Asking Why? Then Nullify
When you lose a job and fall behind on your mortgage payment you get a foreclosure notice. It might not matter that the bank seeking to take your house cannot prove it actually owns the home, the courts will find a way to protect big money. Little people get hammered and the government protects itself and the big money boys and girls paying for the political campaigns.
Government and bankers are too big to fail, you see. You, on the other hand, are expendable.
So what to make of the debt-ceiling standoff in Washington? Our political leaders cannot agree on how to pay their bills. The result could well be another economic slowdown as credit-rating agency downgrade their ratings for government bonds, thus driving interest rates up. While Congress and the President dicker and dither, you get screwed -- again. You on the other hand, must pay your bills or become homeless.
Did someone say third party? Good luck: beware the power of any mob, no matter who noble its goals. Every pack needs leaders, and, once a leader, then pity the poor followers.
Forgive me if the polling place looks like a tepid place to seek change. By the time a politician runs the gauntlet of what it takes to get elected, the audacity of hope is transformed into a mere despondent sigh. I’ve voted for Clarence Darrow the last couple of times I voted in my congressional district. Sure, he’s dead. But that makes him different than the incumbent, Democrat Rosa DeLauro, in what manner? As for the GOP, John Boehner looks like little more than a sociopath, strutting and pimp-walking his way in and out of the White House. He’s the political version of Norway’s Anders Behring Breivik, starring in his own twisted apocalypse.
There is still one place where ordinary Americans can be heard without their voices being diluted by the campaign contributions of the wealthy and the blandishments of talking heads on the right and left demonizing one another: the jury room. It is the one and only time ordinary Americans come face to face with what government does, not what it says it is doing, or promises to do. Why not make jury duty a rolling referendum?
I have come full circle on the matter of jury nullification. For years, I opposed the practice, assuming that that rule of law was best served by tethering jurors to rules crafted in the Legislature and the Courts. As judges say during voir dire, or jury selection, if the trial court judge errs, an appellate court can always correct the error, but only if jurors promise to follow the law. Keeping all parties on the same page in terms of the rules of procedure, evidence and substantive law assures something like transparency, right?
I suppose it does so long as those who make the rules, lawmakers and judges, are regarded as legitimate authorities. Deprive judges and lawmakers of a sense of legitimacy and the rule of law is mere white noise. There is a crisis of legitimacy brewing in this country. There are now many different Americas. No dream unites them all in a vision of a society good enough, with sufficient enough means, to create a shared sense that we are all in this together. Increasingly, politics and popular culture fosters a sense that it’s every man and woman for themselves. Did someone say a return to the state of nature? If so, then the social contract needs to be re-crafted.
But old forms don’t die overnight. We tap dance to the same old tune, whistling as we pass the graveyard of yesteryear’s hopes. We vote, although we’re not sure why. We are summoned to jury duty to decide cases according to law, often without much conviction that the law makes sense. We still sing about independence and cherish the hope that the American Dream is not yet dead, a new relic for the history books.
If there is a sense of spiritual and intellectual collapse all about us, that does not mean that our institutions will simply topple. Inertia is the engine of history. We can stumble along without real convictions for a long, long time, so long as things work well enough. It’s when things stop working that change occurs, and often that change is not the result of broad transformations in a society’s ideals, it is the result of changing practices, changing ways of doing ordinary things. Jury rooms can become a place where ordinary Americans tell the government the status quo no longer works.
So here’s my hope: Jury nullification becomes the norm. Jurors simply say to the government: Oh, really? Let the prosecution huff, and puff, and threaten to blow the house of anyone down. Unless jurors play along, all that huffing and puffing is mere flatulence. What if jurors were to say to the government: Get your priorities straight. Why are we all hot and bothered about congressional sex scandals? Does anyone care who Oregon’s David Wu bedded, or about Anthony Weiner’s Twittering lust? I don’t. I care about a forgotten middle class, a meaningless national stand off between self-styled right and left, both vicious and out of touch with the reality of foreclosure, and a sense that prison is the new plantation. Fox news versus CNN isn’t a debate: it’s a game of charades by members of the chattering class with too much time on their hands.
Nullification now, I say. Yes, we need judges to decide rules of evidence and procedure. But as the the law defining crimes and just how the government prods people along, leave that to the people. Let juries count as voices of the community. Since professional politicians no longer know how to listen, it is one of the last places left in which ordinary Americans can be heard without resorting to violence.