Thoughts on The Ascent of the Administrative State and the Demise of Mercy

I was browsing the Fully-Informed Jury Association's website and spied a new article posting (see title). I admit, I wasn't totally prepared for a 34-page essay, but I settled in with the last of the bottle of shiraz from Trader Joe's and got to reading.

I'm going to add a little something to this: exposure. The more the populace is aware of the option to use this inviolable right, the more it may be feasibly exercised, driving a stake into the heart of State corruption, one mallet-stroke at a time. While FIJA can provide more astute observations on the practice thereof, this essay (and hopefully the commentary) more clearly outlines the philosophy behind the practice.

Without further eloquence, the salient points au jus:

The birth of administrative agencies posed a dilemma for traditional constitutional and legal analysis. These agencies challenge the nation’s commitment to separation of powers by combining executive, legislative, and judicial power under one roof. Moreover, the scope of agencies’ authority is vast; their decisions have profound consequences for the nation’s economy and for individual rights and liberties. The puzzle for the law has been how to keep this potential Leviathan in check. If the officials at these agencies could exercise their authority without oversight, citizens would become subjects to unelected bureaucrats and democracy would be compromised. (Page 5)

Anyone in the Peoples' Republic of Kalifornia with a political pulse, intact short-term memory and a grade-school education should be able to share in a "moment of clarity" regarding the Public Utilities Commission and their "Flex Your Power" (rolling blackouts in sheeps' clothing) and the Coastal Commission's arbitrary binding edicts regarding property rights in non-coastal areas. I didn't vote for them, and neither did you. And there's still forty-nine states to choose from, not including the federal bureaucracies. Indeed, it's difficult to tell when one is breaking the law in this country, and that's no accident. To the point:

Jury nullification occurs when a jury votes to acquit a defendant despite the fact that the defendant is guilty under the letter of the law. A jury may opt to nullify because it believes the law is generally unfair or unjust, because it believes applying the law in the particular case would be unfair or unjust, or because it believes the punishment is too harsh. The jury’s power to nullify stems from the fact that it does not need to give a reason for its decision and its vote of acquittal is unreviewable. (Page 9)

It's that simple. If the law is unjust, then the authority of that governing body is null and void; hence, you cannot be guilty, and thus must be acquitted of wrongdoing. And it applies for any modifiers of a law as well: mandatory minimum sentencing, for example... Something that prosecutors may decline to mention during the trial for fear of losing emotional momentum.

That said, is it any wonder that the legal machine hates the very notion that the entire courtroom chessboard may, on a very mild amount of effort, be tossed aside? "An Army of One" has never been a more apt description.

However:

In 1895, shortly after the birth of the first major federal agency, the Supreme Court held in Sparf v. United States that juries do not have a right to ignore a court’s instructions on the law. (Page 10)

Juries do not have the right to ignore the court's instruction, but even under the consideration of the facts, the law may yet be deemed unjust. Founding Father Samuel Adams and First Chief Justice John Jay will back me up on this, and while their opinion may not stand as legal precedent, Sparf v. United States does not implicitly or explicitly deny the right to nullify, and rightly so, considering its common-law origins... But don't tell that to the revisionists:

Recently, courts have permitted the removal of a juror during deliberations when the juror has a different view of the law than the judge. Indeed, in extreme cases, jurors who fail to follow a judge’s instructions during deliberations have been prosecuted for contempt. Judges have also pursued charges of contempt, obstruction, or tampering against individuals who have attempted to inform prospective jurors that they have the right to nullify. In addition, courts have rejected attempts to inform juries about the sentencing consequences of their decisions for fear that jurors might use that information to engage in compromise verdicts or base their decision on anything other than their findings of fact.(Page 12)(Emphasis is mine.)

"Fact" in the courtroom deserves the dubiousness of double-quotes, at the very least. With the advent of the various state-sponsored "Wars on (Flavor of the Week)", facts often get thrown out in favor of speedy convictions, the accused accept plea-bargains to hedge against dire sentencing, and the innocent are victims of out-and-out railroading for being nothing more than easy targets. (Check out Radley Balko and his site for more in-depth information.)

The final word: we the people, or as it says in the manual, The People, have the prerogative, the right, and the duty to nullify unjust laws by means of a jury.

The full article is definitely worth the read, as it also outlines the use of pardons and the willingness of prosecutors to not press charges. (This part is very short, understandably, as it is notedly against their interests not to.)

God willing, we may yet someday see this nonsense of "family courts" subject to jury trials. I suspect that it might even initiate some greater degree of community involvement, although that may be a mixed blessing.