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Citizenship 101
Posted by KTK

I had jury duty last week (explaining the sad paucity of my wisdom amongst these pages of late - but rejoice!, readers, I return).

It’s an interesting experience, as anyone who’s done it will know. I wasn’t selected for a jury - I observed voir dire for a child-molestation case that everyone was trying desperately to get out of, but they filled the jury before I was questioned; then I was questioned for a drug-selling case but was not selected for the jury - but simply confronting the process was provocative.

It took a lot of thought for me to finally decide to commit perjury during voir dire.

The case was for drug sales near a school. New York State has some of the harshest drug laws in the country, stemming from bills passed in the early 70s under then-governor Nelson Rockefeller, in his bid to prove himself vicious enough to deserve the Republican nomination for President (he was, but didn’t get it anyway). Since amended, but still known collectively as the “Rockefeller laws,” they specify very harsh penalties for drug crimes, in some cases life.

In most cases, drug crime penalties depend on the weight of drugs sold or in possession (although the highest-category felony in New York, receiving a sentence of at least 15 years to life, is for only two ounces of narcotic - there is no distinction between a street dealer pushing ounces and an importer pushing kilos). However, in the case of sales near a school, any such sale is a second-level (”Class B”) felony irrespective of how little drug is involved. The standard sentence for Class B felonies is a minimum of one year to a maximum of 25 years; the only exception is for . . . you guessed it, drug sales near a school, for which the penalty must be for a minimum of two years and a maximum of anywhere from 6 to 25 years, and the maximum must be three times the minimum imposed.

One final wrinkle is that “near a school” is defined as within 1,000 feet in any direction from any public or private school, school playing field, day care center, pre-school, or similar structure. Manhattan, where this (alleged) crime occurred, is 13 miles long and 2-4 miles wide; it has over 450 schools and God knows how many day care centers, pre-schools, and so forth. There are neighborhoods where there are, literally, no places at all where you are not “near a school” under the meaning of this law - making all “ordinary” drug crimes by definition “sales near a school,” and eligible for penalties up to 25 years, irrespective of how much drug was present or whether the school or schoolchildren were at all involved in the crime.

In this case, remarks by the prosecutor made it clear that the drug in question was cocaine and that the amount involved was very small; he used the phrase “personal use,” and also said “we’re not talking ounces” while questioning potential jurors as to whether they would be able to convict someone even knowing that the amount of drug was “very small.” Several jurors expressed concerns about the unfairness of the Rockefeller laws, and were dismissed. Some also expressed concerns about the phrase “near a school,” explaining that they were parents or teachers and had very harsh feelings about endangering kids with drugs; the facts that “near a school” means “within 1,000 feet of anything defined as a school,” and that there was no suggestion the defendant was actually selling to schoolkids, were not mentioned, and these jurors were also dismissed. The possibility of a maximum 25-year sentence was also not mentioned, although many jurors said they were worried that the penalty would be too harsh given the small amounts of drugs in question.

The lawyers were having trouble filling the jury panel. Almost a quarter of the potential jurors were dismissed after saying they could not convict under the Rockefeller laws if they were not allowed to take the weight of the drugs into account. The judge refused to discuss that issue. The prosecutor objected and was sustained when the defense attorney mentioned that the DA could have chosen to bring more lenient charges against the defendant. From a panel of 60 or 70 potential jurors, they were down to the last 20 with only half a jury picked, and people were being dismissed right and left after saying they could not bring themselves to be impartial. I was one of the last 6 people to be questioned; I had had the entire day to watch the proceeding and consider my own thoughts on the matter.

It seemed obvious to me that the law in this case had lost its connection to the moral force that gives law its meaning. Basic moral principles underlying the law are vacated in these drug cases, and the jury are expressly prohibited from bringing any sense of the moral content of the law to bear when required to be the agents of a state that claims to act in their names. The problems include:

• The penalty is mitigated by no sense of proportionality relative to the crime. The “badness” of the sale - the amount of drug sold - is irrelevant to the penalty, and the penalty is much harsher than for many more serious crimes.
• The definition of the crime is disingenuous. Harsher penalties for sales near schools are justified as a way to protect children from criminal predators, but the definition of “near a school” simply makes almost all crimes without distinction crimes “near a school”; the definition also makes no reference to whether school children are actually involved in or affected by the crime.
• The state has, and uses, the power to manipulate charges and evidence in such as way as to increase penalties disproportionately (e.g., charging for sales “near a school” on technical grounds; charging sales to two people as two separate crimes; charging for possession and for sale for the same offense; deliberately waiting for multiple sales to occur in order to charge multiple offenses; etc.)

The position this left me in is that the state was demanding that I act as its hatchet man in imposing an unjust penalty - a penalty defined without regard to the principle of just proportionality, for a crime defined in such a way as to increase the potential penalty arbitrarily. The state was further insisting - at times angrily, as the judge confronted more and more citizens who would not countenance this behavior in their names, and refused to sit on this jury - that I refuse to admit the demand of principled and proportional exercise of state power into my deliberations, but simply accept the law as dictated and consign the defendant to a fate similarly dictated by the state, one the state would not only not allow me to consider but not even to know in advance.

This procedure actually makes sense, in a decent and well-governed state. The jury is the “trier of fact” - charged only with determining whether, to a “reasonable person,” the facts proven by the state meet the definition of the crime given by the judge. The jury is not asked whether it thinks the law is just. The law must be just, but it is at the point of legislation that the values of the state, and the principle of justice, are read into the law. If necessary there is a Supreme Court to determine whether the legislature has egregiously failed in its duty to make the law just. Once enacted, however, citizens are not allowed to break the law because they personally disapprove of it; jurors are not allowed to engage in “jury nullification” because they do not approve of the laws they are asked to enforce. In both cases the result would be anarchy, which is (presumed to be) worse than the risk of unjust laws. That’s fair enough - it’s what I tell my students, in fact, in my political philosophy class. It’s even true - if the system works, if the laws are just, or at least not too unjust, and if there is a working system to bring them back into line when they deviate from justice.

No one can pretend that is the case in the United States today - nor has it been on the “hot button” issues, like drugs, for a long time. That is how we come to have the Rockefeller laws, and why they keep getting worse. For a juror who insists on their own moral authority - who insists they will not be the instrument of the state’s injustice - there is no way to enforce certain laws and remain clean. As a juror acting within the constraints of the juror’s assigned role, you must surrender your authority to bind your own actions to your own principles, and willingly make yourself the tool of the values adopted by the state, under conditions defined by the state. If the law is at least reasonably just, a decent person can participate in such a system as a necessary part of governing a complex society; if the law is unjust, a juror then surrenders their own moral agency and will to an unjust system - they willingly make themselves an agent of injustice. That, no decent person could do.

It seemed obvious that I had to say as much to the court - which would immediately have gotten me kicked off the jury (which was what I wanted anyway - nobody actually wants to serve on a jury). But that would also have left the defendant with a jury consisting only of people who were willing to give up their own moral agency to the state within an egregiously harsh and unjust system - people, that is, who didn’t care whether crimes are defined reasonably and penalties are proporational to the crimes. That would not be a personal participation in the system, but it would be the consignment of the defendant to that system as a means of avoiding personal discomfort with it - the “Pontius Pilate option.”

I at first resolved to tell the court that I also had qualms about the Rockefeller laws and was not willing to convict the defendant for only a small amount of drug. (The problem here was not just that I felt the law was too harsh, but that the court refused to tell us what it is at all. I did not know at that time that the maximum penalty was 25 years for any amount of drug, and the court refused to specify what the penalty might be - though the judge kept insisting that, although we could not consider the possible penalty, we still had to be willing to convict for even the tiniest amount of drug. So, there was the possibility - later proved true - of a very harsh penalty for a very small amount of drug, but the court would not give us the facts of the matter. We were being asked to render a verdict with no information at all about its possible consequences, and forbidden to take any notion of proportionality - either the amount of the drug, or the length of the sentence - into account. I might have been willing to render a harsh verdict for a large sale, or a lesser verdict for a small sale, but they refused to tell us anything at all, so I could not know what I was really being asked to do. I could only assume the worst - which in fact turned out to be the case.) But as I considered the matter further, it seemed to me that a real sense of the moral content of the law required that the jury should have some voice of moral obligation on it - someone who was willing to insist that the state behave reasonably, define its criminal charges reasonably, and make the punishments fit the crimes charged.

I was not pulling for an acquittal - I have no idea whether the defendant is guilty or not. I was also not carrying a brief for a broad theory of jury nullification in all cases. I did insist, though, that if the state was going to charge a crime with an (apparently - and, now I know, in fact) extremely harsh penalty, they should have to prove a severe violation; it could not put this guy away for 25 years for handing over a couple of lines for “personal use.” Given this concern, I was not able in good conscience to “render a fair and impartial verdict according to the law” under the terms laid down by the court, because those terms were unjust. But if I said that under questioning, I would be kicked off the panel, and the defendant would get a jury composed only of people who would willingly disregard any notion of proportionality in judging the case. If I lied, there would be one vote on the jury that would be withheld unless the state proved its case to the terms I felt were appropriate - but at the cost of a breakdown in the jury system itself. As the day wore on, I wondered more and more how I could respond to the selection questioning, and what my obligations were to bring some notion of proportional justice into this system - a system I didn’t want to be part of in the first place, didn’t want operating in my name, and certainly couldn’t allow to operate by my hand, yet also could not abandon to the unquestioning moral conformism of those who didn’t care enough to speak out.

Finally my name was called. I took the oath. I heard the questions. I lied.

Then they kicked me off the panel anyway.

March 22nd, 2004 Politics | 2 comments