This article originally appeared at The American Conservative on October 23, 2017.
“Do you mean to tell me, that if there was a law against state attorneys using blue pens and you found incontrovertible evidence that I was using blue pens, you could not follow the law and render a guilty verdict based on the evidence alone?” A few years ago, I found myself sitting in a jury booth as a prosecutor questioned me.
The air sucked out of the courtroom as its assembled human beings—including other prospective jurists, a judge, and a defendant—waited for my answer.
“No,” I replied.
“Why would I put a human being in a cage for using a blue pen? That is a nonviolent act and there is no victim, so why would I forcibly confine someone for that?” I continued.
I heard a couple quiet gasps break the tight silence.
“Ok, thank you very much,” the state attorney concluded.
Shockingly, I was not chosen to sit on the jury.
I remember thinking to myself, “What Twilight Zone creep show is this? How do these perfectly normal and nice people raise families with this kind of thinking?”
I saw the heart of the state’s logic laid bare before my eyes. If the state authority says something is illegal, who are we to say no. It is shocking, in the eyes of ordinary citizens, for a person to say, “No, if a law outlaws blue pens, I will not lock someone inside a human cage to punish their disobedience.”
What I was staring at was the bystander effect writ large as ritual. A little crowd was gathered—12 randomly selected “peers” who did not know the defendant from Adam. The 13th person—the unlucky number of deadly lot casting rites of old—was the defendant. The judge performed the role of transcendent moral overseer. The prosecutor’s job was to prove the accusation of the collective correct. The defense was relegated to the scope of disproving it based on evidence and testimony.
No one was given the role of moral conscience advocate. If one was given such a role—to question the morality of using violence against nonviolent actions—it would turn the lights on during this theatrical drama. It would break the suspension of disbelief that individual persons would normally have when considering such a spectacle.
Of course, the jury members who are eventually selected are more than just bystanders. They actually go along with rendering a “guilty” or “not guilty” verdict based on the persuasiveness of the prosecutor’s performance. But the whole affair is rather convenient for the state: The members are first congratulated for their service as special keepers of the flame of civic order and then carefully reminded to only judge the case based on the facts and evidence presented. Nothing else.
As individual human beings, none of these jury members have any real say in the laws that are being enforced. Not one of them are one of the billion dollar lobbying factions that create an impenetrable wall around the members only club that is legislative bodies and state executives. The state does not really care about them as individual human persons. They are there to serve a ritual function. A symbolic, representative little slice of the populace—impatient, bored, inconvenienced, intimidated, awe-struck, vindictive, or a little bit of all of the above.
But one thing most jurists are not is aware. They are not aware of the lawful intention of the creation of the jury system as a check on collective oppression against the individual. They are not aware of their power to “just say no” to the easy catharsis of going along with a collective attack against a nonviolent misfit. They are not aware of the violence, alienation, and resentment that is escalated by laws against nonviolent actions.
They are shielded from the dirty business of the consequences of their actions. None of the jurists are responsible for barging down the home of the accused with arms drawn. They do not see the dogs shot on accident. They do not see the bodies twisting in electrical convulsions from tasers after a wrong gesture. They are not responsible for changing the clothes of those electrocuted or dog piled with knees on their necks.
They get to wash their hands clean through this ritual. They get to blindly go along and check their human empathy, spiritual life, and decency at the door of the courthouse. The ritual does its job of morally desensitizing power that thrives on violence against nonviolent human life.
None of the jurists have to shackle the nonviolent person. None of them have to lead the sentenced down the hallway to their cell. None of the jurists have to slam the steel doors shut. Or keep the barb wire sharp and high. Or man the watch towers with guns loaded. Or keep the now numbered property of the state confined to a cage as gangs of dehumanized violent persons predate and threaten this forgotten human being.
They just get to go back to their little cubicles. Happy to be out of such an inconvenience or filled with the self-righteous satisfaction of executing justice.
Talk about an effective lie.
Our system obfuscates violence into a moral tragedy of the commons: everyone rightly feels victimized by some aspect of government but cannot see their own complicity with that same systemic victimization through jury execution of laws against nonviolent persons.
At the time of the jury selection, I was not as well-versed in understanding how state prosecutors ask questions that screen out people such as myself, people that follow the footsteps of the jury system’s founders like Thomas Jefferson in understanding the individual’s responsibility to judge the moral character of the law through the peer-review system of jury trials. Even Jefferson’s arch-rival John Adams wrote in his diary of the jurist, “It is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
If one were to ask how to properly operate a Model T, it would be smart to consult the operating manual drafted by Henry Ford. However, for some reason, it does not seem to apply to the operation of the jury system of law in the United States. Juries are largely shielded from considering the legal system Founders’ own operating manuals for how juries are a tool to check the snowballing power of immoral laws that use violence against nonviolent persons.
I understand most people are still ignorant of the powerful responsibility they actually have to judge the morality of laws against nonviolent persons.
But perhaps we could make them informed. Perhaps, in the digital age’s democratization of voices, we should channel the growing cultural appetite for defending victims into an area where it could be dramatically fruitful: starting a cascade of jury verdicts that set nonviolent persons free, regardless of the crime. Perhaps the only answer to an out-of-control empire are informed juries that draw lines in the sand through nullification.
If a person is not accused of theft, fraud, harming a minor, or physical violence, there is no place for them in a cell. If we show our neighbors this truth, perhaps we will turn the lights on to the ridiculous tragic comedy of state laws against nonviolent persons.