Hacking Society To Create a More Libertarian World

Summary:This essay will show interested, activism-minded libertarians how they can produce a measurable result of individual freedom by handing out business cards that have a well-designed "jury rights" message on them. These business cards produce a result that directly expands individual freedom (by interfering with unjust prosecutions), instead of a result that (perhaps) changes someone's mind on an issue and urges them to pursue the implementation of that idea at a later date and more uncertainly, by "voting for a representative of that idea." Sure, politicians can be enlisted in this effort, but the effort does not and should not depend on them for its success.

First: If you're not already a libertarian, please read something by Lysander Spooner, Clay Conrad, Friedrich A. Hayek, Murray Rothbard, Frederick Douglass, Adam Smith, Henry David Thoreau, Robert Heinlein, or Ayn Rand, and come back to this post when you are a libertarian. This essay is for libertarian or "classical liberal" activists who already understand the philosophy, but wish to implement it. It assumes you are angry that the incumbent government is putting people in cages for drug use, gun possession, tax non-payment, gambling, prostitution, and other "victimless (non-)crimes." It assumes you have a basic comprehension of the concept that without "injury" combined with "intent to injure," there is no "corpus delicti" or "body of the crime," and therefore, there is no crime. Again: If you think pot smokers should be filling up U.S. prisons (with more than 2.3 million people!), please leave this page, and go crack a book open.

OK, you're a libertarian. Now, why should you listen to me? Who am I and what do I know about anything?

I'm a paid libertarian activist. I've been a libertarian (small-L and big-L) ballot access petitioner for the past 16 years. I've repeatedly helped the Libertarian Party, Constitution Party, Green Party, Democrat(Rocky De La Fuente), Republican(Ron Paul, Rand Paul), and Independent Candidates get on the ballot in over 16 U.S. States. I've done this because libertarians believe that all candidates have a right to access the ballot, and the other parties also increase the payments made toward my ballot access petitioning. In addition to candidate ballot access petitioning, I've helped place small-L libertarian initiatives on the ballot in 10 overlapping U.S. States.

Over time, I began to realize that most of these efforts did little or nothing to accomplish my goal of "expanding individual freedom." (My work for John McAfee is one exception to this rule.) Most of the Libertarian candidates I met were grossly incompetent, and incapable of even knowing what criteria were necessary to win elections, much less capable of satisfying those criteria on a limited budget. Most of the paid initiatives I worked on had inconsequential goals(a minor property tax reduction, etc.) that, even when the voters have voted them in (and the courts haven't thrown them out), they have accomplished very little, if anything.

...But there were a few discoveries I made that I believe have great power to expand individual freedom.

First, I noticed that jury trials in the USA had been corrupted in six major ways:

1. The adoption of "voir dire" pretrial "jury selection" based on subject matter of the case;
2. The replacement of rightful judicial jury instruction with wrongful judicial jury instruction;
3. The dumbing down of the jury pool via the government takeover of eduction;
4. The licensing of lawyers (bar-licensing);
5. The judicial silencing of defendant speech;
6. Coerced "plea bargains" under the threat of cruel and unusual punishment.

Next, I noticed that not all of these six corruptions were equal in impact, and that one of them plays a far more significant role than the others. Finally, I explored the Historical progress of these corruptions in books. I witnessed their effects directly in courts of law, and I spoke with hundreds of well-informed libertarians (many of them licensed attorneys) all across America. Throughout this learning process I never lost track of my goal of "finding a way to defeat tyranny." The final results of this investigation will ultimately fill the pages of the book that I'm in the process of writing, but this essay is intended to serve as "a good plan now." (As George Patton said, "A good plan, violently executed now, is better than a perfect plan next week.")

The purpose of this essay is to quickly get you "on the same page" that I'm on, so you can "Hack Society" and "Create a Libertarian World." To do this, I'm going to take advantage of the social construct and well-established legal doctrine known as "jury nullification of law." Jury nullification of law, often purposefully and confusingly shortened to "jury nullification"(which makes it sound like the jury is being nullified) is exactly what it sounds like: the jury's right and power to nullify or veto unjust or unfairly-applied laws. This doctrine is the core active component of western civilization, the core feature of the common law that elevates "We, the People" in power over the government. The Bill of Rights essentially "calls" jury nullification as a "subroutine" using the term "due process." Jury nullification of law is the strongest limit on government power, so strong, that it resulted in the industrial revolution, creating the wealthiest nation on Earth, the United States of America.

Most people have difficulty remembering or repeating the 9-syllable term "jury nullification of law." This then leads them to trouble in explaining the shortened term "jury nullification," as well as concepts related to it. This prevents the term from becoming a popular culture ""meme"and spreading as effectively as the alternative terms "jury rights" or "jury independence." To add to the problem, this awkwardly-shortened technical term "jury nullification" is favored by bar-licensed attorneys. Defense attorneys like it because the promotion of a difficult-to-parse term means that defendants are less likely to be familiar with the concepts necessary to represent themselves pro se. Prosecutors like it because it makes convictions easier to obtain. The result of these perverse incentives (a result of the bar-licensing of lawyers), over time, is that juries have stopped "nullifying the law," even though the laws have become increasingly more unjust since 1865. How did this happen? What useful information can I give you here, to help us bring back "jury nullification" or the better, shorter, catchier activists' terms, "jury rights" and "jury independence"?

To answer the prior questions, I need to explain how we got to this point. To do that, I'm going to "let the cat out of the bag" on the most important of the prior six ways the Jury has been corrupted. It's the pre-trial jury selection process known as voir dire. (Pronounced "Vwahr deer," it rhymes with the French word for "black" and the animal "deer".) Nationally-syndicated libertarian columnist Vin Suprynowicz has described this process as "French for jury-stacking." The term is actually a "legalese" bastardization of both French and Latin (it's an improperly-conjugated French root). Even the many lawyers who edit the definition on Wikipedia can't seem to agree on an English translation, but many etymologists suggest it's similar to: "to see them say."

Voir dire is a legalese term given to us by licensed attorneys, to purposefully obfuscate the goals of the pre-trial "jury selection process." This entire process was designed, and is currently used, solely to defeat jury randomness. (The randomness of the jury is the sole reason that juries once strongly limited government power, but more on that, in a minute.) Everybody intuitively knows what "voir dire" accomplishes when they see it first-hand: it stacks juries full of mindless conformists who are willing to convict innocent people simply because a judge implies that they should. Like the obedient conformists in Stanley Milgram's famous study on obedience(video), those who are profiled by the judge as being willing to obey "the superficial appearance of legitimate authority" are the ones who are selected for jury duty during "voir dire." Voir dire thereby eliminates thoughtful individualists from juries before the trial begins. For this reason, many defense attorneys call voir dire "the trial before the trial."

In every state I've circulated petitions in, while talking to around 100 to 200 people per day, I reliably run into ten to twenty rebellious individualists who tell me "The judge kicked me off the jury!" or "The judge didn't want me on the jury." The reason for this is obvious: free-thinking people won't return "guilty" verdicts in victimless crime cases. If and when the judge profiles a prospective juror as an individualist, they kick them off the jury. The result of this is to destroy jury randomness, and thereby destroy the odds of seating empathic, thoughtful, socially-tolerant, morally-consistent individualists (libertarians) on the jury. Instead, obedient conformists who are easily bent to the will of the judge are seated. Typically, judges are former prosecutors, because they have a clearer career path to judicial authority than defense attorneys have, and because the bar-licensing racket favors those who agree with all the existing laws, while reprimanding and controlling those who do not.

Right now, only two judges in the USA regularly inform the jury of their right to independently vote their conscience. (Judge John Buttrick, a federal district court judge in Yuma, Arizona, and Judge Susan Bell in Hagerstown, Indiana.) This is true except in New Hampshire and Indiana

The willingness of empathic, disobedient individualists to "nullify the law" is what gave us all of the freedom that America once enjoyed, relative to the primitive despotisms and autocratic theocracy seen in the rest of the world. The most famous examples of this are the trials of William Penn(1670) and John Peter Zenger(1735), which both cemented the legitimacy of jurors vetoing the law, as well as expanded the rights to freedom of speech and public assembly. Though both of these cases came before the American revolution of 1776, the precedents were upheld by the founding father Alexander Hamilton in 1804, in the appeal to the trial of Harry Croswell, who was charged with criminal libel and sedition under the Alien and Sedition Acts of 1802. Though Croswell was found guilty, the Alien and Sedition Acts were de-facto overturned by the New York State Legislature during his lengthy appeal, and he was never sentenced.

Prior to the adoption of voir dire, in trials like the previously-mentioned ones, jurors were randomly-selected, and unjust results stemmed primarily from illegitimate instructions from judges. Prior to 1851, the only thing a "prospective juror"(prospective jurors are called "venireman" in legalese) could be dismissed for was "a legal conflict of interest." A legal conflict of interest consists of only two possibilities: a venireman is either (1) familially-related to one of the parties to the action or (2) doing business with one of the parties to the action. If neither of the prior "conflicts of interest" existed, then the juror had to be seated unless they were mentally incompetent or physically unable to serve. This standard of randomness resulted in robust juries that made it statistically impossible to obtain a conviction under any unjust law, due to the statistical probability that determines the prosecution's odds of a conviction, when any one person can "hang the jury" by refusing to "go with the crowd."

So what happened in 1850 to allow judges to stack the jury against the defendant as a part of the pre-trial process?

The Fugitive Slave Law of 1850 was passed, and Northern individualist jurors refused to return guilty verdicts in runaway slave cases. Now, Northern judges and prosecutors could have simply said, "Oh well, too bad for our power and prestige as corrupt enforcers of whatever immoral laws the legislature dreams up! I guess this law is unenforceable. We'll just have to stop bringing charges against fugitive slaves. ...Back to the drawing board!" ...But they didn't. They decided to throw 400 years of common law social progress out the window, and allow judges to stack the jury against the defendant. To bamboozle the average citizen-juror, they called this process "voir dire." This strategy worked surprisingly well until the abolitionists of the day (Lysander Spooner and Frederick Douglass) exposed the dirty trick in the pages of Frederick Douglass' newspaper, "The Liberator." Northerners got wise, and it made the fugitive slave law unenforceable in Massachusetts and New York.

Prior to the creation of the process of voir dire, most of the unconstitutional laws U.S. Congress made were simply unenforceable, frequently disobeyed, and no effort was made to enforce them. (Consider the "unmarried cohabitation" laws that are still on the books in most States. Such laws are unenforceable because even a prosecution-stacked jury disagrees with them. These laws lack even 10% support among the general public, so prosecutors don't ever bother losing face and harming their careers by trying to enforce them.)

In any case, after the institutionalization of voir dire, the power of the legislature was dramatically expanded, and this power was never reversed following the Civil War. When juries are randomly-selected the likelihood of a prosecutor obtaining a conviction is calculated by the following formula: (the percentage of the population in favor of the law, taken as a decimal) raised to the power of 12 (because there are 12 jurors). The counter-intuitive nature of this formula suggests an example: If 95% of people in a county-wide "jury pool" are in favor of enforcing the drug laws, what is the likelihood an obvious drug user will be convicted? To find the answer, we take .95 x .95 x .95 x .95 x .95 x .95 x .95 x .95 x .95 x .95 x .95 x .95, for an answer of .5403, or ...a 54.03% chance of conviction. (Any random jury member from the "jury pool" can "hang the jury," which is why it's not 1/12.) No prosecutor will even enter a trial with a 54% chance of conviction, they will ask the judge to dismiss the case, so their "prosecution rate" won't take a hit, and so they and the judge won't risk losing their next election for "wasting taxpayer money" on unwinnable cases. Because 99.9% of people support the laws against murder, rape, and robbery, the same formula gives the prosecutor a very good chance of conviction when prosecuting actual crimes. (.999 ^12 = .9880 = a 98.8% chance of conviction.)

The only thing that matters to prosecutors is winning cases. They lack empathy for the defendants, because if they had empathy for unjustly accused defendants, they'd be incapable of "doing their job." The job functionality acts as a filter that weeds out "empathic, forgiving, moral people." (Just like the job of "Nazi prison guard" attracted sociopaths, the job of prosecutor, ...as currently defined... also attracts sociopaths.) As an additional perverse incentive, many prisons are now "for profit" so there is an additional profit motive placed on prosecutors to "fill the prisons" to justify more tax money being allocated to the prisons. This then results in the state preying mercilessly on society's weakest citizens: the children of political minorities. As long as minorities cannot muster a large enough vote to unseat the incumbent majority, the incumbent majority acts with the confidence in their ability to apply the drug laws in a grossly unfair and racist manner.

...But I digress, as this "page long" essay is already getting to be too long. So what's the cure for voir dire? How do we reinstate properly-random jury trials, and thereby render unconstitutional laws unenforceable?

I have a social hack for that. ...One that exploits political technology (See: page 6 in the prior linked PDF).

I hand out business cards that contain "just enough information" to show an individualist how to get seated on the jury, so they can vote "not guilty" if and when they are summoned to serve on a victimless crime or "mala prohibita" case in their county.

...Because that's the problem. Good people (libertarian individualists) don't get seated on juries, because they're unprepared for the pre-trial jury questioning process with the fancy French name. (And one not even need be a libertarian to be willing to "nullify the law," ...one just needs to be a libertarian on the issue in question in the trial at hand.) My petitioning experience has shown me that there are more than enough people who know that they have the right to vote their conscience and nullify a bad law, but they don't know enough to keep their mouths shut during voir dire. They don't think through what will happen if they don't act like a servile conformist who agrees with "applying the law." Perhaps they simply can't bring themselves to admit that the judge is corrupted, and wants a conviction.

Here's a screenshot of the front and back of my latest version of the business card:

At the end of this essay is the text on the back of my business cards, so you can use it, too. (You have my full permission to copy and paste the text with no attribution.) Just print the text on the back of your own business cards. You can get 5,000 business cards from "Next Day Fliers" for around $175.00. If you hand them out only to people who live in your own county, you will have created a libertarian micro-revolution in your county by the time you finish handing them out. You can hand them out in front of courthouses (which is risky if you're in an exceptionally totalitarian state like Florida or Michigan), you can hand them out door-to-door while campaigning for local politicians (which is much safer), or you can simply hand them out to family, friends, and acquaintances (safest of all).

I urge you to get involved at your own desired risk level. The results will likely amaze you! In many counties in Montana, it is now statistically impossible to find any jurors willing to convict in a marijuana case. (By the way: many small-L libertarian candidates and "green" candidates, no matter what party they're running under, will pay you to go door-to-door for them, and to hand out fliers for them in addition to handing out your jury rights information. Many political parties and candidates will also pay you to gather signatures for state-wide ballot access, especially during an election year. In both cases, this payment for conventional work can subsidize the dissemination of this "jury rights information.")

Photo credit: Andrew W. Griffin / Red Dirt Report

You don't need to increase the number of individualists and "single issue" libertarian-minded people. It's been my experience (in all of the 24 States I've worked in) that there are enough dissenters already. However, they are simply rendered ineffective by voir dire. This makes the job of the social hacker clear: We just need to hand the existing individualists information that points them in the right direction, and warns them about voir dire!

Together we can "prune away" the unconstitutional portions of this increasingly grotesque and unconstitutional police state that we've allowed to grow and metastasise over the past 166 years.

Remember: you're just trying to get the card into the hands of 5% of the jury pool. In 81% of the counties in the U.S.A.(2554/3142), that means handing out fewer than 5,000 cards. If you're in a county that's too large, chances are good that a lower-population county is within an 30 minute drive.

So, with all the prior in mind, here's the language on the back of the cards I hand out, language that can be replicated and spread throughout society, as a "social programming hack" that restores proper, Enlightenment-era jury trials:
Know Your Rights As A Jury Member:

In 1850, Northern judges and prosecutors were frustrated by juries that returned "not guilty" verdicts in moral opposition to the Fugitive Slave Law. So, beginning in 1851, judges began allowing prosecutors to question jury members for disagreement with the law, and remove them if they disagreed. This unconstitutional process was called "voir dire" and is still practiced before every trial as a means of enforcing immoral "victimless crime" laws. The solution? Answer "voir dire" questions like an unthinking conformist who agrees with the law, and get seated on the jury. Once seated, jury verdicts must stand, even if they've practiced "jury nullification of law" by voting "not guilty" due to moral disagreement with the law. Call 1-800-TEL-JURY for a free information packet on your individual right to jury independence.

http://fija.org/docs/BR_YYYY_surviving_voir_dire.pdf*

*The link at the bottom of the card is the best multi-page pdf written about jury rights, written by the scholar who has most advanced the historical literature on the subject, Clay Conrad. Conrad is the author of "Jury Nullification: The Evolution of a Doctrine," which is the best book on "jury nullification of law."

Here's an image of the business card file being edited at "Next Day Fliers":

Conclusion:
From initial measurements of "the current state of affairs" in one's home county, the progress of this strategy can be known, so that increments of improvement or failure can be measured and errors corrected. Further, upon reaching a statistical threshold, the issue can be brought to a head via civil disobedience, which, culturally has often produced the greatest political change, the most quickly (think of Gandhi's salt march, and Martin Luther King Jr's bus boycott stemming from Rosa Parks' refusal to surrender her seat). This is in contrast with the typical libertarian non-strategy of "talk about libertarian ideas on single issues and hope they catch on" or "elect one legislator and hope he can change the entire system, even though he's outnumbered 100 to 1." Anomalous results from one's county courthouse are reported on a continuous basis by the local media, and the bare minimum goal of this activism is to achieve a newsworthy "network effect" from affecting the jury pool that serves that courthouse. This allows for imitation at the county-level, nationwide, rather than imitation at a larger level that is harder to replicate. Given ongoing activism up to a "threshold of effectiveness," this plan produces concrete changes in society by interfering with unjust prosecutions.

One can radiate outward once one has reached the "nullification threshold" in one's own county, adding neighboring counties until a "nullification" candidate can be run in the state legislative district comprised of neighboring counties. Long before that, one can elect pro-nullification county sheriffs.

Rather than attempting to elect libertarians first, one should attempt to elect them concurrently with jury rights activism. This has the added benefit of turning electoral campaigns from a "zero sum game"(either elected or not) into a gracefully-decaying attempt to build toward the jury independence threshold of 5%. Of course, one can develop better means of recording the frequency of jury nullifications than I've outlined here, but the basic idea should be clear.

If one lives in a huge county (such as Cook County, IL, where Chicago is located), one can target the subsection of the county that tends to be "most victimized," or one can target a state legislative(SL) district or nearby county with a lower population. One can also toy with varying methods of unifying independent jurors into a grassroots movement. Some people only put their emails on the fronts of the cards, others put their phone numbers, while others put "meetup" group information. These are just details (which should be recorded and entered into an excel spreadsheet so that effective techniques that emerge can be replicated). The unification around a psychologically-effective jury independence message at the local level, and the direct implementation of jury nullification of law wherever possible, via face-to-face communication, is the core idea.

As a final note, it makes a great deal of sense to many people, instead of handing out cards, to promote resistance to "voir dire" online. ...But this partly misses the point. The goal of handing out the cards is to target prospective jurors who live inside of one specific jury pool, so you can know when you've reached 5%, and so you can get a good idea how well people respond in one jury pool. (If you succeed, we want to know how you did it!) Because jurors are commonly drawn from all over the county, reaching out online doesn't let you know who you've reached. It also ensures you may not reach people who are likely to be called as jurors, since the elderly are often called repeatedly as jurors, and young people who spend all their time on Facebook, especially those with no landline who are difficult to reach (or profiled by the courts are "more likely to nullify") are often not contacted at all. If you systematically target all potential jurors, you know you're going to reach "the certainty-of-nullification threshold" at some point. (There's no guarantee this will ever happen with purely online outreach efforts.) Moreover: nothing stops one from doing both, so long as "away from keyboard" activism is prioritized.

This type of activism may seem strange to conventional political operatives. In fact, it will be strange. But it will be a "return to form" to the type of activism once practiced by the English levellers, the pamphleteers who first informed the public that they had a right to a random jury trial by their own peers. ...And this is exactly the type of activism that gave us the high standard of living we enjoy today. Because it can be paired with the type of activism that is already being implemented in conventional door-to-door campaigning, this is an ideal "social hack" that can dramatically expand individual freedom in your local area.

Good luck setting your county free! Let me know how your luck fares in the comment section. Vote this up if you want to finance helping to set victimless crime offenders (who are bold enough to demand a jury trial!) free.
Together (or alone!), we can make a difference.