The Criminal Jury, Nullfication, and Open Governance

Jenny E. Carroll

Résumé

[Extract] The movement towards open governance has encouraged not only transparency, but direct citizen participation in government. In reality, however large swaths of the actual experience of governance and law-making unaccounted for. Even as notions of governance have evolved, they seem to hover around an underlying notion that there is a separation between those who make laws and those to whom the law is applied. To the extent that there is overlap in these realms, it is that those who occupy the formal spaces where law is created are also subject to those laws. Ordinary citizens are the recipients, not the creators, of law. Even as proponents and theorists have recognized that the call to open governance pushes those in power to account for law-making that occurs through interpretation, the realm of that interpretation remains in those narrow spaces of formal governance. Thus, even among those open governance advocates who would move governance away from its positivist and formalist roots, the power of law-making remains in particular and designated spaces, separated from the very people whom the law would govern.

Jury nullification is rarely discussed in the context of open governance movements. Nullification, or the possibility that a citizen juror would interpret the law, seems counter to the primary ideals of the movement’s allegiance to transparency and order – that laws are knowable in advance of any particular case, created and applied in a uniform manner, and there is a separation between the governed and the government establishes this order, that they are knowable promotes transparency. But this failure to account for jury nullification (or the role of jurors in the open governance movement) is a mistake. To the extent that traditional models of governance and the rule of law establishes a distant (and from the perspective of the citizen, passive) relationship between the citizen and his government; nullification challenges this relationship. It opens the possibility that a juror, with no greater qualification than the fact of his citizenry (and his ability to survive the voir dire process) is an appropriate source of law. The citizen’s role shifts from the law’s passive recipient to the law’s active creator, through his interpretation and application of the law as juror. With this shift, a new conception of law is born – one flowing from both formal and informal sources, which includes jurors engaged in nullification. This conception of law, and governance under it, is not only a more accurate presentation of law-making in a democracy; but counter intuitively it supports transparency by directly involving the citizen in the law-making process. Accepting that jurors play a vital role in open governance, recognizes that the value of the law is not only in its predictability, but also in its ability to be responsive to the citizen’s own lives and to conform with the citizen’s expectations and understanding of the law.

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