The Case for Race-Based Jury Nullification

Should a juror be allowed to return a non-guilty verdict even if s/he is convinced that the defendant is guilty of the crime in question?

Such a move is called jury nullification. It may be a misleading term for it implies a nullification of the law. Not quite. The Fourteenth Amendment guarantees all persons due process and equal protection of the laws, and this has been applied to also mean that any person charged with a crime is afforded a jury of her or his peers.

George Washington Law professor Paul Butler argues that in some cases, the race of a black defendant is a “legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or for an individual juror to consider in refusing to vote for conviction.” He reached this conclusion while working at the U.S. Attorney’s office, and recounted a particular experience in his book, Let’s Get Free: A Hip-Hop Theory of Justice, where Butler admits that he was arrested, charged, and went to trial for simple assault in D.C. Superior Court, and how a D.C. cop took the stand and lied. Thankfully, the jury acquitted him of charges. That’s how Butler observed that sometimes, a black juror would not send another black man to jail even when the “evidence” was stacked against the defendant.

It’s certainly a controversial opinion that has many critics, especially those who claim that such an approach is disrespectful to the letter of the law. But laws are not made and applied in isolation of human experience and conscience. If all the jury had to do was apply the rule of law based on the facts, then criminal justice could be done through computers with input and outputs to fulfill the function of a “fair and impartial” jury. The framers of the Constitution considered jury nullification by law to be one of the defenses against government encroachment on individual liberty. By a logical extension, there is nothing wrong with allowing African-American and Latino communities to adjudicate matters according to their own standards especially when the traditional criminal justice system has certainly done them disproportionate dis-service.

Of course, there are limitations to race-based jury nullification. It doesn’t tell us what to do when the perpetrator is white and the victim black, as in the case of the controversial Oscar Grant trial. It also assumes that just because someone is a member of a minority group, s/he is more than likely to deliver an acquittal based on race, which is not necessarily true. There’s also a danger in entrenching identity politics into our sense of justice, but the system already privileges one race over another.

After all, flexibility and crime nullification is already afforded to the most privileged in our society, ranging from the architects of torture memos to the finance crooks at Lehman Brothers and AIG to the environmentally-destructive BP. These people should face criminal charges for destroying so many lives, but they have a certain privileging. In the meantime, another black teenager will go to prison for marijuana possession and along with other imprisoned marijuana users, cost taxpayers $1 billion per year.

I certainly don’t want non-violent drug offenders and prostitutes in prison. I am astounded by the fact that one in every 100 Americans has been incarcerated. And I cannot wrap my head around the increasing criminalization of immigrants and asylum seekers.

It essentially boils down to what sort of criminal justice system we want in this country. Do we want a criminal justice system based on punishing every violation of the law, even when the law does not make much sense? Or do we want a system that is flexible and affords a jury of peers some right to change the outcome of a trial based on what seems fair to their community?

Instead of arguing for race-based jury nullification, what we want is a more fair application of laws when it comes to minority groups. That’s the least we can do to put the aspect of justice back into our system of criminal justice.

What if a Muslim Had Taken Hostages at Discovery Channel?

When white men like Joseph Stack run their plans into federal buildings, they are insane and suicidal. When Timothy McVeigh blew up a  federal building in Oklahoma City, no one dared to say that his actions reflected the collective thought and behavior of all Caucasians. But Allah forbid, a Muslim male takes over a building. All hell would break lose against everyone perceived as a Muslim in America.

Interestingly, an Asian-American male taking hostages in a building does not spark the same irrational collective fear and hatred in the hearts of Americans as a Muslim army officer would for opening fire on some troops. This is not to say that the media is treating the Discovery Channel gunman James Lee in the same way it would a white male like Joseph Stack.

No, James Lee was acting out of a hysterical radical environment agenda that had nothing to do with his ethnicity or religion. His individual actions and manifesto will be used as a weapon against pro-environmental groups to discredit their claims. Watch out Al Gore! But we won’t view all Asian-Americans with the same contempt and suspicion that is faced by Arab-Americans and South Asians in America.

If a Muslim of Arab or Asian descent committed such an act, the entire community would be held responsible. They hate us. They also hate our animals. They shall not have a mosque (rather, a cultural center) anywhere near a wildlife refuge. They must be put into internment camps. And insert other moralistic oversimplifications here.

Mainstream media reports and blogs mostly refer to Discovery gunmen James Lee as “wacko” and “crazy” instead of extending the culpability of his actions to all Asian-Americans. He acted alone and irrationally. There is no rationality in his actions, and hence no blame is extended to any particular ethnic group or religion. But is there a connection based on mental health issues between the actions of James Lee and that of Seung-Hui Cho, the Virginia Tech gunman who killed over thirty college students in 2007?

Angry Asian Man would decry any such connection. Reappropriate draws a comparison that goes beyond ethnicity to draw out attention to how themes like alienation and oppression resonated with both gunmen. Of course, there is little chance that a happy-go-lucky person who is mentally healthy would take anyone hostage. James Lee had death-wish of sorts, and our job is to make sure that seeking help is not a stigma.

February Food for Thought: On Fear, Race, Change and Borders

On fear: Focus on believing in yourself. Everything else falls into place.

When you give people the power to set time-lines on your life, you lose.

Fear isn’t a sign of defeat necessarily. But having that fear dictate your actions or inaction is certainly defeat.

On race: Yay for Black History Month. Isn’t it so great that all the minorities get their own month here? Nothing like a month to make us feel equal.

We can give away months to minorities, but whitey still owns the calendar!

On change through new media: Most social change is the not-so-novel idea of one person fueled by the actions of many in various mediums.

On borders: Borders are human-made, geo-political constructions that should neither necessitate the deprivation of basic human rights nor cast people as outsiders. In our world, they function as a specific form of colonial domination that necessitates the delineation of an inside and outside, the marking and categorizing of certain bodies as alien and foreign for specific political purposes such as the “national security” project.

TOI Article – 'Why Blacks outrace Whites'

This was supposed to be posted in the “Olympic season” but better late than never.

Why Blacks Outrace Whites

I think any study that starts with the central assumption that there is some great tangible genetic difference between a “black” or “white” person is bound to leave out other possible socio-cultural, geographical or evolutionary biology explanations. I have friends and family who tend to believe that “blacks are faster and stronger” due to the high concentration of successful black track and field athletes (and all ‘Asians’ are smart and good at math and so on) and the mainstream media does not help to question such beliefs and binary modes of thinking. This is dangerous since it serves to cement a ‘difference’ between ‘racial’ groups that does not exist.

Race is socially-constructed, hence there has to be an alternate explanation for why a certain ‘racial’ group seemingly performs better. All things being equal, there is more genetic variation between two people of different heights than between someone with dark skin as opposed to someone with fair skin. Inputs and other studies welcome — I think this merits further research on my part post-exams. Enjoy the read (full article here):

In the last three decades, athletics, like all sports, has become more and more globalised. Athletes from many small countries are participating in international competitions, and technologies are more freely accessible, although at steep costs. In this levelling of the playing field, the rise of black power has stunned the world once used to seeing only whites on the podium. What is behind this polarization? Is it in the genes or is it the desire to win?

It has come under huge scrutiny by scientists and sociologists in the past decade. Over 200 scientific studies have been carried out and many more are going on. The association of skin colour with a genetic structure suited for athletics has not been established. This is more so because among the black athletes, there are two very distinct categories — those from East Africa, who dominate long distance running, and those of West African ancestry who dominate sprints.Most athletes from the Caribbean and North America belong to the latter category as their ancestors were taken to the New World as slaves between the 15th and 19th centuries. The average West African weighs 30kg more than average East Africans, who are small with thin legs and arms.

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