I read this morning's newspapers with more than the usual fascination. The sight of protestors on the streets of Egypt thrills me, even though I do not know what comes next. Reports of economic despair, a lack of social mobility and opportunity, and a regime out of touch with the demands of ordinary people are explanation enough for the unreast. I am not yet prepared to call this a revolution. Nothing has changed yet. Repressive measures can still crush this popular uprising. Indeed, the voice of those who want security above all are already to be heard. Vigilantes roam the streets. Violence is in the air.
I envy the good people of Egypt their sense of being fully alive to life's possibilities. For a moment, they've bucked against the chutes of the abbatoir they call home. For a moment, President Hosni Mubarek knows fears. For a moment, the center does not hold and the nation's elite realizes that the foundation of their affuence is a dream not all people share.
It is a day to praise the joy of anarchy, I say. A fresh wind blows through the Middle East. There is unrest in Tunisia and Yemen. Autocrats everywhere check to be sure the bolts on their doors are fastened. I wonder whether this flicker of rage can leap oceans and continents and alight here in the United States. A little anarchy is good for the soul, I say. We've become far too accustomed to dancing in lockstep in this the land of the free.
I thought about Egypt while listening to Connecticut Superior Court Judge Robert Devlin speak at a conference at Quinnipiac University's School of Law last week. The topic was whether juries should be told of the sentencing consequences of their verdicts.
Under Connecticut law, jurors are told that their job, except in capital cases, is confined to finding whether a defendant is guilty or not guilty of the offense charged. The eventual sentence to be imposed in the event of a guilty verdict is left entirely to the judge. Not all states behave in this manner. Some permit juries to make sentencing recommendations. Would permitting jurors to know what the consequence of a guilty verdict will be have an impact on their fact-finding role?, Judge Devlin wondered.
Connecticut is not among the handful of states that permit jury nullification. Jurors here take an oath to follow the law, regardless of where the law leads. Depriving them of insight into the consequences of their decisions is believed to promote more reliable verdicts, as jurors avoid letting consequentialist concerns infect their evaluation of the facts. Judge Devlin wondered whether permitting juries to know about sentencing would encourage them to disregard the law in cases where the penalty was considered to be too harsh. He counseled that nullification can be a tool used for good or ill: yes, a jury can disregard a law to set a man free when the law is unjust or unfair, but it can also set free a killer when a community silently condones the violence, as was frequently the case in the South in the 1960s. Nullification is dangerous, he warned. It can contribute to a sense of lawlessness.
Perhaps. But on balance, I would prefer a little lawlessness now and again to a system then operates on the basis of moral schizophrenia. When we permit lawmakers to set penalties and define crimes without ever requiring them to set foot in a courtroom, lawmakers are not forced to face the consequences of their decisions. When we permit prosecutors to enforce rules made by others and empower them with the right to charge or not, as they see fit, we give them a power to detroy without real accountability to the community on whose benefit they pretend to act. When lawmaker, prosecutor and judge choreograph a criminal justice system that deprives the community of any chance to assess and evaluate what is being done in the name of justice, we don't really get justice at all.
The great argument of the complacent against radical change is that the devil we know is better than the devil we have yet to meet. Change is risk. Empowering people is dangerous. What alternative to the status quo for Egyptian protestors propose? What about the danger of nullification in our courtrooms? What unintended consequences will flow from letting jurors decide the facts and the law of a case?
There are risks. The Middle East may devlove into a new and more brutal round of authoritarianism. A nullifying jury might just cause harm. Somehow, I welcome the risk of uncertainty as far more bracing than the dead hand of business as usual. A little anarchism, I say again, is good for the soul. We forget at our peril that the state is a fiction, justice a dream and the status quo is always the best friend of those whose snouts are most deeply buried in today's trough.
They're trying to pour new wine into old skins in Egypt today. I envy them the fight, even as I shudder over what tomorrow might bring. The people are speaking in Egypt today. Would that we had the courage to permit them to speak in our courtrooms.