April 29, 2012
Open thread for reflections the 20-year anniversary of the LA "acquittal" riots
I can hardly believe it has already been two decades since the sad and stunning multi-day riots in Los Angeles, which followed the (surprising?) acquittal by an all-white state jury of four white LA police officers who were videotaped severely beating Rodney King following a traffic stop. There were so many elements to the role of race and media and criminal justice surrounding the Rodeny King events, and sentencing fans also know that the subsequent federal prosecution of the officers involved in the videotaped beating led to Koon v. United States, the most important and consequential Supreme Court ruling about the operation of the federal sentencing guidelines in the period post-Mistretta and pre-Booker.
I suspect many readers of this blog remember many (different) aspects of all the Rodney King events, and I welcome reflections of all sorts on this 20th anniversary of the most violent and remarkable moment in what was ultimately a multi-year saga. Ever the sentencing nerd, and because the SCOTUS ruling in Koon was the focal point of much of my pre-Booker scholarly writing about the federal sentencing system, I am tempted to opine at length about what the Supreme Court did right and did wrong in Koon. But readers really interested in that part of the story can and should just check out my (still timely?) article on this topic, Balanced and Purposeful Departures: Fixing A Jurisprudence That Undermines the Federal Sentencing Guidelines, 76 Notre Dame Law Review 21 (2000).
Rather than focus on federal sentencing (and its enduring challenges), perhaps here it is worthwhile to recall Rodney King's famous quote when asked to comment about the riots and the seemingly positive subsequent tales of race relations in LA. King famously asked back in 1992, “Can we all get along? . . . I mean, we're all stuck here for a while. Let's try to work it out.” And this Wall Street Journal article, headlined "Twenty Years Later, L.A.'s Divisions Fade: Attitudes Toward Police and Race Relations Have Turned Positive Since Devastating Riots; Economy Is Big Concern Now," suggests we now have a decent answer to this query.
April 29, 2012 at 12:21 PM | Permalink
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The case is a landmark example of (1) why jury nullification is bad, and (2) why the dual sovereignty doctrine is good.
Posted by: Bill Otis | Apr 29, 2012 2:23:36 PM
This message is addressed to the civilians reading these comments. The lawyer is hopeless, and will have no idea what I am talking about.
The biggest take home message of this episode? The Korean store owners who went to the roof and tried to shoot looters were the sole people who were not victimized, and who lost nothing.
Take home message to those stopped by the police, including black people with hostility toward the police. Be quiet, and do as you are told. Do not throw any punches at these thugs.
Posted by: Supremacy Claus | Apr 29, 2012 9:20:47 PM
To Bill Otis, I would say that one data point does not make a set or prove a point. A set of data points might be all the non-violent, low level offenders rotting in jail after a robot jury duly convicted them with nary a thought as to whether the defendant harmed anyone. I believe those data points would support the concept of jury nullification as an effective counterweight to an overzealous prosecuter or unjust law or unjust sentencing standard.
After looking at the graph, I must say that it comes as a great relief to know that, today, an Angeleno is now far more likely to be beaten by a police officer who shares his own race than in 1992. It wasn't fair that the white guys got to do all the beatings in the past. Kudos to the LAPD HR Dept for its diversity in hiring.
Posted by: Jardinero1 | Apr 30, 2012 10:47:16 AM
The Rodney King beating, the Rampart scandal, truckloads of Brady violations, etc.
Those purportedly enforcing the laws in L.A. engage in more law-breaking than those against whom they seek to enforce the laws.
Empty the jails and prisons in L.A., and put the cops and prosecutors in there. Same difference.
Posted by: Calif. Capital Defense Counsel | Apr 30, 2012 11:26:45 AM
"Empty the jails and prisons in L.A., and put the cops and prosecutors in there."
Thank you for having the candor to say out loud what your wingnut colleagues think but keep under their hats. I remember that at one point you said your clients' behavior (murder) was awful, and thus presumably prison was a good place for them, but I see you're beyond that now.
Posted by: Bill Otis | Apr 30, 2012 11:41:36 AM
"To Bill Otis, I would say that one data point does not make a set or prove a point."
Still, it's one more than you cite to prove yours.
If a point be made of it, however, my claim was not as broad as you take it to be. What I said is that the case is a good EXAMPLE of why jury nullification is bad and the dual sovereignty doctrine good (the latter being a notion you don't dispute).
"A set of data points might be all the non-violent, low level offenders rotting in jail after a robot jury duly convicted them with nary a thought as to whether the defendant harmed anyone. I believe those data points would support the concept of jury nullification as an effective counterweight to an overzealous prosecuter or unjust law or unjust sentencing standard."
If there is a single NACDL shibboleth you missed, it escaped me. There is no such thing as a dangerous criminal or a normal prosecutor. It's always "low-level" and "non-violent" offenders who are "rotting" in jail as the result of a "robot" jury that failed to consider whether there was "harm," (as defined by the defendant in whatever way avoids any culpability). And the only prosecutor we hear about is (as ever and ever) "overzealous" and ready to enforce an "unjust" law (that being any the client broke).
Fine. You want nullifying juries? Have at it, although I should tell you you're a bit late. Mississippi had lots of them in the 50's and 60's, handing out all sorts of nullification acquittals to white "low level" and "non-violent" (except for lynching) defendants.
Posted by: Bill Otis | Apr 30, 2012 12:18:59 PM
I appreciate your points Mr Otis. They lose their strength when you haul out the Jim Crow analogy. I think Jurors should be allowed to consider the facts, the law and their own conscience. There is a false equivalence between a juror refusing to convict because he believes a law or its corresponding punishment unjust and a juror refusing to convict because because he sympathizes more with a perpetrater of violence than the victim. The former case is jury nullification and the latter case is plainly not.
The reason I refer non-violent offenders is because if they are non-violent, then they don't pose a threat to society and don't require the attendant cost to society of incarceration. The same is not true of violent offenders.
There should be an analog to Godwin's law that says that the longer you discuss federalism or jury nullification the greater the probability a speaker will invoke Jim Crow. We should call it Jardinero1's Law or Jardinero1's Rule of Jim Crow analogies.
Posted by: Jardinero1 | Apr 30, 2012 2:49:15 PM
Jardinero1 - Once the cat is out of the bag, the cat is out of the bag.
Posted by: C | Apr 30, 2012 6:21:08 PM
Your view is essentially an argument that jury nullification is OK when the jury's "conscience" agrees with the substance of your particular consternation about Law X, but not OK otherwise. The problem you elide is that one jury's "conscience" is another jury's "sincere belief."
You disagree with the Jim Crow examples precisely because they illustrate his phenomenon. There were times and places in this country when people sincerely believed (I'm sure they would have called it "conscience" or some similarly appealing thing), that it was wrong to punish a white person for committing a crime against a black one. Once we start allowing the jury to substitute its strongly held views for those of the legislature, there is no principled way (and no practical way either), to distinguish between verdicts driven by "conscience" and those driven by "sincere belief."
For that matter, there is no principled way that your suggested theory of nullification can be limited to "non-violent" offenses. Just today, Doug has up an entry about a multi-zillion dollar Ponzi scheme that wiped about various people's life savings. Your theory that, "if [the defendant's crimes] are non-violent, then they don't pose a threat to society," is incorrect, and very widely condemned, even on this largely pro-defense board.
Consider: These big-time swindles pose a threat to society because, inter alia, they undermine the trust upon which so much of commerce, and thus ultimately our standard of living, depends. A world in which rampant theft is not considered a crime -- or, if it is so considered, a crime to be shunted aside by jury nullification (if but only if one draws the "right" jury) -- is unlike any world that exists in American criminal law, or, to my knowledge, exists in the criminal law of any industrial society.
Nor is that the end of the problem. Let's say that jurors believe, in conscience, that, in the prosecution of the town bully intimidating common folk, the BRD standard for conviction is too high, because the potential witnesses with the most convincing evidence are afraid to testify. Thus the jurors' conscience tells them to convict based on proof less than BRD. Is that OK too?
Once we start down the path of jury nullification, it's only a very few short steps before we cash in anything recognizable as "law" and embrace instead (all depending on the jury you draw) a regimen driven by sentiment, personal belief or prejudice, all of them dressed up as "conscience." The rule of law wisely, and necessarily, refuses to start down that road.
Posted by: Bill Otis | Apr 30, 2012 6:33:13 PM
Thanks for aptly summarizing my six paragraphs in your one sentence.
I should add this: Jardinero1's nullification theory would ordinarily apply to cases where it's quite a stretch to consider the nullifying jury's views a matter of "conscience" rather than just a sharp disagreement about policy.
Mostly we hear about jury nullification in the context of pot-related prosecutions. But the divide on the legalization question is not as sharp as it appears, and for only a very few people is it truly a matter of "conscience."
Most of the legalization camp says that pot should be de-criminalized, and should instead by regulated and taxed, with the rules enforced by civil rather than criminal penalties. Most also say that they continue to favor criminal penalties for the harder drugs like herion and methamphetamine.
That being the case, a nullification-driven acquittal in a pot possession prosecution (such of them as there are) would more accurately be said to reflect a policy disagreement about precisley how socially destructive pot is, and not a conscience-driven disagreement about using criminal law to combat drugs. Indeed, it will often turn out to be nothing more than a factual disagreement, with some saying pot is socially quite harmful and others (presumably the nullification-friendly folks) saying it's not.
That is a significant disagreement, but it's not really about conscience.
Posted by: Bill Otis | Apr 30, 2012 7:34:18 PM
Yes, C and Mr. Otis, there will be cases where a juror will vote to acquit where neither one of you would. Most of the time, though, a jury will consider the law and the facts and vote the way you would.
You both have a faith in the legislature, the judge and the prosecution that I plainly lack. Thus, I would still prefer a jury instructed to consider the facts, the law as well as its conscience, any day of the week, for both violent and nonviolent crimes.
Posted by: Jardinero1 | Apr 30, 2012 10:13:25 PM
C, People who have been defrauded financially have civil remedies available to them. So no, I don't think the state should pursue criminal prosecutions for financial fraud.
Posted by: Jardinero1 | Apr 30, 2012 10:17:40 PM
People who are the victims of violent crime have civil remedies available to them. (You can always sue your robber.). So no, I don't think the state should pursue criminal prosecutions for violent crimes.
Posted by: Logical corollary | May 1, 2012 11:03:01 AM
logical corollary - Fraud involves the deliberate deception or violation of an understanding by one party, between two or more parties. It is not at all analogous to or a corollary to robbery or any violent crime.
I assume you believe fraud is a criminal offense worthy of incarceration like robbery or battery. Where would you draw the line on incarcerations for fraud. When a scientists misrepresents data on a grant application, should he go to jail? When a group of climate scientists conspire to misrepresent their climate data should they go to jail? These are examples of fraud. These examples, were deliberate, deceptive and caused actual harm.
Posted by: Jardinero1 | May 1, 2012 1:23:21 PM