skrod_thesis

i
LYSANDER SPOONER, LIFESTYLE ANARCHISM, AND JURY NULLIFICATION
by
edward john skrod
A Thesis Submitted to the Faculty of
The Wilkes Honors College
in Partial Fulfillment of the Requirements for the Degree of
Bachelor of Arts in Liberal Arts and Sciences
with a Concentration in Philosophy
Wilkes Honors College of
Florida Atlantic University
Jupiter, Florida
May 2011

ii
LYSANDER SPOONER, LIFESTYLE ANARCHISM, AND JURY NULLIFICATION
by
edward john skrod
This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Daniel
R. White, and has been approved by the members of his supervisory committee. It was
submitted to the faculty of The Honors College and was accepted in partial fulfillment of
the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences.
SUPERVISORY COMMITTEE:
___________________________________________
Dr. Daniel R. White
___________________________________________
Dr. Christopher Strain
___________________________________________
Dean, Wilkes Honors College
_______________
Date

iii
ABSTRACT
Author: edward john skrod
Title: Lysander Spooner, Lifestyle Anarchism, and Jury Nullification
Institution: Wilkes Honors College of Florida Atlantic University
Thesis Advisor: Dr. Daniel R. White
Degree: Bachelors of Arts in Liberal Arts and Sciences
Concentration: Philosophy
Year: 2011
Individual anarchism, a social movement of the early nineteenth century, was
founded on the principles of self-sovereignty and individualism. One such anarchist,
Lysander Spooner, argues in “Vices are not Crimes” that vices should not be criminalized
by the State. To do so, “deprive*s+ every man of his… liberty to pursue his own
happiness.”1
I argue that Spooner’s essay lays the foundation for “lifestyle anarchism,”
the doctrine that all the affairs of human beings within the domain of their lifestyle
choices (provided they do not harm the person or property of another), should be
managed by individuals or voluntary associations.
One method of resistance against the criminalization of lifestyle choices is jury
nullification: the ability of the jury to return a verdict of “not guilty” despite evidence of
guilt. Spooner, in An Essay on the Trial by Jury, argues that nullification can be used to
resist oppressive laws. I contend that lifestyle anarchists should support efforts by
organizations such as the Fully Informed Jury Association to educate the public of their
ability to practice jury nullification.
1
Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty," 1875, Lysanderspooner.org,
http://lysanderspooner.org/node/46, (accessed September 12, 2010), Ch. 13.

iv
TABLE OF CONTENTS
Introduction………………………………………………………………………………………………………………… 1
Chapter 1 …………………………………………………………………………………………………………………. 11
Chapter 2
Section I………………………………………………………………………………………………………… 21
Section II……………………………………………………………………………………………………….. 28
Chapter 3 …………………………………………………………………………………………………………………. 40
Conclusion ……………………………………………………………………………………………………………….. 62
Appendix I: A Direction for Further Research - Law in an Anarchistic Society ……………. 65
Works Cited ……………………………………………………………………………………………………………… 77

1
Introduction
Unless [a] clear distinction between vices and crimes be made and
recognized by the laws, there can be on earth no such thing as individual
right, liberty, or property; no such things as the right of one man to the
control of his own person and property, and the corresponding and
coequal rights of another man to the control of his own person and
property.
For a government to declare a vice to be a crime, and to punish it as such,
is an attempt to falsify the very nature of things. It is as absurd as it would
be to declare truth to be falsehood, or falsehood truth.2
Writing within the tradition of American individual anarchism, nineteenth century
legal theorist, lawyer and abolitionist Lysander Spooner makes a compelling argument in
“Vices are Not Crimes: A Vindication of Moral Liberty” against a government’s right to
punish individuals for their so-called vices.3
Vices, according to Spooner, are those
“errors which a *person+ makes in his search after his own happiness” which “imply no
malice toward others, and no interference with *another+ person or property,” while
crimes are “those acts by which one *person+ harms the person or property of
another.”4
Spooner’s argument for moral liberty outlined in “Vices are Not Crimes”
2
Lysander Spooner, "Vices Are Not Crimes: A Vindication of Moral Liberty," 1875, Lysanderspooner.org,
http://lysanderspooner.org/node/46, (accessed September 12, 2010), Ch 1.
3
For the purpose of this essay, I follow in the footsteps of David Friedman, who defines government as
“an agency of legitimized coercion…. ‘[C]oercion,’ for the purposes of this definition,[is] the violation of what
people in a particular society believe to be the rights of individuals with respect to other individuals.” “The
Machinery of Freedom: Guide to a Radical Capitalism (excerpt)” in Anarchy and the Law, ed. Edward Stringham,
40-56 (New Brunswick: Transaction Publishers, 2007), 40.
4
Spooner, "Vices Are Not Crimes,” Ch. 1.

2
forms the basis for what I have deemed “lifestyle anarchism,” the idea that in the
matter of vices, most of which have to do with an individual’s lifestyle, (such as
recreational drug use, prostitution, sodomy, gambling, seatbelt laws, and the like), the
individual has no obligation to governments and, furthermore, when governments
intervene in this domain, they should be resisted at every turn. If anarchism, as
vociferous proponent Benjamin Tucker exclaimed, is “the doctrine that all the affairs of
men should be managed by individuals or voluntary associations, and that the State
should be abolished,” then lifestyle anarchism might be described as the doctrine that
all the affairs of human beings within the domain of their lifestyle choices, whether
virtuous or vicious, and provided they harm not the person or property of another,
should be managed by individuals or voluntary associations, and that the State should
mind its own business.5
Furthermore, when the State criminalizes lifestyle choices, it ought to be resisted.
The question is, “how?” How might individuals oppose the State’s laws? Spooner’s
1852 essay on the rights of juries, titled “Trial by Jury,” provides one such course of
action:
In criminal cases, it is not only the right and duty of juries to judge what
are the facts, what is the law, and what was the moral intent of the
accused; but that it is also their right, and their primary and paramount
5
Benjamin Ricketson Tucker, Instead of a Book, The Right Wing Individualist Tradition in America, (New
York: Arno Press, 1972), 9.

3
duty, to judge of the justice of the law, and to hold all laws invalid, that
are, in their opinion, unjust or oppressive, and all persons guiltless in
violating, or resisting the execution of, such laws.6
According to Spooner, the jury has the historically constituted legal and moral authority
to acquit the accused based upon their judgment of the law even when it is evident that
the defendant has broken it. The name for this practice is “jury nullification.”
Condemned by the courts since the late nineteenth century, jury nullification, in the
manner described in Trial by Jury, can and ought to be used as a tool to resist the
State’s criminalization of lifestyle choices.
The history of jury nullification in the United States bears consideration. Until the
1895 Supreme Court case, Sparf v. United States, the right and duty of juries to judge
both the facts and the justice of the law of a criminal case was widely recognized.7
The
Sparf case narrowed the role of the jury to the judgment of only the evidence in a case.
The jury was relegated to a nominal fact-finding role.8
Indeed, in the eighteenth and
early nineteenth centuries, it was “commonly accepted that a defendant had the right
to a jury which both found facts and determined where the law should apply.”9
One
need only look to the 1794 Supreme Court case of The State of Georgia v. Brailsford, to
6
Spooner, “Trial by Jury (excerpt),” 484. Emphasis in original.
7
Sparf v. US, 156 U.S. 51 (1895).
8
Arie M Rubenstein, "Verdicts of Conscience: Nullification and the Modern Jury Trial," Columbia Law
Review 106, no. 4 (2006): 959.
9
Rubenstein, “Verdicts of Conscience,” 959.

4
find an example of the court’s prior approval of jury nullification.10
With the
concurrence of all judges on the court, Chief Justice John Jay wrote:
It may not be amiss here, gentlemen, to remind you of the good old rule,
that on questions of fact it is the province of the jury, on questions of law
it is the province of the court to decide. But it must be observed that by
the same law which recognizes this reasonable rule of distribution of
jurisdiction, you have nevertheless a right to take upon yourselves to
judge of both, and determine the law as well as the fact in controversy….
[B]oth objects are lawfully within your power and decision.11
The Sparf decision, however, reversed this tradition by a margin of seven to two. The
U.S. Supreme Court voted to uphold a conviction in a case whereby the trial judge
refused the defense attorney’s request to inform the jury of their nullification power.
Spooner’s contention in Trial by Jury is that such a reversal of tradition results in
government oppression. According to Spooner, “unless such be the right and duty of
jurors, it is plain that, instead of juries being a ‘palladium of liberty’ --- a barrier against
the tyranny and oppression of the government --- they are really mere tools in its hands,
for carrying into execution any injustice and oppression it may desire to have
executed.”12
The jury with the power to nullify is a jury that can check the power of a
tyrannical state and serve “as a safety valve against unjust application of the law.”13
It is my contention that the current criminalization and subsequent prosecution of
certain lifestyle choices considered vicious and deemed illegal should be opposed at the
level of the jury through the use of jury nullification. The question of whether resistance
to state power in the realm of lifestyle choices should be extended to more substantive
10
The State of Georgia v. Bradford, 3 U.S. 1 (1794).
11
The State of Georgia v. Bradford, 3 Dubois, 1, p.4; quoted in Isaac Grant Thompson, The Albany Law
Journal. Vol. VIII. (Albany: Weed, Parsons & Co., 1874), 203.
12
Spooner, “Trial by Jury (excerpt),” 484.
13

5
issues of economics, civil rights, and human rights is a fascinating one that I must defer
to a later study.
Spooner’s opinions and writings can be situated within the purview of American
individual anarchism in the tradition of notable nineteenth century individual anarchists
Josiah Warren and Benjamin Tucker. Born out of the triadic interactions among
Protestantism, American capitalism and an individualism animated by an expansive
physical territory, the American Anarchistic tradition, or what David De Leon has
deemed “indigenous radicalism,” is uniquely American.14
This tradition is hostile toward
the centralized state, “reject*ing+ all theories of social contract, all theories in which
there is a notion that [human beings] contract out certain freedoms in return for
prearranged guarantees that the State renders.”15
Anarchists reject the social contract
theory and claim that it is a myth and a pervasive ideology, the purpose of which is to
maintain the authority of the State.16
Individual anarchism assumes “an intimate link between personal freedom and
property” in the Lockean tradition.17
Individual anarchists part ways with Locke,
14
For more information on the conditions that led to the creation of American individual anarchism, see
David DeLeon, The American as Anarchist: Reflections on Indigenous Radicalism, (Baltimore: Johns Hopkins
University Press, 1978).
15
Irving Louis Horowitz, "A Postscript to the Anarchists," The Anarchists, (New Brunswick: Aldine
Transaction, 2005), 583.
16
Horowitz, "A Postscript to the Anarchists," 583.
17
David De Leon, The American as Anarchist: Reflections on Indigenous Radicalism, (Baltimore: Johns
Hopkins University Press, 1978), 61. For Locke’s conception of property, please see John Locke and Peter Laslett,

6
however, in the necessity of the state to preserve property. They “praise ‘the market’ as
self-sufficient, and censure government for disturbing or constraining the natural liberty
of individuals and voluntary associations.”18
It is not authority, per se, that individual
anarchists criticize, but rather, the monopolized institution of force, i.e. the State, which
is a coercive form of authority.19
According to Freidman’s definition of government in terms of coercion, the State
“claims and exercises the monopoly of crime… It forbids murder, but itself organizes
murder on a colossal scale.20
It punishes private theft, but itself lays unscrupulous
hands on anything it wants, whether the property of citizen or of alien.”21
It is the
“organization in society which attempts to maintain a monopoly of the use of force and
violence in a given territorial area… obtain*ing+ its revenue not by voluntary contribution
or payment for services rendered but by coercion.”22
Benjamin R. Tucker (1854-1939),
considered the State and the monopolies it supports the principle targets of individual
Two Treatises of Government, Student ed., Cambridge Texts in the History of Political Thought, (Cambridge:
Cambridge UP, 1988), 287-302, especially ¶27-28.
18
DeLeon, The American as Anarchist, 61.
19
Authority can and is voluntarily submitted to. I’m thinking, for example, of the voluntary formation of a
club and subsequent election of club officers to positions of authority.
20
See supra p. 1, n. 2, for Friedman’s definition of government.
21
Albert Jay Nock, On Doing the Right Thing, and Other Essays, (New York: Harper and Bros., 1921), 143;
quoted in Murray N. Rothbard, The Anatomy of the State, (New York: Libertarian-Anarchist Book Service, 1974),
16.
22
Rothbard, The Anatomy of the State, 16.

7
anarchism. With the abolition of the State, “the most offensive evils of the capitalistic
system” such as “monopoly, privilege, and inequality, originating in the lack of
opportunity” would be kept in check.23
Individual anarchism has made a rich contribution to the domain of American
letters, from Josiah Warren’s weekly periodical The Peaceful Revolutionist, published in
1833,24
to Murray N. Rothbard’s call for a radical alternative to state power in his 1973
book, For a New Liberty: The Libertarian Manifesto. Lysander Spooner was one such
radical, named after “the admiral of Sparta who destroyed the Athenian fleet, ending
the Peloponnesian War.”25
Born January 19, 1808 into a family of ardent abolitionists,26
Spooner began studying the law in 1833 under the tutelage of John Davis (1787-1854), a
lawyer, governor, United States Senator and member of the Whig party.27
According to
Charles Shively in The Collected Works of Lysander Spooner, Davis spent most of his time
out of the office, so Spooner most likely learned “most of his law from distinguished
23
Eunice Minette Schuster, Native American Anarchism: A Study of Left-Wing American Individualism,
Smith College Studies in History, (New York: AMS Press, 1970), 159. For more information on the economics of
individual anarchism, please see Benjamin Ricketson Tucker, "State Socialism and Anarchism: How Far They Agree
and Wherein They Differ," in Instead of a Book, 3-18, (New York: Arno Press, 1972), and Josiah Warren, Practical
Details in Equitable Commerce, (New York: Fowlers and Wells, 1852), and more recently Murray N. Rothbard, For a
New Liberty: The Libertarian Manifesto, (New York: Collier Books, 1978).
24
Schuster, Native American Anarchism, 97-98.
25
Lysander Spooner and Charles Shively, The Collected Works of Lysander Spooner, 6 vols. (Weston: M & S
Press, 1971), 1:15.
26
Spooner and Shively, The Collected Works of Lysander Spooner, 1:16.
27
Ibid., 1:17.

8
jurist, Charles Allen (1797-1869),” a state senator who later “served many years as Chief
Justice of the Massachusetts Supreme Court.”28
The mark of Davis and Allen’s influence
on Spooner is evident. Both men were fiercely against slavery, “conservative, judicious,
and above all, rigorously logical.”29
Although Spooner’s intellectual heritage began in
the office of these two men, his thought took a radical turn toward individual anarchism
as he grew older and began to practice law.
It is because Spooner is best identified as an American individual anarchist that my
initial focus will be on those ideas and expressions that constitute the American
tradition of individual anarchism. In chapter one, I survey the philosophy’s tenets as
exemplified by its founder Josiah Warren, specifically those ideas that Warren gleaned
from his time with Robert Owen at New Harmony, such as the then radical principle of
self-sovereignty which was borrowed by John Stuart Mill for use in his seminal work, On
Liberty.30
Having established the general doctrine of individual anarchism in chapter one, in
chapter two I turn to Lysander Spooner’s “Vices are Not Crimes: A Vindication of Moral
Liberty.” In the essay, Spooner argues that a States’ criminalization of vices is unjust and
oppressive. Spooner’s argument in “Vices are Not Crimes” forms the foundation for
28
Ibid.
29
Ibid.
30
See supra 14, notes 48 and 49.

9
lifestyle anarchism. Having accepted the argument in “Vices are not Crimes,” I turn to
Spooner’s Trial by Jury, which provides a proscription to resist oppressive, State-
imposed legislation by means of jury nullification. Nullification of bad laws by the
people is the ultimate expression of self-sovereignty and Trial by Jury outlines a juridical
method of resistance to unjust laws.
Although jury nullification has become more popular in recent years among
academics and jurors, it remains a “highly controversial phenomenon” condemned by
the courts and the press.31
For example, persons sympathetic to nullification can be
removed from the pool of potential jurors during voir dire, the process by which trial
judges and counsel interview potential jurors for suitability.32
Jurors suspected of
nullifying during a criminal trial have been held in contempt of court, arrested, and
imprisoned. Defense attorneys are also held in contempt as judges forbid arguments
made on behalf of nullification.33
Is there a way to implement nullification in the
modern jury trial despite such condemnation? In chapter three, I present two different
methods for reintroducing nullification into the criminal justice system. The first
proposal is made by Arie M. Rubenstein, a lawyer and legal theorist who suggests a
simple procedural change to the modern trial. Although I am sympathetic to
31
Rubenstein, “Verdicts of Conscience,” 960. See also Joan Biskupic, “In Jury Rooms, a Form of Civil
Protest Grows,” Washington Post, February 8, 1999.
32
33
Ibid., 988.

10
Rubenstein’s suggestion, I conclude that lifestyle anarchists should concentrate their
efforts in the support of educational organizations such as the Fully Informed Jury
Association (FIJA), a “nonpartisan public policy research and education organization.”34
Its mission is “to educate Americans regarding their full powers as jurors, including their
ability to rely on personal conscience, to judge the merit of the law and its application,
and to nullify bad law, when necessary for justice, by finding for the defendant.”35
34
"Fully Informed Jury Association – Purpose," Fully Informed Jury Association, http://fija.org/about/fijas-
purpose/, (accessed April 25, 2011).
35
Ibid.

11
Chapter One
It is a very easy matter to tell who is an Anarchist and who is not. One
question will always readily decide it. Do you believe in any form of
imposition upon the human will by force? If you do, you are not an
Anarchist. If you do not, you are an Anarchist.36
American individual anarchism was founded in the nineteenth century by Josiah
Warren, publisher of the first anarchist paper, the Peaceful Revolutionist, and founder of
the first anarchist colonies, Utopia and Modern Times.37
In 1824, Warren attended a
lecture by the famous social reformer and founder of socialism, Robert Owen. Owen
spoke of founding “an ideal community which would eventually embrace all mankind.”38
Upon hearing Owen speak, Warren moved his family to New Harmony, Indiana.
Although ultimately failing as a utopian society, New Harmony managed to produce
America’s first anarchist, Josiah Warren.39
From Owen and his experience at New Harmony, Warren derived two important
ideas which became the foundation of individual anarchism. First, “with Owen, he
believed… that the ‘emancipation of man’ was possible and human happiness only a
question of suitable social adjustment to be secured by the incorporation of true
36
Tucker, Instead of a Book, 111.
37
Schuster, Native American Anarchism, 92.
38
Ibid., 93.
39
Ibid., 93.

12
principles.”40
Individuality was one such principle and became the foundation of
Warren’s philosophy explicitly because of his observations resulting from the failings of
New Harmony. After having witnessed ‘the inadequacy of communism to correct the
evils of private property and the failure both of paternal authority and majority rule as
forms of government,” Warren realized that the chief causes of the failures at New
Harmony were “the suppression of individuality” and the “lack of initiative and
responsibility.”41
All decisions made for the “good” of the community were either made
by Owen or by the will of the majority.42
This decision-making resulted in both the
disparagement of individual liberty and the ascription of the system’s faults to “the
shortcomings of... neighbors.”43
Individual liberty, he thought, was at the root of all
future reform, for “man seeks freedom as the magnet seeks the pole or water its level,
and society can have no peace until every member is really free.”44
In order for every
person to be free, her sovereignty, or right to rule over herself, should not be infringed.
Each person should be free to use her time, her property and her person as she
40
Schuster, Native American Anarchism, 94-95.
41
William Bailie, Josiah Warren, the First American Anarchist; a Sociological Study, (Boston: Small,
Maynard & company, 1906), 5-6, http://books.google.com/, (accessed April 10, 2011).
42
Baile, Josiah Warren, the First American Anarchist, 6.
43
Ibid.
44
Ibid., 7.

13
pleases.45
Individuality and self-sovereignty, therefore, became foundational principles
to Warren’s philosophy. According to Warren,
SELF-SOVEREIGNTY is an instinct of every living organism; and it being an
instinct, cannot be alienated or separated from that organism. It is the
instinct of Self-Preservation; the votes of ten thousand men cannot
alienate it from a single individual, nor could the bayonets of twenty
thousand men neutralize it in any one person any more than they could
put a stop to the instinctive desire for food in a hungry man.46
Warren also held self-sovereignty to be inalienable, writing, that it “can never be
wrested from the multitude, nor from a single individual… and to make the attempt to
alienate it is one of the most fatal political fallacies ever attempted. A fallacy equally
fatal is that of supposing that this deciding power can successfully be vested in a
majority over a minority, or over a single person.”47
The instinct for self-preservation is
“its own authority, from which all [other authorities] are derived.”48
The doctrine of self-sovereignty became not only a foundational principle of
individual anarchism, but was also borrowed “with due acknowledgment by John Stuart
Mill in his famous essay ‘[On] Liberty,’” forming the bedrock of his liberal political
45
Ibid., 7.
46
Josiah Warren, True Civilization an Immediate Necessity, and the Last Ground of Hope for Mankind,
(Boston: J. Warren, 1863), 10. Capitalization in original.
47
Warren, True Civilization, 129-130.
48
Ibid., 131.

14
philosophy.49
Indeed, in his autobiography, Mill stated that he “borrowed from the
Warrenites their phrase, the sovereignty of the individual.”50
The second important idea Warren learned from Owen and the experiment at New
Harmony is the idea that “utility *is+ the true measure of virtue and happiness the true
end of life.”51
If utility is the measure of virtue, then turning the State’s notion of vice
on its heels, one can charge the State itself of viciousness. According to Warren,
governments, “under the plausible pretext… of protecting person and property… have
spread wholesale destruction, famine, and misery all over the earth where peace and
security might otherwise have prevailed…. They have shed more blood, committed
more murders, tortures, and crimes in struggles against each other for the privilege of
governing than society would or could have suffered in the absence of all governments
49
Bailie, Josiah Warren, the First American Anarchist, 99.
50
Ely, Richard T. "Review: [Untitled]." The American Political Science Review 2, no. 1 (1907), 126.
51
Schuster, Native American Anarchism, 95. Although Schuster does not explicitly define “utility”
according to that of John Stuart Mill, I infer the word “utility” to be so defined. See J.S. Mill, Utilitarianism,
(London: Parker, son, and Bourn, 1863), http://google.books.com/. (accessed May 20, 2011). (Mill combines the
purely hedonistic utilitarian calculus of Bentham where utility is “pleasure itself, together with exemption from
pain,” with the Aristotelian notion of virtue ethics which “assign to the pleasures of the intellect, of the feelings
and imagination, and of the moral sentiments, a much higher value as pleasures than to those of mere sensation.”
[Mill, Utilitarianism, 8, 11.+ The statement, “utility is the measure of virtue,” understood according to Mill, most
likely means that the more happiness that is produced by an act, the more virtuous the act and vice versa. The
question is whether “happiness” should be construed as a social good or an individual good. Given that Warren
and the other individual anarchists of his time place self-sovereignty and individualism as foundational principles, I
find it likely that utility, taken in this context, should be regarded as individual happiness as opposed to social
happiness. This point is important because Lysander Spooner, in Vices are Not Crimes, finds the difference
between a vice and a virtue as simply the difference “between the objects’ utility.”)

15
whatever!'"52
Therefore, governments, having “spread wholesale destruction,” lacked
virtue, measured by utility, and prevented true human happiness.
To the individual anarchists, all institutions “to which the name ‘State’ has been
applied,” have two common characteristics, the first of which is that of aggression.53
According to “the chief formulator of individual anarchism,”54
Benjamin R. Tucker,
aggression, is simply another name for government. Aggression,
invasion, government, are interconvertible [sic] terms. The essence of
government is control, or the attempt to control. He who attempts to
control another is a governor, an aggressor, an invader; and the nature of
such invasion is not changed, whether it is made by one man upon
another man, after the manner of the ordinary criminal, or by one man
upon all other men, after the manner of an absolute monarch, or by all
other men upon one man, after the manner of a modern democracy.55
The philosophies of individuality and self-sovereignty “preclude… the invasion of one
person by another, or of one body of people by another, even a majority, albeit the
invader designates itself Society *or+ the Government.”56
The State exemplifies
aggression as it maintains a monopoly on the use of force and thus maintains the right
to violate individual liberty, a right not available to anyone else.
52
Josiah Warren, “The Crimes of Governments,” in The Blast, edited by Barry Pateman, and Alexander
Berkman. (Edinburgh: AK Press, 2005), 91.
53
54
De Leon, The American as Anarchist, 65.
55
56

16
The second common characteristic of the state is “the assumption of sole authority
over a given area and all within it, exercised generally for the double purpose of more
complete oppression of its subjects and extension of its boundaries.”57
In other words,
the State is the institution with a monopoly of violence (or aggression) over a given
territory. The State maintains this territory by the use of force, disallowing its citizens to
withdraw their consent and their property from its domain.
The powers of any state are considered crimes against individual liberty by most
individual anarchists for three important reasons. First, the powers are “not based upon
valid contracts…. *T+he present should not be bound by the agreements of the past.
Specifically, *in the case of the United States’ Constitution,+ since all of those who had
signed the Constitution were now dead, this moldy document should be null and void.
[The Constitutional contract] violate[s] the supremacy off the present.”58
Secondly, the
State confers privileges to those corporations and individuals with whom it is connected.
These privileges take the forms, for example, of “monopolies in patents, copyrights,
legal benefits, limited banking, land restrictions, and tariffs.”59
When the State grants
privileges such as those mentioned above, the side effect is that it creates an unequal
57
58
DeLeon, The American as Anarchist, 76. See Lysander Spooner, "No Treason: The Constitution of No
Authority," (1867), http://lysanderspooner.org/node/44, for his argument against the legitimacy of the United
States’ Constitution.
59
DeLeon, The American as Anarchist, 76.

17
playing field for those individuals and companies that are not connected to it.60
Thirdly,
“the state [is] unjust because people were never given the choice of accepting or
rejecting its powers.”61
This third reason is an explicit rejection of the contract theory of
political obligation which is common to traditional political philosophy. Political
obligation is the idea that the individual, by virtue of her consent, whether explicit or
not, has an obligation to respect and obey the laws and edicts of the State. The contract
theory of political obligation states that a contract was made, actually or tacitly,
between all persons forming a society in a given territory which resulted in the
formation of the State. Rousseau, for example, held that the State “originated in a
contract, and that the people of to-day [sic], though they did not make it, are bound by
it.”62
Anarchists “deny that any such contract was ever made or assumed ” and even if it
had been made or assumed at some earlier point of human history, “it could not impose
a shadow of obligation on those who had no hand in making it.”63
Therefore, the
60
Ibid.
61
Ibid.
62
Tucker, Instead of a Book, 33. For examples of arguments for political obligation by virtue of implicit
consent, please see A.D.M. Walker, “Political Obligation and the Argument from Gratitude,” Philosophy and Public
Affairs, 17, 191-211, and John Rawls, “Legal Obligation and the Duty of Fair Play,” Law and Philosophy, ed. S. Hook,
(New York: New York University Press, 1964). For a rebuttal, see A. John Simmons, “Gratitude,” in Moral Principles
and Political Obligations, (Princeton, N.J.: Princeton University Press, 1979), 158 – 90, and A. John Simmons, “The
Principle of Fair Play” and “Fair Play and Political Obligation: Twenty Years Later” in Justification and Legitimacy:
Essays on Rights and Obligations, (Cambridge: Cambridge University Press, 2001), 1-42.
63

18
“inherent rights and duties” are not obligations unless they have been “consciously and
voluntarily assumed.”64
Although Warren would not deny the “necessity for restraining criminals and
preventing aggression” against persons and property, “it is easy to show that the State
proves itself incompetent and uncertain in this its own prescriptive field…. Its function
can be carried out with greater efficiency and certainty by a system of free association, a
kind of protective insurance.”65
According to the ideas of individual anarchism, all
business now carried on by government activity should be free to be conducted by
voluntary, non-compulsory, cooperative agencies, or by private enterprise."66
To the
individual anarchists, the protection of property, the persecution of criminals and
administration of justice, defense, and education could be carried out in the same
manner as “numberless difficult and socially necessary functions without subordinating
the citizens to arbitrary power.”67
64
Ibid., 24.
65
Bailie, Josiah Warren, the First American Anarchist, 104. It is important to note that currently, so-called
“private enterprise” is constituted under Federal and State laws, whereby corporate entities gain “individual
rights.” This is hardly a “private sector” by Warren’s standards.
66
Bailie, Josiah Warren, the First American Anarchist, 104. For an in-depth critique of the governmental
monopoly over the use of force and a speculative vision of the functionality of a voluntary, competitive, non-
governmental system of law, courts and other so-called “public goods,” please see Anarchy and the Law: The
Political Economy of Choice, Independent Studies in Political Economy, “Section One: Theory of Private Property
Anarchism,” ed. Edward P. Stringham, (New Brunswick: Transaction Publishers, 2007), 1-192.
67

19
From the idea of individual sovereignty follows what Warren has deemed “the
freedom to differ.” According to Warren, “opposition to *the absolute right of self-
sovereignty] is as harmless as would be the pelting a beggar with gold! Dissent itself not
being antagonistic, but coinciding with it, who can avoid being in harmony with it
practically, whatever he may be theoretically?”68
For “*e+ven the denial of it illustrates
and confirms it.”69
Therefore, because dissent is actually in agreement with the notion
of self-sovereignty, there is a “harmonic warrant for [the] FREEDOM TO DIFFER – a point
never otherwise attained in human affairs.”70
The individual anarchists’ precepts of individuality, self-sovereignty, utility as a
measure of virtue, and the freedom to differ, all together shape and affirm the
anarchistic moral code – “mind your own business.” 71
According to Tucker,
“interference with another’s business is a crime and the only crime, and as such may
properly be resisted.”72
Therefore, the use of force by governments to suppress vices,
(defined in Spoonarian terms as “the errors which a *person+ makes in his search after
68
Warren, True Civilization, 143.
69
Ibid.
70
71
Benjamin Ricketson Tucker, "State Socialism and Anarchism: How Far They Agree and Wherein They
Differ," in Instead of a Book, 3-18, (New York: Arno Press, 1972), 15.
72
Tucker, “State Socialism and Anarchism,” 15.

20
his own happiness”), is itself a criminal act.73
The individual anarchists view liberty as
the panacea to societies’ ills and “recognize the right of the drunkard, the gambler, the
rake, and the harlot to live their lives until they shall freely choose to abandon them.”74
Human beings must be allowed to decide for themselves in all matters, “even in so
delicate a matter as that of the relations of the sexes.”75
Anarchists defend and uphold
voluntary associations of any sort, accepting associations between members of any sex
or number of partners. However, given their position on the State, it is no wonder that
they consider “legal marriage and legal divorce… equal absurdities.”76
Ultimately, individual anarchism in general, and lifestyle anarchism in particular, can
be summed up by founder Josiah Warren’s proclamation – a pronouncement echoed
and elucidated by Lysander Spooner in “Vices are not Crimes” – “Freedom for you to do
(at your own cost or within your own sphere) what I may consider wrong, foolish, or
inexpedient, is the vital principle of peace and all progress; for your experiments may
prove that you are right.”77
73
Spooner, "Vices Are Not Crimes," Ch. 13.
74
Tucker, “State Socialism and Anarchism,” 15.
75
Ibid., 15.
76
Ibid., 15.
77

21
Chapter 2
Section I
The object aimed at in the punishment of crimes is to secure, to each and
every man alike, the fullest liberty he possibly can have --- consistently
with the equal rights of others --- to pursue his own happiness, under the
guidance of his own judgment, and by the use of his own property. On
the other hand, the object aimed at in the punishment of vices, is to
deprive every man of his natural right and liberty to pursue his own
happiness, under the guidance of his own judgment, and by the use of his
own property.78
Lysander Spooner’s essay, “Vices are Not Crimes: A Vindication of Moral Liberty,”
attempts to make a clear distinction between those acts that are “immoral” and those
that are “illegal.” Immoral or vicious actions are defined, at the beginning of the essay,
as “the errors which a *person+ makes in his search after his own happiness” which
“imply no malice toward others, and no interference with their persons or property.”79
Vices are juxtaposed against crimes, which Spooner defines as “those acts by which one
man harms the person or property of another.”80
According to Spooner, a person who
commits a vice has no criminal intent and does not purposefully encroach upon
78
Spooner, "Vices Are Not Crimes," Ch. 13.
79
Ibid., Ch. 1.
80
Ibid.

22
another’s person or property.81
To criminalize vice, therefore, is to “falsify the very
nature of things.”82
Spooner’s essay is a mere twenty-two chapters, each chapter consisting of two or
three short paragraphs. Having established the definitions of vices and crimes in the
first chapter, he demonstrates in the next twenty-one, generally speaking, the difficulty
of distinguishing between virtue and vice. Additionally, he affirms that it is up to the
individual and not an authority or government, to determine which of her acts are
vicious or virtuous. Indeed, the very idea that actions are virtuous or vicious is called
into question by Spooner who notes that in many cases, differences between the two
are merely a matter of difference, temporality or degree.
According to Spooner, every human action tends either toward or against
happiness.83
However, because every human being is different and has a right to be
different, actions that tend toward happiness in one individual (virtues) may tend
toward unhappiness in another person (vices).84
Similarly, acts that tend toward
happiness in a person at one time can also tending toward unhappiness in the same
81
82
Ibid.
83
Ibid., Ch. 2.
84
Ibid.

23
person at a different time.85
The point Spooner is trying to make is that some virtues
are indistinguishable from vices for different people at different times.
Furthermore, as humans, we are continually driven to study the very things that
make us happy or unhappy. Spooner calls this behavior the “constant study to which
each and every *person+ … is necessarily driven by the desires and necessities of his own
existence.”86
The study of virtues that lead to happiness, therefore, is uniquely
personal.87
Each person “must necessarily form his own conclusions; because no one
else knows or feels, or can know or feel, as he knows and feels, the desires and
necessities, the hopes, and fears, and impulses of his own nature, or the pressure of his
own circumstances.”88
Each person, therefore, must be able to judge for himself what
makes him happy or not, for only the individual is capable of deciding this, for himself.
Moreover, more often than not, the difference between virtue and vice is a matter
of “quantity and degree,” adding “to the difficulty, not to say the impossibility, of any
one’s – except each individual for himself – drawing any accurate line… between virtue
and vice.”89
Thus, if the freedom to experiment, “to inquire, investigate, reason,…
85
Ibid.
86
Ibid., Ch. 3.
87
See supra p. 14, n. 50 for an explanation of utility, understood in individualistic terms, as Spooner would
likely interpret it.
88
89
Ibid., Ch. 4.

24
judge, and ascertain” what constitutes virtue or what constitutes vice, is deprived to
each individual by the coercive acts of government, then the very right to “’liberty and
the pursuit of happiness, is denied” as well.90
The fundamental idea at which Spooner is driving is that each person must be free
to learn for herself.91
Any denial of this right by authorities, by those who claim to know
better, is the height of arrogance and a violation of human liberty. According to
Spooner, “to learn it, he must be at liberty to try all experiments that commend
themselves to his judgment. Some of his experiments succeed, and, because they
succeed, are called virtues; others fail, and because they fail, are called vices.”92
Spooner’s claim is consistent with Warren’s idea that “utility is the true measure of
virtue.”93
The difference between virtue and vice is simply a matter of the object’s
utility and is one more reason for preventing coercive authority from determining what
is virtuous and what is vicious. However, even if it were possible for authority to
determine what actions are virtuous or vicious in general, Spooner would continue to
object against coercion because, as noted above, that determination can only be
accurately determined through self-study by each individual.
90
Ibid., Ch. 5.
91
Ibid., Ch. 6.
92
Ibid.
93
See supra 14, n. 50.

25
But what of an act that is repeatedly shown to be vicious, due to millennia of human
trial and error? Should not the State or other authority prevent it from occurring?
Spooner vehemently disagrees with this suggestion, writing,
Who are the men who have the right to say, [we have tried this
experiment, and determined every question involved in it? We have
determined it, not only for ourselves, but for all others? As to all those
who are weaker than we, we will coerce them to act in obedience to our
conclusion?] Certainly there are none such. The men who really do say it,
are either shameless impostors and tyrants, who would stop the progress
of knowledge, and usurp absolute control over the minds and bodies of
their fellow men; and are therefore to be resisted instantly, and to the
last extent.94
In other words, no one can claim to know everything there is to know about a certain
act, whether it tends toward happiness or toward misery in every conceivable case.
Those persons who claim such knowledge actually prevent the acquisition of knowledge.
Spooner’s next claim is that every human being has many vices and that for a
government to be consistent, it would have to criminalize all of them which is an
“utterly impracticable” thing for it to do.95
Governments usually only propose to
“punish some one [sic], or at most a few, of what *they+ esteem… the grossest of
them.”96
Of this decision by governments, Spooner asks, by “what right has any body
[sic] of men to say, ‘The vices of other men we will punish; but our own vices nobody
94
95
Ibid., Ch. 11.
96
Ibid.

26
shall punish? We will restrain other men from seeking their own happiness, according to
their own notions of it; but nobody shall restrain us from seeking our own happiness,
according to our own notions of it? We will restrain other men from acquiring any
experimental knowledge of what is conducive or necessary, to their own happiness; but
nobody shall restrain us from acquiring an experimental knowledge of what is conducive
or necessary to our own happiness?’"97
The arguments against the State criminalizing so-called vices, in “Vices are Not
Crimes,” are the foundation for lifestyle anarchism. Choices made by individuals
specifically relating to their chosen lifestyles, whether those lifestyles are virtuous or
vicious, should not be illegal. Furthermore, if a vice is made illegal by the prevailing
government, whether dictatorship or democracy, the law preventing it should be
opposed. The question then, is how can lifestyle anarchists oppose laws regulating
lifestyle choice? There are several methods of resistance that can be pursued by
adherents of lifestyle anarchy, each having varying rates of success and failure, such as
the formation of Political Action Committees (PACs) to influence legislatures or outright
refusal to comply with the law, à la Thoreau’s Civil Disobedience.98
97
See supra 14, n. 50 for an explanation of utility and happiness, understood in individualistic terms, as
Spooner would likely interpret it.
98
Henry David Thoreau, “Civil Disobedience,” 1849, http://thoreau.eserver.org/civil.html, (accessed May
24, 2011). Thoreau’s essay is a response to being imprisoned for declining to pay the poll tax. The poll tax, he
thought, contributed to a government that supported slavery. Thus, in 1846, Thoreau declined to pay the tax and
was arrested and imprisoned for so doing. He was released after one night when a relative settled the debt

27
One such form that has experienced a recent resurgence in popularity among the
citizenry and academics, despite outright hostility by the judiciary and other agents of
the State, is jury nullification - the right of the people to judge their own liberties against
the power of the government. Jury nullification can be used as a means to resist the
State’s interference within the domain of lifestyle choice. Lysander Spooner’s Trial by
Jury makes a persuasive argument that the jury has not only the ability but also the right
to nullify oppressive laws.
without his knowledge or consent. (Wendy McElroy, “Henry David Thoreau and ‘Civil Disobedience,’ Part 1,”
Future of Freedom Foundation, July 25, 2005, http://www.fff.org/freedom/fd0503e.asp, accessed May 24, 2011).

28
Section II
The power to punish carries all other powers with it. A power that can, of
itself, and by its own authority, punish disobedience, can compel
obedience and submission, and is above all responsibility for the character
of its laws. In short, it is a despotism.99
Spooner’s book Trial by Jury was written in 1852, at a time when the historical right
to judge the justice of law was under attack by the United States’ judiciary. The book
can be seen as a reaction against what Spooner perceived to be an attempt to curtail
the role of the jury. In the first note of chapter one in his book, he cites the following
case as an example of this encroachment. In 1851, three men named Scott, Hayden,
and Morris were charged with aiding in the rescue of an escaped slave from the custody
of a United States deputy marshal.100
Their actions were in violation of the so-called
“Fugitive Slave Law” and their trial was heard in the United States District Court for the
District of Massachusetts.101
During the jury selection process, potential jurors were
asked by the “United States district judge Peleg Sprague, in paneling three separate
juries,” whether they were “prejudiced against the government.”102
Specifically, they
were asked whether they “*held+ any opinions upon the subject of the Fugitive Slave
law… which [would] induce [them] to refuse to convict a person indicted under it, if the
99
Lysander Spooner, “Trial by Jury (excerpt),” In Anarchy and the Law: The Political Economy of Choice,
edited by Edward Stringham, 484-503. (New Brunswick: Transaction Publishers, 2007), 488.
100
Spooner, “Trial by Jury (excerpt),” 496, n. 1.
101
Ibid.
102
Ibid. Italics in original.

29
facts set forth in the indictment, and constituting the offense, [were] proved against [the
accused], and the court direct*ed+… that the law [was] constitutional?”103
The jurors
were asked the aforementioned question separately from one another; “and those who
answered unfavorably for the purposes of the government, were excluded” from
serving on the jury.104
Jurors that held opinions against the Fugitive Slave law were summarily ejected from
consideration for jury duty, ostensibly for prejudice. However, according to Spooner,
the reason that the courts asked each potential juror the question was that the “Fugitive
Slave Law… was so obnoxious to a large portion of the People, as to render a conviction
under it hopeless, if the jurors were taken indiscriminately from among the people.”105
The government, therefore, was not only deciding the ideology of the jury through the
selection process, but was also effectually dictating the morality and constitutionality of
the law. According to Spooner, “the only principle upon which these questions are
asked, is this – that no man shall be allowed to serve as juror, unless he be ready to
enforce any enactment of the government, however cruel or tyrannical it may be.”106
103
Spooner, “Trial by Jury (excerpt),” 496, n. 1. Italics in original.
104
Ibid.
105
Ibid.
106
Ibid., 497, n. 1.

30
The example also demonstrates that, at minimum, judges knew that jurors would
nullify against their instructions, and were willing to eject potential jurors that found the
law questionable. If not, there would be no need to question the potential jurors of
their acceptance of the law or potential prejudice against the government.
In his opening chapter, Spooner writes, “it is not only the right and duty of juries to
judge what are the facts, what is the law, and what was the moral intent of the accused;
but that it is also their right to judge the justice of the law and to hold all laws invalid,
that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or
resisting the execution of, such laws.”107
The right of nullification was enshrined in English common law during the Bushell
case of 1670 and eventually came to inform American criminal trials. According to
Rubenstein, “Bushell, a juror who had voted to acquit two prominent Quakers of
unlawful assembly despite ‘plenam et manifestam evidentiam,’ had been fined by the
trial court.”108
Bushell appealed the ruling which resulted in Chief Justice Vaughan to
rule “that jurors [could not] be punished for their verdicts.”109
For two centuries, this
ruling empowered jurors to nullify when demanded by conscience.”110
Spooner,
107
108
109
Ibid., “Plenam et manifestam evidentiam” translates roughly to “full and manifest evidence” of the
crime. Therefore, the Quakers were acquitted against the evidence.
110

31
however, writes in Trial by Jury, that the right to nullify was actually enshrined in the
Magna Carta of 1215.111
Regardless of the exact time that nullification was preserved in
English common law, it is clear that the English tradition “directly informed early
American criminal trials,” as “both the right to a jury trial and its associated nullification
power were viewed as vital to ensuring liberty.”112
Jefferson, Adams, Hamilton, and
other “Founders” believed that jurors had not only the right to judge the fact of the case
in the matter of criminal law, but also the right to judge of the morality of the law
itself.113
Soon after the ratification of the U.S. Constitution, Supreme Court Justice John
Jay, in The State of Georgia v. Brailsford, “told the jury that, while the court was deemed
to be the best adjudicator of the law, both the facts and the law were in the province of
the jury.”114
Only within the last century has this right been questioned. In this section,
I explain Spooner’s argument for the right to jury nullification as a check on oppressive
law and suggest that it can be used today by lifestyle anarchists to reform the
criminalization of so-called “vices,” one nullification at a time.
111
See Lysander Spooner, An Essay on the Trial by Jury, (Boston: John P. Jewett and Company, 1852), 20 –
50, and Steve J. Shone, “Lysander Spooner, Jury Nullification, and Magna Carta, 22 Quinnipiac L. Rev. 651, 669
(2004)” in Rubenstein, “Verdicts of Conscience,” 963, n. 20.
112
Rubenstein, “Verdicts of Conscience,” 964. See n. 28 in Rubenstein’s “Verdicts of Conscience,” 964, for
an exhaustive list of court cases and academic essay’s arguing this point.
113
Ibid.
114
Horowitz, Irwin A., and Thomas E. Willging, "Changing Views of Jury Power: The Nullification Debate,
1787-1988," Law and Human Behavior 15, no. 2, Social Sciences and the U.S. Constitution (1991): 167. See, also,
Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794), G. Simson, “Jury nullification in the American system,” Texas Law
Review 54 (1976): 488-504.

32
Before it is possible to thoroughly explain Spooner’s argument for jury nullification
in Trial by Jury, it is important to explain both what the jury trial and its object are.
“Anciently called ‘trial per pais,’ *or+ ‘trial by the country,’” the jury trial is simply a
manner of putting the accused before the country for judgment.115
“The object of this
trial ‘by the country,’ or by the people” as opposed to a trial by the State, is to provide
protection against oppression.116
Potential jurors are selected randomly in a manner
that “precludes any previous knowledge, choice, or selection of them, by the
government.”117
This selection process insures two things. First, the process insures
that the sample of jurors constitutes a general sampling of the country representing, on
balance, a fair sampling of all opinions, classes, genders and races.118
Second, the
selection process insures that the jurors do not comprise a jury of the government’s
“partisans or friends,” which could be used in order to “maintain its own laws, and
accomplish its own purposes.”119
Spooner presumes that a tribunal selected in this
manner would “agree to no conviction except such as substantially the whole country
would agree to, if they were present, taking part in the trial.”120
Furthermore, because
115
Spooner, “Trial by Jury (excerpt),” 484 - 485.
116
Ibid.
117
Ibid.
118
Ibid., 485.
119
Ibid.
120
Ibid.

33
conviction requires all jurors to agree unanimously, it follows that no conviction can
occur unless it is clear that there has been a “violation of such laws as substantially the
whole country wish to have maintained.”121
There is one other condition for a true trial by country; the right and duty of the jury
to nullify oppressive law. Nullification does not begin and end with merely judging the
law, however. Spooner argues that the jury ought to have the right and duty to “judge
of and try the whole case, and every part and parcel of the case, free of any dictation or
authority on the part of the government.” Spooner cited the following four juridical
components over which the jury should judge. First, the jury has the right and duty to
judge the justice of the law. If the law is oppressive, violates the rights and liberties of
the citizens, or is merely “obnoxious” (as was the case of the Fugitive Slave Laws), the
jury has the right and duty to acquit the accused.
If the government dictates to the jury the law they are to enforce without scrutiny
by the jury, the jury no longer tries the accused by their own standards or their own
“judgments of their rightful liberties,” but rather by the standard put forth by their
government, which becomes the benchmark for the people’s liberties.122
Furthermore,
when the standards of the trial are mandated by the government, the results of the trial
121
Ibid.
122

34
are mandated as well.123
The effect is that the “government determines what are its…
powers over the people, instead of the people’s determining what are their own
liberties against the government.”124
Second, the jury has the right to “judge whether there really be any such law, (be it
good or bad,) as the accused is charged with having transgressed,” and if so, whether it
is being properly applied given the circumstances.125
Third, the jury must judge whether the law has been improperly explained to them
by the court, for when a government can mandate an explanation of the law, they can
dictate the law itself, because laws can change meaning, depending on how they are
explained.126
.
Finally, the jury must be able to judge the laws of evidence. This reason is that “if
the government can dictate to a jury the laws of evidence, it can not only shut out any
evidence it pleases, tending to vindicate the accused, but it can require that any
evidence whatever, that it pleases to offer, be held as conclusive proof of any offence
whatever which the government chooses to allege.”127
To reiterate, in Spooner’s view,
123
Ibid.
124
Ibid.
125
Ibid.
126
Ibid.
127
Ibid., 487.

35
the jurors must be able to judge the entire case - its morality, its constitutionality, and
its legality. In this way, the “authority *is+ vested in the people” and “the people have all
liberties, (as against the government,) except such as substantially the whole people
(through a jury) choose to disclaim; and the government can exercise no power except
such as substantially the whole people (through a jury) consent that it may exercise.”128
There are a few common objections to the right of the jury to judge the whole case
which Spooner answers in Trial by Jury. The first objection can be stated thus: The
government in an American-styled democratic republic is elected by the will of the
people and its members are sworn to uphold the constitutional law instituted by the
people. The actions of the government, therefore, can be considered the actions of the
people. To allow a jury (which also represents the people) to invalidate the actions of
the government is thus to “array… the people against themselves.”129
Yet, there is no
contradiction, according to Spooner, nor any “arraying” of the people against
themselves by requiring that the laws must pass “the ordeal of any number of separate
tribunals, before it shall be determined that they are to have the force of the laws.”130
The Constitution of the United States concurs. It provides for five different tribunals;
the House of Representatives, the Senate, the executive, the judiciary and the jury.
Each acts as a “check and balance” against the other to ensure the authority of the law
128
Ibid. Emphasis mine.
129
Ibid., 487.
130
Ibid., 487-88.

36
before any person can be punished for violating it.131
The agents of the State are
“merely the servants and agents of the people” and must submit their laws or
“enactments” to the jury which is comprised of the people and is the most democratic
of all the aforementioned checks and balances. Therefore, the laws must be submitted
to a jury “before [the agents of the state] carry them into execution by punishing any
individual for transgressing them.”132
But what of the ability of the people either to change the laws of the government by
“the influence of discussion” or, failing that, the “exercise of the right of suffrage?” This
is the second objection against jury nullification, i.e. that there is no need for the jury to
judge of the whole case as the people have both these options available in the event of
governmental abuse. In the first case, the ability of the people to discuss and persuade
the government to change the law, Spooner insists that discussion, on its own, can do
nothing to affect change of oppressive law, unless it is backed by resistance, for “tyrants
care nothing for discussions that are to end only in discussion.”133
Discussions are like
“idle wind” to tyrants.134
In the second case, “suffrage,” according to Spooner, “is
equally powerless and unreliable.”135
First of all, suffrage occurs intermittently and the
131
Ibid., 488.
132
Ibid.
133
Ibid., 489.
134
Ibid.
135
Ibid.

37
oppressions must be tolerated in the periods between elections.136
Without the ability
of the jury to judge the entire case, many of the accused could be convicted of
oppressive laws while the people wait for the next opportunity to exercise their right of
suffrage. Even then, there is “no guaranty for the repeal of existing laws that are
oppressive, and no security against the enactment of new ones that are equally so.”137
Secondly, there is no guarantee that the next government will be any less oppressive
than the last. Furthermore, even if the newly elected government is honest and less
tyrannical than the last, the tyranny had already happened and the damage already
incurred.
A third objection, persistent to this day, against jury nullification is that it is “absurd
that twelve ignorant men should have power to judge of the law, while justices learned
in the law should be compelled to sit by and see the law decided erroneously.”138
Spooner answers this objection by pointing to the fact that the power of the jury is not
granted to them based upon their supposed ability to judge the application of the law
better than the justices.139
Rather, it is granted on the “ground that the justices are
136
Ibid.
137
Ibid.
138
Lysander Spooner and Victor S. Yarros, Free Political Institutions: Their Nature, Essence, and
Maintenance: An Abridgment and Rearrangement of Lysander Spooner's Trial by Jury, (London: C.W. Daniel, 1912),
http://dwardmac.pitzer.edu/anarchist_archives/bright/spooner/fpichap4.html, (accessed May 8, 2011), Ch. 4.
139
Spooner and Yarros, Free Political Institutions, Ch. 4.

38
untrustworthy,… exposed to bribes,… fond of authority, and are also the depended and
subservient creatures of the legislatures;… to allow them to dictate the law would not
only expose the rights of parties to be sold for money, but would be equivalent to
surrendering all the rights of the people unreservedly into the hands of the legislature to
be disposed of at its pleasure.”140
Judges and legislators are exposed to all manner of
temptations to disregard the liberties of the people in favor of money, prestige and
fame.141
On the other hand, even if the jurors are subject to illicit influence, the very
method whereby jurors are chosen by lot (as described above), precludes that all twelve
“will prove dishonest. It is a supposable case that they may not be sufficiently
enlightened to know and do their whole duty in all cases whatsoever; but that they
should all prove dishonest is not within the range of probability. A jury therefore
insures to us (what no other court does) the first and indispensible requisite in a judicial
tribunal -- integrity.”142
Spooner’s argument is that all twelve persons on a jury will never be sufficiently
corrupted as to convict an innocent person. However, his argument is open to criticism
that only one juror need be corrupted to acquit a guilty person and confound the
judicial process. This may be true. However, the power of one corrupted juror is the
140
Ibid.
141
Ibid.
142
Ibid.

39
power to acquit against the evidence in but one case. It is “not a power of absolute
decision in all cases.”143
Furthermore, “it is a power to declare imperatively that a
*person’s+ property, liberty, or life shall not be taken from him; but it is not a Power to
declare imperatively that they shall be taken from him.”144
Such a power may stymie
the judicial process from time to time, but unlike the power of a judge or government, it
is not a power capable of obstructing liberty through the imposition of oppressive laws
on all (or most) of the people, all the time.
Having looked at a few objections and Spooner’s answers, the main thrust of the
argument can be reiterated in Spooner’s words:
The trial by jury, then, gives to any and every individual the liberty, at any
time, to disregard or resist any law whatever of the government, if he be
willing to submit to the decision of a jury, the questions, whether the law
be intrinsically just and obligatory and whether his conduct, in
disregarding or resisting it, were right in itself. And any law which does
not, in such a trial, obtain the unanimous sanction of twelve [people],
taken at random from the people, and judging according to the standard
of justice in their own minds, free from all dictation and authority of the
government, may be transgressed and resisted with impunity, by
whomsoever pleases to transgress or resist it.145
Spooner argues, therefore, that the right of the jury to judge of the whole case is
necessary for the people to resist the oppressions of their government and to prevent
the punishment of the innocent. Although he puts forth a solid argument in Trial by Jury,
143
Ibid.
144
Ibid. Emphasis mine.
145

40
the claim that the jury has the right to nullify and not just the ability, is presently
contentious, but merits further study. Despite the disagreement over this point among
legal scholars, however, I believe that nullification should be pursued by lifestyle
anarchists as a method of resistance against the State’s laws that criminalize lifestyle
choices, which, as Spooner shows in “Vices are Not Crimes,” are oppressive. In Chapter
three, I consider recent scholarship by Arie M. Rubenstein, a lawyer and legal theorist,
suggesting a juridical method to reintroduce jury nullification back into the courtrooms.
In addition, I look at the recent successes of a grassroots organization, the Fully
Informed Jury Association (FIJA), and their efforts to educate the people of their ability
to nullify oppressive laws.

41
Chapter 3
Having established that lifestyle anarchism is a tenable position given Spooner’s
argument in “Vices are Not Crimes,” and that jury nullification is a means to resist State
laws that affect lifestyle choice, in this chapter I survey two methods of informing jurors
of their ability to nullify. The first proposal, as suggested at the end of Chapter 2, is
made by Arie M. Rubenstein, a contemporary lawyer and legal theorist. Rubenstein’s
proposal is a well-reasoned position based upon the Supreme Court’s reevaluation of
the function of the jury as a means to prevent oppression by the government. This
precedent may demonstrate a potential willingness by the Court to take another look at
nullification. Although I agree with Rubenstein and find the implementation of his
proposal a worthy goal, I argue below that its reliance upon review by the Supreme
Court places it well outside the realm of short-term acceptance. Instead, I suggest for a
second proposal, that efforts underway by grassroots organizations such as the Fully
Informed Jury Association (FIJA) to educate the public are much more tenable as a
proposed program of resistance. Given this claim, I look at the current practices of FIJA
and suggest lifestyle anarchists offer their support to such organizations.
Before I assess these two positions, it is important to address the current state of
nullification in the United States to explain what nullification’s proponents are up

42
against. As I note in the Introduction to this essay, nullification is almost universally
condemned by the Federal courts and viewed as a form of “vigilante justice” by
prosecutors.146
Although federal courts recognize the jury’s ability to “acquit against
the evidence,” jurors are “instructed in the strongest terms that they cannot.”147
For
example, section 1.04 of the “Criminal Pattern Jury Instructions” prepared by the
Criminal Pattern Jury Instruction Committee of the United States Court of Appeals for the
Tenth Circuit, provides guidance for instructing the jury. According to the committee,
the following instructions are suggested to be given to the jury prior to trial:
You, as jurors, are the judges of the facts. But in determining what
actually happened—that is, in reaching your decision as to the facts—it is
your sworn duty to follow all of the rules of law as I explain them to you.
You have no right to disregard or give special attention to any one
instruction, or to question the wisdom or correctness of any rule I may
state to you. You must not substitute or follow your own notion or
opinion as to what the law is or ought to be. It is your duty to apply the
law as I explain it to you, regardless of the consequences.148
The above example of juror instruction demonstrates the court’s insistence that
jurors judge only the facts and not the law. Jurors who demonstrate a
propensity toward nullification are questioned and can be removed from the
jury. Typically, however, by the time the jury has been assembled, the
146
J Rubenstein, “Verdicts of Conscience,” 960, and Biskupic, "In Jury Rooms, a Form of Civil Protest
Grows." See, also, supra p. 3, n. 8.
147
148
Criminal Pattern Jury Instructions, Prepared by the Criminal Pattern Jury Instruction Committee of the
United States Court of Appeals for the Tenth Circuit, “Duty to Follow Instructions,” Criminal Pattern Jury
Instructions, 9, http://www.ca10.uscourts.gov./downloads/pji10-cir-crim.pdf (accessed May 18, 2011).

43
examination of potential jurors by the judge and counsel, known as voir dire, has
removed those persons who admit to either knowledge of nullification or to the
possibility of voting their conscience.149
During voir dire, judges interview
potential jurors to “determine whether they are suitable for trial” and “are
instructed to question jurors as to whether they are prepared to apply the law as
given.”150
Potential jurors who survive voir dire and are promoted to the jury face further
challenges. According to Nancy J. King in “Silencing Nullification Advocacy,”
Jurors exposed as holdouts or advocates of nullification in the jury room
are being dismissed, replaced, and sometimes prosecuted. The Second
Circuit Court of Appeals recently declared that trial judges have the duty
to dismiss jurors who intend to nullify. One state judge published a virtual
‘how to’ guide for other trial judges who wish to suppress nullification
advocacy in their courthouses.151
149
Voir dire is the process of examination by the judge and counsel (the prosecution and defense) during
jury selection. Examination may either be directed toward the entire pool of prospective jurors or toward
individuals. (Rubenstein, “Verdicts of Conscience,” 986.)
150
151
Nancy J. King, "Silencing Nullification Advocacy inside the Jury Room and Outside the Courtroom," The
University of Chicago Law Review 65, no. 2 (1998): 435. See, also, Frederic B. Rodgers, “The Jury in Revolt? A
‘Heads UP’ on the Fully Informed Jury Association Coming Soon to a Courthouse in Your Area,” The Judges Journal
35, no. 3 (1996).

44
Jurors with knowledge of nullification may not only be ejected from the courtroom, but
may also face criminal prosecution for violating the “jurors’ oath,” “subject[ing] [jurors]
to prosecution for perjury.”152
Furthermore, a majority of justices today hold the opinion that nullification is a
recipe for chaos and anarchy.153
In the United States v. Dougherty (1972), a case held in
the United States Court of Appeals for the District of Columbia Circuit Court, Judge
Leventhal, writing on behalf of the majority, summarized the prevailing opinion as
follows:
This so-called right of jury nullification is put forward in the name of
liberty and democracy, but its explicit avowal risks the ultimate logic of
anarchy…..The statement that avowal of the jury's prerogative runs the
risk of anarchy, represents, in all likelihood, the habit of thought of
philosophy and logic, rather than the prediction of the social scientist.
But if the statement contains an element of hyperbole, the existence of
risk and danger, of significant magnitude, cannot be gainsaid.154
Similarly, Judge Sobeloff, writing for the United States Court of Appeals for the Fourth
Court, confirmed the aforementioned prejudice against nullification. Having been
152
Rodgers, “The Jury in Revolt.” The following Michigan statute provides an example of the juror’s oath
“for the trial of all criminal cases. ‘You shall well and truly try, and true deliverance make, between the people of
this state and the prisoner at bar, whom you shall have in charge, according to the evidence and the laws of this
state; so help you God.’” (Jonathan Belcher, "Religion-Plus-Speech: The Constitutionality of Juror Oaths and
Affirmations under the First Amendment," William & Mary Law Review 34, no. 1, (1992): 299.)
153
See supra p. 9, n. 30. Further evidence that the majority of judges hold this view can be logically
derived from the fact that there have been no majority opinions dissenting from the landmark Sparf case over the
last century. If this were not the prevailing attitude among justices in the United States, we would expect many
examples of nullification advocacy throughout case law.
154
United States v. Dougherty , 473 F.2d 1113, 154 U.S. App. D.C. 76, 1972 U.S. App. LEXIS 8684 (1972),
[**56].

45
convicted of mutilation of Government records, destruction of Government property,
and interference with the administration of the Selective Service System, the
defendants, who admitted to the evidence of the crimes, argued in their appeal that
“the trial judge should have informed the jury that it had the power to acquit the
defendants even if they were clearly guilty of the offenses, or at least, that the court
should have permitted their counsel so to argue to the jury.”155
That the trial judge refused either to allow defense counsel to argue on behalf of
nullification, or to instruct the jury of their right to do so, demonstrates the
unwillingness of judges to allow nullification into their courtrooms. Judge Sobeloff,
writing for the majority in the above appeal echoes Leventhal’s opinion on nullification:
To encourage individuals to make their own determinations as to which
laws they will obey and which they will permit themselves as a matter of
conscience to disobey is to invite chaos. No legal system could long
survive if it gave every individual the option of disregarding with impunity
any law which by his personal standard was judged morally untenable.
Toleration of such conduct would not be democratic, as appellants claim,
but inevitably anarchic.156
The question, then, considering the current state of nullification in the United States,
is how nullification can be reintroduced into the criminal justice system so that those
155
United States v. Moylan, 417 F.2d 1002, 1009, 4th Cir. 1969, LEXIS 10411 (1969), [*1004].
156
United States v. Moylan, [*1134]. Judge Sobeloff seems to equate anarchy with chaos. However,
anarchy does not necessarily lead to chaos, especially in the domain of the court system. For an alternative view,
please see Appendix I, included below, which argues that no government is necessary for a fully functioning court
system to exist and flourish within an anarchistic society.

46
persons sympathetic to lifestyle anarchism may resist the State.157
It is here where I
turn to the two proposals mentioned above.
The first proposal is suggested by Rubenstein in “Verdicts of Conscience:
Nullification and the Modern Jury Trial.” In his paper, Rubenstein approaches the
subject of nullification from the point of view of a lawyer and legal scholar, arguing that
recent Supreme Court rulings have reconceived the role of the jury in terms of its
function, as opposed to the “formalist precedent of Sparf.”158
He argues that “recent
Supreme Court precedent has reevaluated the role of the jury and in the process has
expanded the possibilities for nullification.”159
In the essay, he does not deny the validity
of the formalist precedent, but rather argues that the Supreme Court, given their recent
reevaluation of the jury, may be open to a “conservative proposal for expanding the role
of verdicts of conscience.”160
He cites the 1968 Supreme Court decision of Duncan v.
Louisiana as one example of this change. In the case, the Supreme Court was to decide
whether “the right to a jury trial was ‘among those “fundamental principles of liberty
157
For more on lifestyle anarchism, please see Chapters 1 and 2 of this essay.
158
Formalism, according to Rubenstein, is a “method of legal reasoning where ‘the mere invocation of
rules and the deduction of conclusions from them is believed sufficient for every authoritative legal choice.’”
(Rubenstein, “Verdicts of Conscience,” 965.) Please see Part II of Rubenstein’s essay for his argument that the
Supreme Court has “reconceptualized” the role of the jury in terms of functionalism which is more compatible with
nullification than the “formalist” doctrine of the 19
th
Century. (Rubenstein, “Verdicts of Conscience,” 975-974.)
159
160
Ibid.

47
and justice which lie at the base of all our civil and political institutions.”’”161
Prior to
this case, the Court’s “construction of the jury role ‘hing*ed+ on the formalist belief that
there [was] very little left to do once the general rule [was] stated by the judge and the
facts [were+ found by the jury.’”162
In Duncan v. Louisiana, the Supreme Court decided
the issue in terms of the jury’s function as opposed to 19th
century formalist beliefs. The
Court “perform[ed] an investigation of the functions and goals of a jury trial,”163
and
“observ*ed+ that ‘a right to jury trial is granted to criminal defendants in order to
prevent oppression by the Government…. Fear of unchecked power… found expression
in the criminal law in this insistence upon community participation in the determination
of guilt or innocence.’”164
The Court’s willingness to look beyond the formalist Sparf decision to the jury’s
function “suggest*s+ that aspects of the jury trial should be evaluated based on the
extent to which they can ‘prevent oppression by the Government’ and expand
opportunities for ‘community participation in the determination of guilt or
innocence.’”165
Therefore, Rubenstein asserts, nullification should be given another
161
Rubenstein, “Verdicts of Conscience,” 976, quoting Duncan v. Louisiana, 391 U.S. at 149.
162
Rubenstein, “Verdicts of Conscience,” 967, quoting Darryl K. Brown, “Jury Nullification Within the Rule
of Law,” Minnesota Law Review 81, (1997): 1160.
163
Ibid., 976.
164
Ibid., quoting Duncan, 391 U.S. at 155-56.
165
Ibid., 976.

48
look in terms of its “pragmatic results,” as a “safety valve against unjust application of
the law” and a “control on unjust applications of both legislative and executive
power.”166
Rubenstein concludes that the "debate over nullification revolves largely around the
question of whether juries should be informed of [their] power to nullify."167
Generally,
he suggests, there are two juridical recommendations made by proponents of
nullification to expand the role of the jury, both of which he finds objectionable, opting
instead for a “compromise position” below.168
The first recommendation is to allow the defense to argue directly for nullification, a
position which stands in contrast to current “professional canons of ethics,” such as
those issued by the American Bar Association.169
Rubenstein dismisses this
recommendation because it “would radically alter the scope of the modern criminal
trial.”170
If the defense could argue for nullification, he suggests, the state could argue
against it. Furthermore, the defense and state could also argue for and against moral
166
Rubenstein, “Verdicts of Conscience,” 977, 973.
167
Ibid., 985 and 985, n. 204.
168
Ibid., 987.
169
Ibid., 988. The following quote is from the 1980 ABA Standards for Criminal Justice: "’A lawyer should
refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting
issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the
consequences of the jury's verdict.’ ABA Standards for Criminal Justice Standard 4-7.8 (2d ed. 1980) (Defense
Function Standards),” in Rubenstein, “Verdicts of Conscience,” 988 n. 204.
170

49
blameworthiness, enlisting the expert testimony of ethicists or “expert philosophers.”171
Rubenstein’s criticism of such a possibility is not based upon a conclusion that it is
undesirable, but rather that it is simply unrealistic “to expect such radical change.”
Radically altering the scope of the modern jury trial would never pass Supreme Court
scrutiny and would thus derail any attempt at reintroducing nullification.172
The second recommendation that Rubenstein rejects is for juries to receive
instruction about their ability to nullify. Advocates of this recommendation suggest that
juries should be given clear instructions that they “serve… a dual role of fact finding and
of evaluating the application of the law in the instant case.”173
Although agreeing that
the jury should be instructed in their ability to judge both the facts and the law,
proponents have recommended different instructions ranging from those written by
John Adams,174
to instructions currently employed by Maryland, “whose constitution
explicitly permits jury nullification.”175
Rubenstein rejects the proposal to instruct juries
of their power of nullification as well, for two reasons. First, instructing the jury of their
ability to nullify, without accompanying evidence introduced by counsel, could result on
171
Ibid., 989.
172
173
Ibid., 989.
174
“'It is not only [a juror's] right, but his duty ... to find the verdict according to his own best
understanding, judgment and conscience, though in direct opposition to the direction of the court.’” (Rubenstein,
“Verdicts of Conscience,” 990, quoting John Adams, The Works of John Adams, vol. II, (Boston: Charles C. Little &
James Brown, 1850), 253-55.
175

50
a decision “based only on the (insufficient) information” presented to it.176
Andrew
Leipold in “Rethinking Jury Nullification,” presents the following example which explains
the problem: “When jurors acquit a clean-cut student charged with drug possession
because they fear a conviction will ruin his future, they may not know that the same
student has had frequent disciplinary problems, had a stash of drugs in his car when
arrested (which was suppressed because of an illegal search), and is otherwise a
character not worthy of sympathy.”177
Secondly, Rubenstein argues that the “trial
courts are unlikely to experiment with the instruction.”178
The bias against nullification
within the judicial system is such that “it is unlikely that the courts will accept a
nullification instruction.”179
Rubenstein’s proposal is a compromise, not of the two proposals mentioned above,
but of the second proposal, to instruct the jurors of their power to nullify, and the
current instruction employed by the courts that the jurors are to judge only the facts.
176
Ibid., 991.
177
Andrew D. Leipold, "Rethinking Jury Nullification," Virginia Law Review 82, no. 2 (1996): 303. I humbly
suggest that this problem would not be a result of allowing defense to argue for nullification. Instead, it would be
a result of the court disallowing evidence to be admitted that has a direct bearing on a nullification judgment. The
problem, therefore, is a result of the courts’ treatment of nullification, and not directly related to the proposition
Rubenstein dismisses. One remedy for such a problem would be to allow the jury to judge the evidence fully, as
per Lysander Spooner’s admonition discussed in Chapter 2.
178
179
Ibid.

51
Specifically, Rubenstein proposes to “neither inform jurors of their power to nullify, nor
to explicitly instruct them that they are forbidden to do so.”180
He suggests that
Jurors would be told that they will be given the law, will find the facts,
and should apply the law to the facts, but neither jury instructions nor
counsel at argument would tell the jurors that they must adhere to the
law where it violates their moral sense. Voir dire examination of jurors
would be slightly modified: Judges would attempt to ascertain not
whether a potential juror would adhere to instructions regardless of
conscience, but rather whether a potential juror would approach the case
with an open mind.181
Rubenstein claims that his compromise position avoids the problems of the other two in
the following two ways. The first is that because his suggestion is not significantly
different from the current approach toward nullification, the number of cases nullified
by jurors [would] not be significantly altered.182
Nullification would only occur in those
cases where the juror’s consciences were significantly troubled and were “obstacles to
conviction,” eliminating the criticism that nullification would result in a much greater
number of acquittals.183
Secondly, Rubenstein maintains, because defense attorneys
would not be allowed to argue for nullification, no major changes to evidence or witness
testimony would take place either.184
“The only procedural change,” he writes, “would
180
Ibid.
181
Rubenstein, “Verdicts of Conscience,” 991-92.
182
Ibid., 992.
183
Ibid.
184
Ibid.

52
be the excising from jury instructions of language imposing an absolute duty to follow
the law regardless of conscience.”185
Voir dire would also be slightly altered. Instead of the judge ascertaining whether or
not the venire-member would “adhere to instructions regardless of conscience,” the
judge would ascertain whether or not a “potential juror would approach the case with
an open mind.”186
Although Rubenstein’s proposal appears feasible, given recent Supreme Court
precedent, and avoids the aforementioned problems related to both the allowance of
defense to argue for nullification and instructing the jury about nullification, I believe
that Rubenstein is open to the same criticism he levies against the aforementioned
common recommendations for nullification. Specifically, I have in mind the charges that
“it is unrealistic to expect such a radical change,” and that the “courts are unlikely to
experiment with this instruction” (or in the case of Rubenstein’s compromise proposal,
an abandonment of current jury instruction). Even though his proposal appears modest
in terms of procedural changes at the level of jury instruction and voir dire examination,
at bottom, Rubenstein is arguing that the courts ought to discard a century of legal
tradition informing current instruction practices and voir dire examination. Such a
change is likely to be met with significant resistance by prosecutors, many of whom
185
Ibid.
186
Ibid.

53
consider nullification a form of ”vigilante justice,” and judges who see nullification as “a
recipe for anarchy.”187
The reform, therefore, would need to take place at the level of
the Supreme Court which is possible given its reformulation of the role of the jury in
terms of its function. However, to do so would require the intervention of a legal team
to challenge the current status of nullification through a series of appeals all the way to
the Court. Although possible, whether or not such a challenge is probable remains to be
seen.
Given that Rubenstein’s proposal could likely take years (perhaps decades?) to wind
its way through the myriad of lower courts before finally arriving at the door of the
Supreme Court, I turn to a second proposal by which lifestyle anarchists may introduce
nullification back into the judicial system . This method is neither juridical nor legislative
in nature, and thus may not be properly deemed a “proposal” at all. It is rather a means
of informing the people of their right to nullify and is embodied in the work of
organizations such as the Fully Informed Jury Association (FIJA), “a national, nonprofit
organization promoting the right of jury nullification.”188
According to the organization’s
website, FIJA
[w]orks to restore and protect the role of the juror, and the institution of
Trial by Jury. We sponsor educational seminars for legal professionals,
publish commentary, develop and present Amicus briefs when the
187
Biskupic, "In Jury Rooms, a Form of Civil Protest Grows," and Rodgers, "The Jury in Revolt?”
188
King, “Silencing Nullification Advocacy,” 434.

54
institution of the jury is at issue, provide interviews to the media, speak
at functions and in classrooms, and of course distribute educational
literature. Our newsletter The American Juror is published quarterly. We
articulate that the authority of the jury is the right that protects all other
rights.189
With a yearly proposed budget of $140,000 received “from individual donors,
foundations, and membership dues,” FIJA policy “has been to ensure that the
educational message is spread as widely as possible.”190
The organization was
conceived by Larry Dodge, former Chair of the Montana Libertarian party. At the 1989
National Libertarian Party convention in Philadelphia, Dodge led a discussion group of
forty-four persons, organizing the National FIJA the following summer.191
Soon
thereafter, state-level associations began to sprout up around the country. The
organization’s focus, in recent years, has been on conducting media campaigns which
has “suppl[ied] prop kits to a number of television series and film producers.”192
Additionally, FIJA “works with writers and media professionals to ensure that an
accurate message on the authority of the jury reaches the public.”193
189
Iloilo Marguerite Jones, “About FIJA,” Fully Informed Jury Association, http://fija.org/about/, (accessed
May 16, 2011).
190
“Fully Informed Jury Association - History,” Fully Informed Jury Association, http://fija.org/history/
(accessed May 16, 2011).
191
Ibid.
192
Ibid.
193
Ibid.

55
Given that judges and prosecutors are screening for jurors knowledgeable of
nullification during voir dire, FIJA has published a brochure written by Clay S. Conrad,
lawyer and author of Jury Nullification: The Evolution of a Doctrine, entitled “Doing Your
Best as a Trial Juror: Surviving Voir Dire.” In the essay, Conrad presents strategies that
potential jurors can utilize during voir dire in order to “survive jury selection” and be
seated on the jury.194
Conrad writes that potential jurors can be removed from the
venire, “the group of citizens from which the jury is chosen,” in two ways.195
First,
venire-members can be removed “for cause” which means that the venire-member is
“legally ineligible to serve.”196
Examples of legal ineligibility include insanity, a felony
record, lack of citizenship and most pertinent to nullification, being “unable or unwilling
to apply the law.”197
The other method of removing venire-members is through the use
of “peremptory strikes.” A peremptory strike is generally used when either party to the
case feels that the venire-member “would be unlikely to vote for their side.”198
Peremptory strikes can take place “for any reason other than race or gender,” and are
generally limited in number depending on the jurisdiction.199
According to Conrad, “the
194
Clay S. Conrad, "Doing Your Best as a Trial Juror: Surviving Voir Dire," FIJActivist Special Educational
Supplement (2009), http://fija.org/download/BR_YYYY_surviving_voir_dire.pdf, (accessed May 15, 2011).
195
Conrad, “Surviving Voir Dire,” ii.
196
Ibid.
197
Ibid.
198
Ibid.
199
Ibid.

56
prosecutor and the defense attorney get to question venire-members about their
attitudes, opinions and behaviors in order to ‘intelligently’ exercise peremptory
challenges.”200
To survive voir dire, therefore, venire-members must not only appear
willing to apply the law, but must also “appear neutral and fair to both sides” while
being truthful, “but neutral.”201
Conrad is explicit in his charge to readers to be honest
as dishonesty during voir dire may “constitute perjury or obstruction of justice.”202
Conrad gives some general rules to guide the venire-member and suggests that
potential jurors should never volunteer information to questions above and beyond
what is asked of them. They should “never elaborate on *their+ answers to voir dire
questions, or volunteer answers to questions that have not been asked.”203
For
example, a question typically asked by counsel during examination is “’What magazines
or newspapers do you subscribe to or read regularly?’” Conrad advises the summoned
juror to cancel her magazine subscriptions prior to voir dire to prevent having to lie. He
writes, it is “time to cancel some subscriptions – at least temporarily! And time to start
reading Popular Mechanics, PC World, Money and People. Don’t mention U.S. News &
200
Ibid.
201
Ibid., iii.
202
Ibid.
203
Conrad, “Surviving Voir Dire,” iii.

57
World Report or The Economist. People interested in world events tend to be
opinionated independent thinkers.”204
Conrad also gives potential jurors advice on their appearance. He urges the
summoned juror to cut her hair (especially if she has dreadlocks), cover tattoos and
remove body jewelry. “Come into court looking like a respectable, law abiding middle-
class American…. Wear clean, business casual clothes….. Bring work related reading
material such as a technical manual, a paperbook novel, or a non-issue magazine (not
High Times or Sports Shooting!).”205
Furthermore, because very few people are excited
to be forced into jury duty, the venire-member should “act bored and a smidgen
annoyed that *she+ must waste *her+ time on a case *she+ could not care less about.”206
Conrad’s advice does not end with voir dire. Once in the courtroom, jurors should
not “mention nullification during the jury service unless the ‘not guilty’ votes are in the
majority,” because, as mentioned above, the judge may still question and then remove
jurors believed to be nullifying.207
If questioned by the judge, Conrad recommends
204
Ibid.
205
Ibid., High Times is a popular, pro-cannabis magazine.
206
Ibid.
207
Conrad, “Surviving Voir Dire,” iii – iv.

58
expressing doubts about the “reliability of the evidence, the witnesses, or the police.”208
Such doubts may lead the judge to return the juror to the deliberations.209
Moreover, Conrad asserts, if some members of the jury refuse to vote to acquit,
then the juror should vote to hang the jury.210
He writes, “you have a right to hang – you
do not have a right to compromise someone else’s life away. Vote your conscience even
if other jurors browbeat you…. Principles cannot be compromised – only abandoned….
Hang with pride. A hung jury sends a message to the prosecutor and judge about the
acceptance of the law, and a series of hung juries sends a message to the legislature.”211
Although FIJA has enjoyed success educating the public over recent years about
their ability to nullify, some advocates have been harassed or arrested, causing FIJA to
make suggestions about distributing literature. One such advocate named Frank W.
Turney, was arrested and convicted in Alaska for jury tampering.212
Although Turney
“regularly demonstrated in support of FIJA both inside and outside the Fairbanks
courthouse between 1990 and 1994,” his arrest and subsequent conviction were due to
his activities during the trial of Merle Hall, a friend of Turney’s accused of illegally
208
Ibid., iv.
209
Ibid.
210
A hung jury is a jury that cannot agree upon a verdict.
211
Conrad, “Surviving Voir Dire,” iv.
212
Turney V. Alaska, 936 P.2d 533; 1997 Alas. LEXIS 46 (1997).

59
possessing a concealed firearm. According to a 1997 appeal to the Supreme Court of
Alaska, Tourney “approached several jurors and attempted to inform them about jury
nullification.”213
In addition to publicizing FIJA’s telephone number (1-800-TEL-JURY),
“his advocacy also included signs, leaflets, discussion, and demonstrations.”214
His jury
tampering charges concerned his contacts with three of the jurors whom he approached
both inside and outside the courthouse.215
Two of the jurors, Rice and Paluck, called
FIJA number and heard a message to the effect that as Americans, they had the right to
judge both the law and the facts “regardless of the instructions from the judge because
jurors can not [sic] be punished for their verdict.”216
Upon hearing the message, jurors
Rice and Paluck changed their vote from guilty to not-guilty, setting the stage for the
arrest of Turney for jury tampering. Turney appealed his conviction all the way to the
Alaska Supreme Court who eventually affirmed the conviction in 1997. At issue was not
whether Turney had the First Amendment right to distribute FIJA materials but rather
the way in which he proceeded to do so. This lead to further recommendations from
FIJA regarding pamphleteering and other educational efforts.
213
Turney V. Alaska, [**4]
214
Ibid.
215
Ibid., [**6]
216
Quote from the automated message one hears when calling “1-800-Tel-Jury,” in Turney v. Alaska,
[**4], n 1.

skrod_thesis

Recommended

Recommended

More Related Content

Similar to skrod_thesis

Similar to skrod_thesis (13)

skrod_thesis