To me, it’s inconceivable that this prosecution motion will not be granted (December 19, 2014: The judge has indeed ruled as much, saying “Whether you like the politics or don’t like the politics is totally irrelevant to whether the government has met its burden of proof.”[1]): “Prosecutors in the case against alleged Silk Road mastermind Ross Ulbricht want the court to prohibit Ulbricht from saying almost anything political at all, according to a motion filed last week by the government.” It seems they’re afraid a jury will choose to nullify the law in this case.[2]
The Silk Road was an on line recreational drug marketplace. So a conceivable defense, the one prosecutors apparently fear, is that Ulbricht might successfully challenge the legitimacy of the war on drugs and of government actions to restrain the trade.[3] Jurors have always had the right to nullify laws, but the legal system has moved in the direction of limiting jurors to findings of fact, reserving findings of law to “experts,” that is, judges and lawyers. Jurors are generally not even informed that they have the right of nullification.[4] It’s a move I oppose. I do not accept that justice reduces to law, especially law passed by mostly wealthy white males against everyone else. I’m quite clear about this, and so I never serve on juries.
On one hand, the judiciary’s fear of jury nullification is understandable. If jury deliberations expand beyond finding of fact, deliberations might take far longer. And the shrinkage of justice to words written in black and white means that clogged court calendars don’t get any more clogged than they already are.
Further, were jury nullification to become common, the law might cease to be the law. And in a country where the vast majority of crimes are crimes of economic desperation,[5] an unjust political and economic order that benefits well-off judges and lawyers as well as political and economic elites would be under perpetual challenge.
It is better, therefore, to simply lock people up. Which is to say, it is better to substitute law for justice. And in the U.S., we do this with abandon, even though it is only marginally effective: The criminal [in]justice system in its present form likely reduces “crime” by only fifteen percent.[6] And it does so while largely overlooking the white collar crimes of the wealthy, crimes that cause greater damage and injure more people.[7]
So justice is not the object. Rather, preservation of the present social order, the “order” in “law and order,” with its widening disparities is the goal.[8] To ensure that this is the case, we stigmatize and criminalize the poor, to ensure that the middle and working classes keep in line,[9] even as more of those classes join the poor,[10] even as incarceration serves to expand the poor population by damaging families and communities,[11] and we attack higher education so that people will not be trained to think critically and recognize the problem.[12] And of course, as the rich get richer,[13] they have an ever greater interest in preserving an order that protects their interests.
Ultimately, Ultricht’s challenge is a challenge against the war on drugs that is, in fact, an important part of the war upon the poor.[14] And that is why, from a judicial perspective, it cannot be allowed.
- [1]Paul Carr, “Judge says alleged Silk Road founder can’t be held responsible for every bad thing that happened on the platform,” Pando Daily, December 19, 2014, http://pando.com/2014/12/19/judge-says-alleged-silk-road-founder-cant-be-held-responsible-for-every-bad-thing-that-happened-on-the-platform/↩
- [2]Patrick Howell O’Neill, “Silk Road prosecutors want to ban Ross Ulbricht’s libertarian politics in court,” Daily Dot, December 16, 2014, http://www.dailydot.com/politics/silk-road-jury-nullification-political/↩
- [3]Patrick Howell O’Neill, “Silk Road prosecutors want to ban Ross Ulbricht’s libertarian politics in court,” Daily Dot, December 16, 2014, http://www.dailydot.com/politics/silk-road-jury-nullification-political/↩
- [4]James Oldham, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York: New York University, 2006).↩
- [5]Steven E. Barkan, Criminology: A Sociological Understanding, 3rd ed. (Upper Saddle River, NJ: Pearson Prentice Hall, 2006); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).↩
- [6]Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: New, 2011).↩
- [7]Steven E. Barkan, Criminology: A Sociological Understanding, 3rd ed. (Upper Saddle River, NJ: Pearson Prentice Hall, 2006); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).↩
- [8]Edward McClelland, “You call this a middle class? ‘I’m trying not to lose my house’,” Salon, March 1, 2014, http://www.salon.com/2014/03/01/you_call_this_a_middle_class_i%e2%80%99m_trying_not_to_lose_my_house; Sean McElwee, “Sorry, neoliberals: Inequality is driven by greed, not technology,” Salon, November 30, 2013, http://www.salon.com/2013/11/30/sorry_neoliberals_inequality_is_driven_by_greed_not_technology/; Lawrence Mishel, Heidi Shierholz, and John Schmitt, “Don’t Blame the Robots: Assessing the Job Polarization Explanation of Growing Wage Inequality,” Economic Policy Institute, November 19, 2013, http://www.epi.org/publication/technology-inequality-dont-blame-the-robots/; Jerry Z. Muller, “Capitalism and Inequality: What the Right and the Left Get Wrong,” Foreign Affairs, March/April, 2013, http://www.foreignaffairs.com/articles/138844/jerry-z-muller/capitalism-and-inequality; Timothy Noah, “The United States of Inequality: Introducing the Great Divergence,” Slate, September 3, 2010, http://www.slate.com/articles/news_and_politics/the_great_divergence/features/2010/the_united_states_of_inequality/introducing_the_great_divergence.html; Barry Ritholtz, “Economic Inequality Is Not An Accident, It Was Created,” Big Picture, July 9, 2013, http://www.ritholtz.com/blog/2013/07/economic-inequality-is-not-an-accident-it-was-created/↩
- [9]Herbert J. Gans, The War Against The Poor: The Underclass And Antipoverty Policy (New York: Basic, 1995); Henry A. Giroux, “Neoliberalism and the Machinery of Disposability,” Truthout, April 8, 2014, http://truth-out.org/opinion/item/22958-neoliberalism-and-the-machinery-of-disposability; Henry A. Giroux, “Neoliberalism’s War on Democracy,” Truthout, April 26, 2014, http://www.truth-out.org/opinion/item/23306-neoliberalisms-war-on-democracy↩
- [10]Philip Bump, “The World’s Rich Are Not Incomprehensibly Wealthy Because They ‘Work Harder’,” Wire, January 20, 2014, http://www.thewire.com/politics/2014/01/worlds-rich-are-not-incomprehensibly-wealthy-because-they-work-harder/357187/; David B. Grusky, “4 Myths About Poverty,” Chronicle of Higher Education, February 24, 2014, http://chronicle.com/article/4-Myths-About-Poverty/144819/; Paul Krugman, “The Undeserving Rich,” New York Times, January 19, 2014, http://www.nytimes.com/2014/01/20/opinion/krugman-the-undeserving-rich.html; Joan Walsh, “Poverty nation: How America created a low-wage work swamp,” Salon, December 15, 2013, http://www.salon.com/2013/12/15/poverty_nation_how_america_created_a_low_wage_work_swamp/↩
- [11]Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: New, 2011).↩
- [12]Henry A. Giroux, “Neoliberalism’s War on Democracy,” Truthout, April 26, 2014, http://www.truth-out.org/opinion/item/23306-neoliberalisms-war-on-democracy; Henry Giroux, “Neoliberalism’s War Against the Radical Imagination,” Tikkun, February 11, 2014, http://www.tikkun.org/nextgen/neoliberalisms-war-against-the-radical-imagination-by-henry-giroux↩
- [13]Megha Bahree, “Who’s To Blame For The Increasing Gap Between The Rich And The Poor? Market Policies, Says New Report,” Forbes, November 5, 2014, http://www.forbes.com/sites/meghabahree/2014/11/05/whos-to-blame-for-the-increasing-gap-between-the-rich-and-the-poor-market-economy-says-new-report/; Graeme Wearden, “Oxfam: 85 richest people as wealthy as poorest half of the world,” Guardian, January 20, 2014, http://www.theguardian.com/business/2014/jan/20/oxfam-85-richest-people-half-of-the-world↩
- [14]Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: New, 2011); Herbert J. Gans, The War Against The Poor: The Underclass And Antipoverty Policy (New York: Basic, 1995).↩