From: Valence (valence10@hotmail.com)
Date: Sat Nov 02 2002 - 00:25:17 GMT
Hey Erin,
This story begins in jolly ole' England, hundreds and hundreds of years
ago.
The courts were seen by the masses much like our modern courts are
described in the Newland article. They were perceived to be rigid and
mechanical, bound to the black letter of the law, forbidden from thinking
outside the box.... totally STATIC. Now, this characteristic was (and still
is) in many ways, a desirable quality in a legal system. Law must be
predictable. As the great Justice (and pragmatist) O.W. Holmes put it,
"...the very meaning of a line in the law is that you intentionally may go
as close to it as you can if you do not pass it." This would be an
impossible principle to adhere to if the line of the law were constantly
shifting back and forth at the whims of whatever some judge or jury thought
to be 'right'.
But the people had cried out (in unison, I suppose) for some flexibility
(some DYNAMICS, if you will), some way to argue that even though the
elements of some statute might literally apply to their situation, the
'intent' of the lawmaker who wrote the statute doesn't apply. That's the
legal of way of saying, "THIS ISN'T WHAT THEY MEANT!!!" And what developed
in response to this need was a King's Pardon. That is, if you felt you had
been wrongly convicted, or 'rightly' convicted of something that shouldn't
be a crime, you could petition the King and if he agreed, he could pardon
you unconditionally.
Now of course, in those days the only people who used the courts with
any frequency were noblemen (lords and ladies and the like). As England
evolved politically, and more and more people got rights and opportunities
to use the courts, it became a tad overwhelming for the king to personally
examine each and every claim of "unfairness" so he began appointing
Chancellors to attend to these matters in the King's name. Over time, the
Courts of Chancellery evolved into a full blown 2nd legal system--- The
Courts of Equity. The purpose of these courts was to 'fine tune' the laws
by carving out exceptions for cases that the legislatures hadn't considered,
but were covered by the statute nonetheless (these courts were famously
referred to as 'the King's Conscience').
And that's how it was for a long, long time (up until a few short
decades ago even in the US). There were Courts of Law which tried cases,
and Courts of Equity which tried the Courts of Law (there is more to the
distinction between the 2 kinds of courts, but that's enough for our
purposes). This dual system allowed for both predictability and justice in
the legal system. Today, in the US the Courts of Law and Equity have been
merged, federally and in (I believe) all fifty states. The powers of both
courts still exist (although they may not be exercised as often, or in the
ways, that we like).
So what does all this tell us about Bob Newland....
NEWLAND
"Bob Newland calls them his "horror stories," and they are
> coming in by the dozen-unconfirmed, one-sided, passionate.
> A quadriplegic writes of his conviction on drug charges for smoking a
> marijuana cigarette-the only relief, he says, for his violent tremors. A
> teenager writes of her conviction on assault charges for standing up to
local
> bullies. A mother writes of her son's two-year prison sentence for
violating a
> restraining order by putting a rose and a teddy bear in his former
> girlfriend's car."
RICK
I am not familiar with any of these cases (no specifics, names or
details are given) and there might be more to any of them. But I think
we're all familiar with cases like them. Conversely, I believe we're all
also well-aware of the flip-side of this situation. Like when a jury
'nullifies' and acquits an obviously guilty person for reasons that are
somewhat less than conscientious (see O.J. Simpson).
NEWLAND
>" His radical proposal to restore balance: Let juries determine not just
guilt
> or innocence, but whether the laws of the land are fair, and whether those
> laws should apply to any given defendant on any given day."
RICK
Juries are already empowered to decide whether the laws of the land
should apply to any given defendant on any given day. Juror nullification
is and always has been a unavoidable consequence of our legal structure.
While defense attorneys are forbidden from arguing juror nullifcation, it is
an option available to every jury simply because if they acquit, there's
nothing anyone can do about it (note that if they convict, a judge can
decide to let the defendant go anyway, but if they acquit, it's over and
there ain't nuthin the judge can do about it).
The other half of this proposal sounds ridiculous to me. Giving juries
the power to determine 'whether the laws of the land are fair' is to say
goodbye to law entirely. It would be to make every jury a legislature and
an appellate court onto itself. Jurors wouldnt just be free to disregard
the law, they'd be free to destroy it and rewrite it at will!
NEWLAND
> "The text of Amendment A sounds mild enough. If it passes, defendants in
> criminal cases would have the right "to argue the merits, validity and
> applicability of the law, including the sentencing laws."
NEWLAND
Remember, jurors are NOT elected officials. They are selected by
partisan advocates in a trial, for all kinds of purposes... Because they
look smart, they look dumb, they look like the defendant, they look like the
victim, they claim to be open-minded, they claim to be willing to follow the
law... etc. In most states, a certain number jurors can be removed from the
pool by the defendant without cause! Is this the 'noble jury' you want
deciding what the law should say?
NEWLAND
> "In practice, that means a drunk driver would be allowed to tell a jury:
Yes, I
> drove while intoxicated. But state law setting a 0.08% blood-alcohol
content
> limit is unfair. The federal government forced that standard down our
> lawmakers' throats. And in any case, it shouldn't apply to me, because
though
> I was legally drunk, I drove safely.
>
> Antiabortion activists could argue that the laws against threatening
clinics
> are invalid because it's everybody's moral duty to prevent abortions. Pot
> smokers could press for acquittal on the grounds that sentences for drug
> possession are too harsh. A batterer could claim that domestic violence
laws
> should not apply because the spouse was asking for trouble."
RICK
And we want all these crucial decisions made by 12 partisanly selected
citizens who weren't smart enough to figure out how to get out of jury duty?
It sounds like a nightmare.
NEWLAND
> In short, it would allow a defendant to argue that, although he broke the
law,
> he does not deserve to be prosecuted. "You should be allowed to tell a
jury:
> 'Yes, I committed these actions, but ... this is a stupid law,' " Newland
> said.
RICK
Thank the founders I have the freedom to tell Bob Newland... this is a
stupid idea.
The joke of it all is that these options all already exist. Courts have
EQUITABLE POWERS (of the kind I described above). Courts are free to
declare both substantive laws and sentencing laws unconstitutional (either
federally or in the state the court is situated in), they have the power to
interpret the law (carve out exemptions based on legislative intent and
public policy), they have power to do all of the things that Newland is
asking for... and they have the knowledge and experience to marshall those
powers. Of course, they are often used seldomly, but this is because our
laws were written by the people we ELECTED to represent us.
Judges are not elected. Juries are not elected. They don't represent
the people. If a defendant feels the law shouldn't cover his actions, he
can challenge the law in any number of forums on any number of grounds. If
he feels the sentence was too harsh, he can challenge it as cruel and
unusual, or challenge the sentencing laws themselves. If he thinks the law
should be changed he can petition his congressman or even run for office
himself.
Newland's ideas are colossally stupid because he ignores the reality
that even if they passed, there's absolutely no guaruntee they would ever
work for those who truly need them. Vicious murderers, rapists and thugs
might be able to convince a jury to 'nullify' or declare the law 'stupid'
while poor potheads and little girls standing up to bullies might just get a
harder headed jury. It would really just depend on the disposition of
whatever 12 people happened to be sitting in the jury box on that particular
day.
The answer is not to tear down the system (which Newland's amendment
would surely do). The answer is to make use of all the options the system
already offers.
rick
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