The Secret Power Of Juries

Canadians know that the jurors at a trial decide the defendant's guilt or innocence according to the law of the land. What they don't know is how far that right actually goes, and what the real power of juries is. Sometimes people -- even jurors -- wonder if a law or a judgment in a particular case is a just one. When the law seems wrong, we are told there is only one solution: change the law. In fact, though, in our legal system there is another remedy: When jurors decide that to question the fairness of applying the law in the case they are deciding may lead to a manifestly unfair and unjust result, they have the right not to apply that law. However, in Canada it is illegal and completely forbidden for a trial lawyer, or even a judge to tell jurors they have this right to nullify the law. In the Canadian justice system, jurors can hand down a verdict of not guilty even if the facts pointing to guilt are clear, even if the accused doesn't deny the facts, even if the judge tells the jurors to find the accused guilty. This centuries-old safeguard, which goes along with the principle of jury independence, has protected people's rights and freedoms and helped sweep away laws that ordinary citizens think are outdated and unjust. This power of juries is known to the legal community -- but is largely unknown by the general public -- until now. Gary Bauslaugh, author of Robert Latimer, A Story of Justice and Mercy (Lorimer, 2010), learned the specifics of this matter as a result of his research around the Robert Latimer case. In his new book, written for non-expert readers and citizens who have been summoned for jury duty, he tells the story of jury nullification from Quaker leader William Penn to the modern-day acquittal of Henry Morgentaler, who was charged with conducting abortions. Bauslaugh then lays out the arguments that some people make against jury independence and nullification, and makes his own argument in favour of these safeguards. He offers suggestions for jurors who may find themselves in a situation where their consciences are at odds with the law.

Juries have been at the center of some of the most emotionally charged moments of political life. At the same time, their capacity for legitimate decision making has been under scrutiny, because of events like the acquittal of George Zimmerman by a Florida jury for the shooting of Trayvon Martin and the decisions of several grand juries not to indict police officers for the killing of unarmed black men. Meanwhile, the overall use of juries has also declined in recent years, with most cases settled or resolved by plea bargain. With Radical Enfranchisement in the Jury Room and Public Life, Sonali Chakravarti offers a full-throated defense of juries as a democratic institution. She argues that juries provide an important site for democratic action by citizens and that their use should be revived. The jury, Chakravarti argues, could be a forward-looking institution that nurtures the best democratic instincts of citizens, but this requires a change in civic education regarding the skills that should be cultivated in jurors before and through the process of a trial. Being a juror, perhaps counterintuitively, can guide citizens in how to be thoughtful rule-breakers by changing their relationship to their own perceptions and biases and by making options for collective action salient, but they must be better prepared and instructed along the way.

Drawing on his personal fascinating story as a prosecutor, a defendant, and an observer of the legal process, Paul Butler offers a sharp and engaging critique of our criminal justice system. He argues against discriminatory drug laws and excessive police power and shows how our policy of mass incarceration erodes communities and perpetuates crime. Controversially, he supports jury nullification—or voting “not guilty” out of principle—as a way for everyday people to take a stand against unfair laws, and he joins with the “Stop Snitching” movement, arguing that the reliance on informants leads to shoddy police work and distrust within communities. Butler offers instead a “hip hop theory of justice,” parsing the messages about crime and punishment found in urban music and culture. Butler’s argument is powerful, edgy, and incisive.

The Founding Fathers guaranteed trial by jury three times in the Constitution—more than any other right—since juries can serve as the final check on government’s power to enforce unjust, immoral, or oppressive laws. But in America today, how independent c

Open and accountable government is one of the bedrock principles of our democracy. Yet, virtually since inauguration day, questions have been raised about the Bush Administration's commitment to this principle. News articles and reports by independent groups over the last four years have identified a growing series of instances where the Administration has sought to operate without public or congressional scrutiny. At the request of Rep. Henry A Waxman, this report is a comprehensive examination of secrecy in the Bush Administration. It analyses how the Administration has implemented each of our nation's major open government laws. The report finds that there has been a consistent pattern in the Administration's actions: laws that are designed to promote public access to information have been undermined, while laws that authorise the government to withhold information or to operate in secret have repeatedly been expanded. The cumulative result is an unprecedented assault on the principle of open government.

In The Sense of Justice, distinguished legal author Markus Dirk Dubber undertakes a critical analysis of the “sense of justice”: an overused, yet curiously understudied, concept in modern legal and political discourse. Courts cite it, scholars measure it, presidential candidates prize it, eulogists praise it, criminals lack it, and commentators bemoan its loss in times of war. But what is it? Often, the sense of justice is dismissed as little more than an emotional impulse that is out of place in a criminal justice system based on abstract legal and political norms equally applied to all. Dubber argues against simple categorization of the sense of justice. Drawing on recent work in moral philosophy, political theory, and linguistics, Dubber defines the sense of justice in terms of empathy—the emotional capacity that makes law possible by giving us vicarious access to the experiences of others. From there, he explores the way it is invoked, considered, and used in the American criminal justice system. He argues that this sense is more than an irrational emotional impulse but a valuable legal tool that should be properly used and understood.