In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice



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Introduction

Hi all,
This is Premier’s first brief of the 2015-2016 season on the topic “In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.”


Not everyone has the resources to pay for briefs, and this brief is one important way to level the playing field. If you use these briefs please help us and direct other debaters to PremierDebate.com/Briefs. The more people that are aware of the service, the more likely it gets to those who need it most.
We’ve gotten a lot of great feedback on our free briefs, and while we can’t make them any freer, we can make them better. Please, let us know what you think! Comment on Premier.Today and talk to us about what you’d like to see in the future.
We want to remind the readers about standard brief practice to get the most out of this file. Best practice for brief use is to use it as a guide for further research. Find the articles and citations and cut them for your own personal knowledge. You’ll find even better cards that way. If you want to use the evidence in here in a pinch, at the very least, you should re-tag and highlight the evidence yourself so you know exactly what it says and how you’re going to use it. Remember, briefs can be a tremendous resource but you need to familiarize yourself with the underlying material first.
As far as content is concerned, we have a good number of cards to start off the season. All of them are from post-2000 – don’t go into round reading decades-old stuff! The law is constantly evolving, and your research should reflect that. This topic will likely see frequent solvency debates about the efficacy of jury nullification laws. There are a number of different mechanisms for the aff to choose to develop different plans and the negative to pivot with different counterplans. One large area of scholarship surrounds race-based jury nullification, and we expect to see many kritik arguments on both sides about race and the prison-industrial complex. If you have any specific questions about the brief or the topic, post on the site and we’ll get back to you personally.
Good luck everyone. See you ‘round!
Bob Overing & John Scoggin

Directors | Premier Debate


Table of Contents

Contents


Introduction 1

Table of Contents 2

Affirmative 4

Mechanisms 5

Butler, Race-based Nullification 6

Instruction of Nullification 10

Right to Determine Damages 11

Morals 12

Constitution 13

Defy the Law – Freedom 15

Function of a Jury 16

Public Discourse 18

Virtues 19

AT Rule of Law 20

Advantage Areas 22

Death Penalty 23

Democracy 26

Diverse Perspectives 28

Drugs 29

Domestic Violence 30

Faith in Law 31

Minorities in Democracy 32

Prisons 33

Racism 34

Spillover to Civil? 37

Inherency 38

General 39

Sparf Decision 41

Status Quo Promise Questions 42

Three Options 43

Solvency 44

Examples 45

Generic 46

History – Prohibition 47

History – Slavery 48

No Reasons 49

Sunspot 50

Blocks 51

AT Arbitrariness 52

AT Backlash 53

AT Backlash/Dismissal 54

AT Certainty DA / Knowing the Laws 55

AT DAs 56

AT Jurors Dumb or Ignorant 57

AT Jurors Racist 58

AT Race K 59

AT Slippery Slope w/ Minority Groups 61

AT Slippery Slope (General) 62

AT Tea Party DA 63

AT Unconstitutional 64

AT Wrongful Convictions 65

Negative 66

AT Advantage Areas 67

AT Death Penalty 68

AT Democracy 69

AT Labor/Unions 70

AT Racism 71

AT Solvency 72

Backlash 73

Bias / Bad Outcomes 75

Constitution 76

Milgram 78

No Solvo 79

Status Quo Solves 80

AT Spectacle / One-Case Affirmatives 81

AT Mechanisms 82

AT Butler, Race-based Nullification 83

AT Damage Determinations 89

AT Judge Discretion 90

AT Limine 91

Counterplans 92

Black Community-building 93

Fact-finding Only 94

Reasoned Verdicts 95

Disadvantages 96

Uniqueness 97

Kritik 98

Cap K 99


Race K 100

Morals 101

Not a Right 102

Promises 103

Rule of Law 104



Affirmative


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Mechanisms



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Butler, Race-based Nullification

Butler advocates jury nullification by black jurors of non-violent black defendants – the proposal in of itself proclaims the racism inherent in the criminal justice system and is a method of black self-help


Berry and Molina-Moore 13

Floyd and Tammy, profs @ Texas A&M University-Central Texas, “Identifying Obstacles to Real Justice: An Ethical Critique of Race-Based Jury Nullification,” Journal of Intercultural Disciplines [Premier, Premier Debate Today, Sign-Up Now]


Jury nullification, when exercised by black jurors, gives them the power they need to protest the racial bias of the criminal justice system and to proclaim the "hidden message" embedded within that system: that race is a factor in criminal justice proceedings and in its products, regardless of practitioners' unwillingness to admit it. To counteract this bias, Butler proposes that race should be the sole factor in jury deliberations, regardless of the facts of the cases, at least for black jurors and black defendants accused of certain crimes. The exercise of this power of the jury, the power to nullify the law, may be viewed as a form of black self-help. Butler reasons that when black males are incarcerated, the black community suffers from their absences and that it makes more sense to return the accused to the community where they can fulfill their roles of kinship, marriage, and work.

Plans good in this context


Berry and Molina-Moore 13

Floyd and Tammy, profs @ Texas A&M University-Central Texas, “Identifying Obstacles to Real Justice: An Ethical Critique of Race-Based Jury Nullification,” Journal of Intercultural Disciplines [Premier, Premier Debate Today, Sign-Up Now]


Although this essay will not examine whether Butler has correctly specified the conditions of the present-day criminal justice system (the 91 Status Quo), it may be instructive to note that for anyone who wishes to effect remarkable changes in policies, procedures, or laws, that innovator must be aware of precisely what it is that he wishes to change. This comment appears to be self-evident: if one's evaluation of something is substantially inadequate, then his motivation for change is unjustified and his proposal is ill-directed. By a similar line of reasoning, if one has not adequately specified the ultimate goal (Real Justice) for which he is laboring, then one is uncertain at what point that his labors should cease. For purposes of the present essay, neither Butler's characterization of the Status Quo nor Real Justice will be contested. What is of more than academic interest is whether Butler's Subversion program is likely to be successful. The principles of utilitarian theory, couched within a general conflict theory perspective, will provide the means to assess the likelihood of success.

Immediate impacts over long-term impacts in this context


Berry and Molina-Moore 13

Floyd and Tammy, profs @ Texas A&M University-Central Texas, “Identifying Obstacles to Real Justice: An Ethical Critique of Race-Based Jury Nullification,” Journal of Intercultural Disciplines [Premier, Premier Debate Today, Sign-Up Now]


The factor of propinquity is related to the epistemic problem. It is an axiom that the probability of success in any venture will decrease as the temporal distance between an act and its consequence increases. This makes sense because one may be unable to control events that appear after an act that could also have causal impact on the consequence. There is a better likelihood of success for any proposed action for immediate, rather than remote, consequences (Breakey, 2009). Thus, in referring to Figure 1 above, the probability of success of Real Justice at T3 is more uncertain than the probability of success in bringing about Subversion at T2 (jury nullification).

Util is an appropriate moral theory in the context of civil disobedience


Berry and Molina-Moore 13

Floyd and Tammy, profs @ Texas A&M University-Central Texas, “Identifying Obstacles to Real Justice: An Ethical Critique of Race-Based Jury Nullification,” Journal of Intercultural Disciplines [Premier, Premier Debate Today, Sign-Up Now]


The modern concept and practice of civil disobedience emerged in the 19th and 20th centuries, in the writings and practices of Thoreau, Gandhi, Russell, and King (Bedau, 1991b; Thoreau, 2003; King, 1991). Civil disobedience is for the purpose of frustrating or protesting an unjust law, policy, or application of the law. To qualify as civil disobedience, the act needs to be (1) illegal, (2) performed publicly, (3) non-violent, (4) conscientiously performed, and (5) with a willingness to suffer the penalty for its performance (Bedau, 1991a). Rawls would add (6) that its aim is to bring about a change in the law or policy, and (7) that it is not to be performed solely for the benefit of one person or for a particular group of people (Rawls, 1971). Macauley (2005) would insist that Rawls' sixth ingredient (to bring about change) include (8) a reasonable possibility of success in bringing about the change. There appears to be an essential consequentialist dimension in the concept and practice of civil disobedience, a feature which may allow one to tap into utilitarian ethical theory for purposes of analysis. For example, if one wishes to engage in civil disobedience, the very nature of an act that is illegal, then he must justify the performance of the act to some end. Mere frustration of the law or policy is insufficient for justification: there must be a reasonable expectation of the law or policy changing in the desired direction. Cost-benefit analyses of competing alternatives of actions and probabilities of success must be undertaken ex ante, and Benthamite principles of certainty, propinquity, and extent become highly relevant for such tasks (Bentham, 1988).

Explanation of Butler’s position


Berry and Molina-Moore 13

Floyd and Tammy, profs @ Texas A&M University-Central Texas, “Identifying Obstacles to Real Justice: An Ethical Critique of Race-Based Jury Nullification,” Journal of Intercultural Disciplines [Premier, Premier Debate Today, Sign-Up Now]


Although Butler has described a three-tier framework for juror decision making in very general terms, it may be instructive to state his rules for jury acquittals in specific terms, following his revisions to standard practice: Conventional Rule 1 (the common rule): If you are a juror, then you must acquit if the prosecution has failed to prove its case. Revised Rule 1 (for blacks only): If you are a black juror, follow Conventional Rule 1 if the defendant is non-black. Conventional Rule 2 (the doctrine of jury nullification): If you are a juror, then you must acquit if the law is unjust or being unjustly applied. Revised Rule 2 (for blacks only): If you are a black juror, follow Conventional Rule 2 if the defendant is non-black. Revised Rule 3 (for blacks only): If you are a black juror, then you must acquit if the defendant is black, and if the defendant is accused of the victimless crime of drug possession or of some other victimless crime that has not been specified. Revised Rule 4 (for blacks only): If you are a black juror, then you have the option of acquitting if the defendant is black, and if the defendant is accused of being a ghetto drug dealer (a non-violent crime). In order to make the right decision, one must examine the facts of the case, such as type of drug, ages of buyers, whether the drug was marketed, whether it is a first offense, whether one believes that the drug dealer could reform, and whether racial disparities exist in prison for ghetto drug dealing. Revised Rule 5 (for blacks only): If you are a black juror, then you have the option of acquitting if the defendant is black, and if the defendant is accused of burglarizing the home of a rich white family, and if he was stealing to support a drug habit. Revised Rule 6 (for blacks only): If you are a black juror, then you have the option of acquitting if the defendant is black, and if the defendant is accused of any property crime, and if the victim is rich and white. (Butler's justification for Revised Rule 6 is that if the rich cannot rely on the law for protection, then they may be motivated to change the conditions under which blacks become property offenders.)

It’s subjectively moral to do the aff even if there are downsides – individuals have to believe the ends justify the means in this case


Berry and Molina-Moore 13

Floyd and Tammy, profs @ Texas A&M University-Central Texas, “Identifying Obstacles to Real Justice: An Ethical Critique of Race-Based Jury Nullification,” Journal of Intercultural Disciplines [Premier, Premier Debate Today, Sign-Up Now]


Generally speaking, it is true in consequentialist ethics that the ends in a given situation may justify the means used to bring it about. Along these lines, Butler may be applying consequentialist ethics to the problem at hand, but one must recall that the ultimate end for Butler's proposal is not to educate jurors, but to bring about Real Justice, which end is indeterminately remote in time from juror education regarding nullification. Thus the subversive event at T2 is necessarily linked to certain antecedents, one of which is juror education, and the consequences of this antecedent event have neither been fully identified nor described. In the figure above, flyer dispersals as one of several methods used to inform or educate would-be jurors of their power to nullify is designated T I a.

Aff solves White privilege in the CJS


Collins-Chobanian 09

Shari, phd in philosophy, prof @ ASU, “Analysis of Paul Butler's Race-Based Jury Nullification and His Call to Black Jurors and the African American Community” Journal of Back Studies 39.4, 2009, [Premier, Premier Debate Today, Sign-Up Now]


Butler falls most closely in the radical critique and wants African Americans to use the power they have now to redress the system, in part by encouraging Black jurors to refuse to convict Blacks guilty of nonviolent crimes. Butler argues that jury nullification is similar to civil disobedience but lawful. He asks, “Why should the Black juror not be color-conscious when the entire system is color-conscious?” The White privilege that perpetuates this systematic discrimination is inconsistent and via disparate treatment illegal. Butler’s race-based nullification is a principled call requiring that jurors be moved by the injustice of the disparate treatment of African Americans under the law.

Solvency advocate for non-violent offenders, not just victimless crimes


Collins-Chobanian 09

Shari, phd in philosophy, prof @ ASU, “Analysis of Paul Butler's Race-Based Jury Nullification and His Call to Black Jurors and the African American Community” Journal of Back Studies 39.4, 2009, [Premier, Premier Debate Today, Sign-Up Now]


Butler (1995) assumes that drug crimes are victimless and cites literature to that end. I will address the issue of victimless crimes below, although I do not find it to be the crucial dividing line of Butler’s argument but rather find the issue of violence to be critical. For example, when a drug crime turns violent, Butler no longer considers the defendant a candidate for nullification as the further risk(s) of (violent) harm to the community outweighs other concerns. Thus, the crucial issue in a drug crime is not its victim(s) but the presence or absence of violence associated with the crime.

Instruction of Nullification




Instructions on correct nullification reduces racial motivations – avoids the DAs and solvency presses


Conrad 14

Conrad, Clay S, author and attorney, Jury Nullification: The Evolution of a Doctrine, published by Cato Institute, 2014 edition, originally published 1998, ProQuest. [Premier, Premier Debate Today, Sign-Up Now]


The court noted with some prescience that the nullification powers of the jury “would be less likely to be wrongly exercised . . . when it was conceded . . .” Later case history alleging racially-motivated and biased jury nullification involved jurors who had not been informed about their right to nullify the law. While it has not been established that jury nullification was prevalent in those cases, it is likely that appropriate instructions would have reduced whatever racially-motivated nullification was involved. Courts anticipate that proper jury instructions will lead to increasingly responsible behavior on the part of juries. Justice Redfield understood that proper instructions would help guide jurors to exercise their nullification powers more responsibly as well.

Right to Determine Damages

Juries can determine life or death but not damages, which is a bizarre inconsistency in the law


Brooks 04

Thom, prof of law and gov’t @ Durham, “A Defence of Jury Nullification,” Res Publica 10, 2004, [Premier, Premier Debate Today, Sign-Up Now]


Some legal theorists, such as Paul Mogin, argue that only judges should set any punitive damages.91 It is true that the jury’s determination of punitive, as opposed to purely monetary, damages has been less of a problem.92 It is a curiosity, though, that juries have been thought to be best suited to the task of determining the most severe penalty, capital punishment. Nevertheless, those who argue that only judges should set punitive damages point to the use of bifurcation in capital trials, but neglect the central role of the jury in determining the ‘damages’, namely, whether or not there should be an acquittal, a life sentence, or a death sentence. In Ring v Arizona, 93 the Court argued that the right to trial by jury was a right of defendants to have their punishment decided by a jury, rather than by the judge, at the original trial.94 The Court has said: ‘[w]e cannot believe that it is wise or expedient to place the life or liberty of any person accused of crime, even by his own consent, at the disposal of any one man ... so long as man is a fallible being’.95 If the Court is justified in holding such a view, it seems rather strange that we should trust only juries to impose the most extreme punishment in American law, yet not trust them with penalties far less severe than the life and death of an individual. This difficulty needs to be addressed before we end the jury’s right to determine damages. However, first there should be an attempt to draw up guidelines on compensation for juries to consider when determining monetary damages.


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