights (i.e. paying taxes, not breaking the law, etc.) However, jury nullification subverts democracy by making the decisions of a few overturn laws that people wanted. Sure, there are instances where reasonable people can see the folly in certain laws. However, when people can nullify the death penalty and let a killer go free, which happened in King County, Washington, we must consider the full extent of our actions (7). By a society permitting jury nullification, we are not giving each their just due because we are eroding laws that people may stand for. Even if I disagree with the application of the death penalty in modern society, I have no right to simply eradicate it in one case and disregard the wants of others who voted for legislators to put it in place. Recent evidence from the Pew Research Center in 2018 suggests that 54% of adults in the US support capital punishment (8). By nullifying the law because I disagree with the death penalty means that a group of 12 will supersede the beliefs of most of the US.

R1: Juries Represent the Norm
Juries do not always represent the norm to the extent that my opponent thinks. In the US, for example, there is extreme bias in jury selection. Lawyers can use “peremptory challenges” to remove potential jurors in the “voir dire” process in which juries are selected (9). These peremptory challenges require no explanation and are subject to frequent abuse despite the process in which someone can call foul on a peremptory challenge. The APA describes the process by which a party objecting to the strike “raises an inference” that the strike was based on race. Then, the lawyer that used the strike must provide a race neutral reason to the presiding judge over the “voire dire” process (10). Unfortunately, this process can still be abused as judges typically accept any reason as race neutral. A 2004 Prosecutor Trial Skills Course handbook entitled “Batson Basics,” (Batson referring to the SCOTUS case that declared “race neutral” reasons for excluding some jurors) offered some of the following reasons that were accepted by real judges which include:

“2 jurors were obese, which the prosecutor felt was equivalent to being lenient on punishment”
“Male had a 1970’s hairdo”
“Juror wore Bad Boy’s club jacket, snakeskin belt, and pink hat” (LOL)
“Juror wore a Malcom X hat.” (11).

This has led to continuing use of all-white juries. Jennifer Taylor of the Equal Justice Initiative recounts a 2010 study from the EJI which found that in the Jefferson parish of Louisiana, prosecutors have used peremptory strikes to exclude black prospective jurors at three times the rate that they do white prospective jurors. Moreover, in Houston County, Alabama, prosecutors used peremptory strikes to get rid of 80% of African Americans otherwise qualified for court duty (12). Another study conducted by Reprieve Australia in 2015 looked at trials in the Caddo Parish. They found that the percentage of trials with 2 or less black members in the jury was nearly 25%. Moreover, the acquittal rate for defendants increased when there were more than two members on the jury that are black (13). As recently as 2016, we see instances of all-white juries being used in murder trials where the defendant is black. For instance, Meechaiel Criner, a black man who was suspected to have killed University of Texas freshman Haruka Weiser, was given an all-white jury for a crime that was committed only 2 years ago (14). Was he guilty? I don’t know. What I do know is that all white juries convict black people at a higher rate than mixed juries in murder trials. Duke University, in their 2012 study of over 700 felony cases within Florida found that all-white juries convicted black defendants 16% more often than white defendants (15).
If juries are not always representative of the norm, how can we trust them to be any less abusive than the purported unjust law? We can’t. My opponent states the following:
“While the specific number in a Jury and distribution required via affirmative action of race and gender among the Jury varies among nations (the least developed ones allowing it to be all-male or basically having no Jury at all if it's some Middle Eastern dictatorship or African nation that wasn't colonised properly or is bitter over it and got rid of the system of Justice put in place, think Congo etc.)”
If certain nations are not going to have fair juries, why do we necessarily see outcomes that favor justice? Even in the US, we can observe clear examples of systemic abuse. In 2008, the US got a glimpse of the horrid abuse that can occur with jury nullification when Luis Ramirez was beaten to death after being subjected to a deluge of racial slurs. Despite overwhelming evidence, they were acquitted of the murder. They eventually got a slap on the wrist in the form of a “misdemeanor assault (20).”
While it is easy to suggest that juries can/should represent the norms of society, and thus accurately determine what is right and wrong better, we do not necessarily see that in practice.
If we really care about the norms of society, then we ought to have referendums and legislative action that better reflects society’s norms. This way, we do not have to rely on the vote of 12, and instead can rely on the vote of millions. My CP does this, getting rid of the unfair law at its source.

R2: People are Not Informed of Bad Laws
My opponent argues that if the “norm weren't even aware of a law or were dead sure this law should and will be removed soon and that the one committing the crime did so for the 'good enough' reasons to not be punished for it or have a criminal record? Then how do they express that?”
I have 2 responses
Essentially, he states that it is entirely possible that people are not aware of certain laws that are unjust. Fair enough, but under my CP we guarantee that these laws are being discussed and possibly repealed through the referendum process.
Also, jury nullification depends on members of the jury knowing that they can nullify. In the US v. Thomas ruling of 1997, it was determined that jurors could be removed if evidence is shown that they intend to nullify a law (22). As a result, cases in which nullification is sought are slim.

Conclusion
It is tempting to look at the monolithic, pervasive legal code in any country and declare “that shouldn’t be enforced.” However, the practice of intentionally nullifying the law in a specific instance leads to lasting impacts on the rule of law and democracy. Not only this but juries are not representative of a country’s ideals. If we want to enact change the solution is simple: enact change. Do not rely on such a destructive practice such as jury nullification.

Sources

Round 2
RationalMadman's avatar
RationalMadman
Pro
#3
To understand why Jury Nullification is desirable morally and legally requires us to first comprehend the inverse scenario and why it's not only different but leads us to support Jury Nullification due to the reasons that it's morally reprehensible and legally out of order. While the following idea is absurd, it could really happen: think of a scenario where vegetarians support putting all slaughterhouse workers, owners and at the distribution-end comparing butchers and supermarkets to being 'dealers' like to a drug cartel. It's perhaps more feasible that they clamp down on factory farms and the Halal method of killing animals (because this forces the animal to writhe consciously during the torturous bleeding out) and would want to do the inverse of Jury Nullification in that they punish the person/people for laws that weren't in place yet at the time of the trial as enough of the Jury in this imaginary society support the cause of PETA and what-not. There is a reason why this is morally reprehensible and legally unjustifiable but the very reason is also why Jury Nullification in the inverse scenario is severely 'good' in a net-morality, net-legality sense of the term.

It's easy to hate wrongful conviction on a moral level (let alone legal) when it happens due to lack of data and/or due to falsified testimony and portrayal of evidence:

[B]ecause of the perverse and mercurial nature of the devils with whom
the criminal justice system has chosen to deal, each contract for testimony
is fraught with the real peril that the proffered testimony will not be
truthful, but simply factually contrived to "get" a target of sufficient
interest to induce concessions from the government. Defendants or
suspects with nothing to sell sometimes embark on a methodical journey
to manufacture evidence and to create something of value, setting up and
betraying friends, relatives, and cellmates alike. Frequently, and because
they are aware of the low value of their credibility, criminals will even go
so far as to create corroboration for their lies by recruiting others into the
plot.

Then what if the Jury knows you didn't do any real current-law-breaking but wants to put you in prison anyway as you deserve it even if not for the crime they convict you of there and then. You see, the slaughterhouse workers couldn't be prosecuted for laws that didn't exist (it's extremely unheard of that laws get enacted retroactively, while lifted laws can be pardoned retroactively and the reason is central to my case). This is reprehensible because of who suffers as a result of faulty law despite never knowingly violating a law of the land (or at least not the law of the land that the Jury is calling them 'guilty' for). In all these scenarios, I would say that Con's rebuttals hold ground but here is why Con fails thus far on a fundamental level; he is ignoring the suffering of the convicted in the JN case.

If we turn this on its head and in a society that has such vegetarian laws, the society has progressed to severely consider the meat-trade and/or drug-trade as morally less reprehensible than it used to be, there should (as Con correctly points out) be systematic greased wheels to ensure the fastest, most relevant, changes made to the law regularly based on what the society thinks should be reformed, redacted and/or added/removed as exceptions. This is true, all 22 sources of Con are going to end up not mattering unfortunately as we agree. Con is saying that JN should be a last-resort and in fact not a resort, at all, that the society ever can justify going to the lengths of but this is based on bare assertion. Con focuses solely on the 'retribution' aspect of Law in saying it's about giving the Just what they are due and not about rehabilitation or deterrence yet even if we focus solely on retribution, we can see that morally it's wrong if the properly selected Jury, which represents the normal and/or sane in society, concludes that it's inhumane and morally reprehensible to put that person through said punishment. 

The blind belief that we'll 'reform law in due course' and do so in time to repair the damage that has been done to that person, their life, and the lives of their family, would-be friends and would-be coworkers (actually would-be family too as butterfly effects also prevents procreative sex among other things) is absurd and morally-blinkered. It is morality that is central, law should form around morality. Morality should not form around law, not ever. 

1. The law can be valuable,
2. but it can also be the source of much evil.

Not everyone agrees to these truisms, and there is nothing inappropriate in challenging them, or examining their credentials. They are, however, truisms in being taken by most people to be obviously true and beyond question. In other words, they express many people's direct reactions to or understanding of the phenomena, an understanding which is open to theoretical challenge, but has to be taken as correct absent a successful theoretical challenge.

Morality is the very reason we have a Jury. We specifically select people who aren't legally biased or experts in any official capacity so as to leave them as baby-faced moral compass leaders into the direction of the most desirable verdict morally. Usually this is supposed to be in line with if the person actually did the crime or not but in a scenario where they agree that the law itself is abhorrent and that putting the person through punishment and removing such a valuable gem from the law-abiding majority of society is unjustifiable given how morally sound the person is in breaking saw-law and what would be done to them during the gap-in-time between their conviction and the law being successfully reformed. You can't say 'go to prison because the system is broken so we can fix it while you're in there'. This is wrong, period. This is not how Justice should work even under Con's retribution-only blinkered view of it.

I believe that this is all that needs to be said for this Round as Con's attack has not attacked my side so far but has said so much that I agree with and know. We need to reform the law faster, we need to avoid the need for JN as much as possible but JN being there and the Jury not being punished legally for what they do (or 'nullifying the nullification') are all extremely important elements of respecting what the Jury is there for and the sacred 'moral compass guide' that they are to the Judge and Justice system as a whole.
blamonkey's avatar
blamonkey
Con
#4
I am going to go over my opponent’s case first and then defend mine.

R1: The Thought Experiment

My opponent creates a world in which industries relating to meat are highly stigmatized by fringe-groups like PETA. The jurors would then declare that the defendant is guilty out of spite due to their career.
I am confused as to why this example proves the affirmative case. Regardless of whether the inverse of jury selection, (in which a jury of peers decides to convict someone for a ludicrous reason,) is just or not, this entire point is a non sequitur. This is the argument that has been created by Pro:

Because the inverse of jury nullification is unjust, jury nullification must be just.

For the record, Merriam Webster defines a non-sequitur is an argument in which an argument does not logically follow a conclusion. My opponent has yet to explain why this thought experiment proves anything, or even how it relates to his case. Later, he states that:

“…here is why Con fails thus far on a fundamental level; he is ignoring the suffering of the convicted in the JN case.”

Once again, I am confused as to what he is claiming. Either he is referring to his thought experiment in which someone did get convicted because of a rogue jury, or he is referring to actual jury nullification cases in which nobody is convicted because a law is nullified. I would like some clarity here. Despite the confusing wording, this argument is not linked to his affirmative position.

R2: Bare Assertion
My opponent claims that my objection to jury nullification ever being used is a bare assertion. It is not. I presented 2 legitimate harms as it undermines the rule of law and subverts democracy.

R3: Retribution

My opponent states that my case only revolves around retribution and not rehabilitation or deterrence. This is not the case at all. I offer evidence that suggests that the certainty of punishment is a major factor in guaranteeing that crime is deterred. Here it is again:

“A 2001 study published in the journal “Criminology” used a sample of college students to determine the probability of drinking and driving. They found that the certainty of punishment being increased by 10% decreased the likelihood of drinking and driving by 3.5% (6).”

My position keeps crime rates low because jury nullification undermines the certainty of punishment. Consider an event in which jury nullification is used in a violent neighborhood. If local news spreads that jury nullification was used in the area, then others would not be as likely to be deterred from committing crimes because the perceived certainty of their punishment decreases. Even if crime only increases a little, for a poor area with dwindling city budgets, this could mean police officers being laid off, less training, or giving out harsher fines because they need funds.

R4: Jurors Represent the Norm

Kanye West puts it best:

“No one man can have all that power…”

Unfortunately, lawyers do.

Jurors represent what the prosecution and defense want to be the norm. It does not represent the norms of society in an accurate way. Remember, societies such as the US have peremptory challenges that can remove jurors for no reason. Other governments, such as Australian, Ireland, and Canada also have these peremptory challenges to remove potential jurors without sans reason (2) (3) (4).
I have already explained how it leads to all-white juries in the US, but there is also controversy surrounding the use in other societies as well. The Irish Times recounts:

“At the Central Criminal Court in Dublin earlier this year at a trial for sexual assault, the defence used all seven of its entitlements to challenge potential jurors. As each person stepped forward the defence team sized them up and either accepted or rejected them. They excluded as many women as they could and also rejected older men and those in shirts and ties.The result was a jury made up of nine men and three women, with most of the men appearing to be of a similar age and background to the defendant. As it turned out, despite the challenges, the defendant was convicted.”

In an ideal world, jurors would be fair. Unfortunately, this rarely occurs. With the defense and prosecution concerned with their win-loss ratio, and with doing their job well, there are perverse incentives when it comes to jury selection. For example, if I am a defense attorney, my prerogative would be to find jurors who would acquit my client, not who represents the norm. Even in places which do not have peremptory strikes, this incentive festers.

Why does this matter? Increased polarization is a major factor that impacts jury selection, especially when concerning race. I have already given evidence showing how the power of jury nullification can be used for racist intentions with my Luis Ramirez evidence (5). More evidence of racial divisions impacting jury selection is available though.

The Associated Press in September 2018 recently reports on the jury selection process for the case of Jason Van Dyke. Race became an important issue after a peremptory challenge was used to exclude a black woman. Eventually, the challenge was overturned, but it does represent the efficacy of these trials. It should be noted that the defense already excluded 2 black jurors from the trial for what the judge deemed “race-neutral reasons (7).” If you read my previous case, you would see why that is an issue because judges accept a lot of B.S. when it comes to race-neutral reasons.

My opponent also talks about those who are sane. Let me be clear. I am not claiming that every all-white jury is filled with racists. However, due to implicit bias, they are more likely to sentence a black person than a white person per my previous Duke evidence (8).

R5: Recourse to Victims

My opponent states that changing the law would not stop the harm that is done to people who are given lengthy sentences for ridiculous crimes. Yet, pardons can be granted to people who were subject to bad laws and their applications. The PARDON initiative in the US was used to acquit first-time drug offenders in the US, commuting the sentences of over 1000 people (9). Other countries, such as France and India, also can commute needlessly draconian sentences.
Let me be clear, these commutations need to happen more frequently and are in no way the best way to deal with bad laws. However, my CP would stop millions in the future from falling victim to unfair laws as society progressed. My opponent even agrees that this is a needed system:
“…there should (as Con correctly points out) be systematic greased wheels to ensure the fastest, most relevant, changes made to the law regularly based on what the society thinks should be reformed, redacted and/or added/removed as exceptions.”
My plan solves for this better by preventing people from becoming victims of unfair laws to begin with.
Also, when only one or a few members of the jury want to nullify, and others do not, the possibility of a mistrial occurs. In the US, a unanimous vote is usually needed for criminal cases. If a single juror disagrees, then that could throw the proverbial wrench into the entire trial. George Washington University Law School Professor Cynthia Lee explains that:
"when a case is retried following a mistrial because it can learn from mistakes it might have made at the first trial (10)."
While mistrials are not common, the use of jury nullification is not necessarily either. With the increase in hung juries and thus mistrials, there is still no recourse for the victim. Do not pretend for a minute that there is a perfect solution for victims of bad charges. At the very least, my CP prevents this in the future through the power of the democratic vote. This helps more people, not less, when compared to my opponent’s plan of simply choosing when to enforce the law and hoping that nullification happens enough to stop bad applications of the law.

R6: Morality and the Law

My opponent claims that morality should shape our laws, and not the opposite. The reason that laws are in society to begin with is to protect people, and their rights. Under the social contract, we give up certain rights for the government to protect us and for society to form. I emphasize in my framework that the government has an obligation to protect the people, and the obligation should logically extend to policy. It would be unjust to not extend the government’s obligation to policy because it would otherwise break the social contract, which is the fundamental basis for society.
 
Now, onto my case.
 
Dropped contentions:

My opponent drops my first and second contentions. Extend these across the debate.
My CP
Because my CP affects more people because we prevent these unjust laws from existing to begin with, my plan wins out at the end of the day. By preventing more abusive laws through democratic action, as opposed to not following the rule of law, we are able to help more people. My impact about less drug convictions also extends across the debate.

Past Refutation

My opponent has not responded to the lack of actual cases of jury nullification, or the fact that jurors are not always representative of the people. Cross apply my evidence concerning the lack of jury nullification (11).

Conclusion

If jury nullification happens, (despite its current infrequent use,) it undermines democracy and attacks the rule of law. This goes unaddressed by my opponent. He concedes that my CP has merit. His defense of jury nullification is a thought experiment that fails to link to the topic at hand. He does not take into consideration the consequences of having biased jurors that, despite my opponent’s claims, do not always represent the “norms” of society. Even if he wants to have my CP and his plan, he needs to grapple with the harms that I presented. Because he has not, vote in the negation.

Sources
 
 
 
 
 
 
 
 

Round 3
RationalMadman's avatar
RationalMadman
Pro
#5
What exactly is morality and what makes things morally desirable? What exactly is legality and what makes things legally desirable?

If both the Prosecution team and Defending team of lawyers arrange a Jury that they agree is fair and note that a Client is actually entitled to waive all representation in the nations that Con brings up... Then where's the issue if once in a while all happen to be white? I am not saying this should happen more than one would expect but to go to the extreme of Affirmative Action mentality to suggest that in a white-population-heavy nation that once in a while there'll be an agreed upon all-white Jury on both sides as proof of corruption is not only plain wrong due to it not being provably corrupt at all but because it contradicts itself. If both the Prosecuting lawyer and Defending lawyer believe this Jury is fairly split and used the system to the best of both their ability then arguing that a sample size isn't always the exact ratios of the nation isn't proof that it's not the norm overall factoring in many things. In the all-white Jury the genders were evenly split were they not? Are blacks somehow convicted less harshly if/when the Jury has more black members? Considering how few trials that are all-white in the first place, a 16% skewing in their conviction rate of a black defendant is tiny therefore (which is a race that is generally poor and this is a wrong association between race and crime-rate being 'wrong conviction').

In fact, the entirety of Con's case doesn't hit the resolution whatsoever. Saying that we should reform law and put people in prison for a law that literally could be 'don't breathe' enacted against the will of the people or as a subtle clause to a greater much craftier worded 'oxygen theft' law etc... How can you justify putting people through punishment for a law while the legal system has to catch up with morality? Con doesn't explain why Law shouldn't and doesn't revolved around morality as opposed to morality revolving around what's legally convenient or 'officially correct' to do path-wise.

I am  yet to get a proper counter to what I raised in Round 2 and no, I will not engage in point-by-point combat here. I know what will happen if I do. I will risk appearing lazy to voters because I know what Con's strategy is here. He is stacking many stats and findings to detract or rather, distract you the reader and voter from realising that this debate is about what's morally and legally desirable in an extreme scenario, not about disproving me based on said scenario being extremely rare to be needed as a solution to faulty law in most societies.

I never argued JN should be the first solution to the problem, I didn't argue that in an optimal society, JN would have to happen often. This is not about what should happen most of the time in most societies, this is about what is desirable to be legally exempted and morally encouraged in the extreme scenarios (which are the only scenarios) where it's required and thus done. Con is trying to say Juries are not the norm or not really Just but this is based on a lot of fallacious paintbrushing and essentially is saying the lawyer of either team didn't really want their client to have the best Jury possible for them or that they're so incompetent that they chose poorly for their client. Competence is not perfect in all lawyers, that's true but that is not at all an argument to make here. Improve the selection process, do not for a second thing that justifies stopping such an extreme scenario as JN which is done for extremely rare situations where there's no other way to stop what society sees as morally wrongful conviction and since law should be subservient to morality then the situation being legal guilt in the face of moral innocence in the eyes of the Jury to, as a collective, verdict 'no guilty' via nullification of guilt, is simply the desirable thing to do.

I may lose this debate and so may Con. I am not going to help Con by fighting their structured, stacked points that are bundles aimed at false angles. I am going to hope the competent voters see that it's not me playing dirty, it's me sticking solidly to my case and not allowing Con to detract from it.
blamonkey's avatar
blamonkey
Con
#6
Thanks for the debate! I am going to go over my opponent’s case, and then mine.

R1: Juries =/= the norm

The prosecution and defense are not working together to create a fair jury. They are working separately to exclude people that would hurt their case. The reason that black people are excluded from jury duty is that the defense or prosecution thinks their presence would hurt their case. Lawyers want to win their cases.
It is quite reasonable to be concerned about this incentive resulting in biased verdicts. He already concedes that my Duke evidence proving that all-white juries convict more black people. He states that the 16% skew against black people is insignificant given the amount of all-white juries in the US. I have 3 responses.

1)      Jury nullification is used infrequently too. Even if the 16% skew doesn’t always result in more false verdicts, we are both talking about infinitesimal numbers of people being affected.

2)      16% means the difference between life and death. If my opponent cares about the victims of bad laws under jury nullification, (even after my CP is applied and eradicates said laws,) then he should equally care about the injustices felt by people who are falsely convicted.

3)      Even in a white-majority nation, the amount of peremptory challenges against black people is ludicrous. Cross-apply my Reprieve Australia evidence and my Equal Justice Initiative evidence which shows that Houston County, Alabama, and the Caddo Parish in Louisiana both experience severe bias in jury selection that disproportionately excludes black people (2,3). It was shown that 80% of potential black jurors were excluded from juries in Houston County, and that the acquittal rate for defendants increased when there were more than two members on the jury that are black in the Caddo Parish. My Duke University study noted that 40% of the cases they examined had no black jury members (6).
The effect of unfair jury nullification based on race can be easily seen with my Luis Ramirez evidence, when two teenagers narrowly escaped justice after a jury nullified them (4). These instances will happen more frequently if all societies that have juries allows for the practice. My opponent even concedes that juries tend to be biased in his R1 post.

“While the specific number in a Jury and distribution required via affirmative action of race and gender among the Jury varies among nations (the least developed ones allowing it to be all-male or basically having no Jury at all if it's some Middle Eastern dictatorship or African nation that wasn't colonised properly or is bitter over it and got rid of the system of Justice put in place, think Congo etc.)…”

Even in nations such as the US which are developed and do not rely on dictatorship, there are severe issues.
My opponent also asks a few questions that I would like to answer now:
“In the all-white Jury the genders were evenly split were they not?”
Even if the genders are equally represented in all-white juries, my 16% bias still applies. I do not see the relevance. There is a notable bias in Ireland for serious criminal cases in which only 26% of cases, women and men were evenly split on the jury based on an analysis of 200 trials (5).
Are blacks somehow convicted less harshly if/when the Jury has more black members?
Yes. Once again, look toward my Caddo Parish evidence which suggested higher acquittal rates with one or more black jury members (3). My Duke university evidence confirms this, explaining that with one black jury member, the 16% skew is almost eliminated (6).
He brings up 2 pieces of evidence concerning the link between poverty and crime. He also states that many of these cases are not wrong conviction.

“…this is a wrong association between race and crime-rate being 'wrong conviction'”

Data provided by the Death Penalty Information Center suggests the contrary, noting that the majority of exonerees of those who were on death-row happen to be black in comparison to all other races (7).
This will affect jury nullification cases as much as it impacts murder trials, as shown by my Luis Ramirez evidence.

R2: My CP, and his changing of his advocacy

Essentially, my opponent is arguing that my CP is not topical. If the purpose of jury nullification is to eliminate faulty convictions, then my CP solves for this. We also prevent future “bad convictions” as the law is changed. This is better than jury nullification since it is used sparingly, and only if the jurors even know that they can nullify. My opponent even indirectly destroys his offense:

“…this is about what is desirable to be legally exempted and morally encouraged in the extreme scenarios (which are the only scenarios) where it's required and thus done.”

The resolution, or debatable topic, is as follows:

“Jury Nullification is desirable morally and legally if the society in question has Juries.”

If we only care about jury nullification in “extreme scenarios,” (whatever that means,) then that should have either been part of the resolution or part of your plan in your first constructive round. You cannot just change your advocacy willy-nilly like that. In fact, this argument is fallacious as it moves the goal posts. Moving the goal posts means that my opponent is demanding that I counter new arguments after I already answered his original one. His original argument was that jury nullification should not be accepted morally and legally, and now he is stating that only in extreme situations, it should be used. The qualifier that he used was not part of the debate up until now, and completely changes the argument that he is making. If he can change his argument into a plan for implementation half-way into the debate, then why is it an issue for me to have a CP?

Even if you do not buy that analysis, then consider my framework which has gone unaddressed this entire time. We primarily care about our actions as they pertain to justice, as to not violate the social contract held between the government and the people. My CP enforces this, eliminating drug laws that are destructive to society.
His other claim regarding my CP is that the law takes time to change even under my plan. I agree, but that does not change the fact that jury nullification is not widely used enough to help people who are convicted under dumb laws. My plan better provides for the people than my opponent’s.

R3: Law and Morality

He states that I have yet to provide a response to his argument that morality should shape the law. I did last round. Here it is again:
“My opponent claims that morality should shape our laws, and not the opposite. The reason that laws are in society to begin with is to protect people, and their rights. Under the social contract, we give up certain rights for the government to protect us and for society to form. I emphasize in my framework that the government has an obligation to protect the people, and the obligation should logically extend to policy. It would be unjust to not extend the government’s obligation to policy because it would otherwise break the social contract, which is the fundamental basis for society.”
Morality is important; however, laws are mostly made to protect the public. I have not been told why this is an unacceptable response up till now.

R4: The Kritik

He offers what I presume to be a kritik based on what he sees to be unfair tactics in my argumentation because I:
a)       Post a lot of evidence
b)      Write a lot
Let me be clear: I do write a lot and offer a lot of evidence. This is no way prevents my opponent from doing the same. We both have three days to post and limiting myself to so many characters because my opponent doesn’t want to refute point-by-point like I do is an unneeded handicap. Keep in mind that my opponent could easily have restricted the character limit in his rules, or by literally changing it when he created the debate.
Also, my case is not all that expansive. The average person can read at 200 words per minute according to Execu-read. My original case had about 2,500 words (8). Divide this by 200, and you get 12.5 minutes of reading time necessary for the average adult in the US. Certainly, this is more than an average DDO case. However, this is not unreadable. Moreover, my use of bolded topics to separate points also helps the reader.
RM, I don’t want to win via giant text wall. That is not like me. I ask the judge to recognize this as well when voting.

R5: Lawyers want to lose?

My opponent believes that my argument was that lawyers do not want what is best for their client. That is false. Lawyers want to win and will use peremptory challenges to get rid of jurors who they think will be bad for their case. If they are defending a racist, per my Luis Ramirez example, then they will exempt as many black people is possible. They do not just do this in race-laden cases either, as evident from the multitudes of all-white juries still in the US. If a black person is on trial for hurting a white person, there is still an implicit bias against black people that is exploited by lawyers (who, to be clear, include the prosecution and the defense.) The existence of all-white juries, and my aforementioned refutation at the top of my case, both point toward this undeniable fact.
 
Onto my case:

Dropped contentions/arguments

Both of my contentions are dropped.
My refutation into his thought experiment is dropped.
The fact that my CP helps more people is dropped.
My framework is dropped.

Conclusion

My uncontested framework is concerned with the application of justice in the real world. The moral implications of my opponent are not tangible, and far-removed from reality. My impacts are not. We do not give people their just due if their democratic vote is taken away from them because a group of 12 people decided that their opinion is more important, no matter how correct their assumption is. We undermine justice by undermining the rule of law, which undermines deterrence if it is used often enough. In an equally possible world, jury nullification is used sparingly and does not effectively stop the application of bad laws. Either way, justice is undermined since either

a)       Crime increases, including drunk driving according to my evidence which unjustly takes away life or

b)      Nothing happens, and faulty laws/application of said laws continue.

My CP solves for this better, ensuring that poor decisions by legislatures are undermined.
 
 
Sources


 
 

Round 4
RationalMadman's avatar
RationalMadman
Pro
#7
I lost this debate anyway, good game. I quit this site but I lost this debate anyway, I have not had my mind changed, I just came from the wrong angle.
blamonkey's avatar
blamonkey
Con
#8
I would like to thank my esteemed opponent for a gracious concession. It was a fun debate. :-)