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120 | Conspiracy’s Discontents factors exists. For example, it is possible that the ethnic identity of defendants in organized crime cases serves as a signal to the jury that the defendants are guilty—juries may be more willing to assume guilt if the defendant’s last name ends with a vowel, despite any instruction that a judge might give to the contrary.82 We know from our history that juries were often prejudiced against people of color.83 But there is more reason to be concerned today about prejudice in the context of terrorism prosecutions. First, changes in jury selection have helped ameliorate the problems in other areas. Government can no longer use preemptory challenges to keep African Americans off juries, for example. This means that an African American or Latino defendant in an urban area has a good chance of being judged by a jury of his peers. In contrast, the numbers of Arab or South Asian Americans or Muslim Americans are still so low that getting adequate representation in a jury pool is unlikely. Moreover, popular images of these groups as propagated in the media are so negative that many members of the jury pool from other backgrounds will experience some subtle prejudice.84 Indeed, these images are so powerful that the prejudice may be unconscious85 —all the more dangerous for being something that people will not recognize and acknowledge in the jury selection process. Another problem is the asymmetry between the starkness of the opinions expressed and what the government actually has to prove in conspiracy cases. The government merely has to prove agreement and some overt act. Here, again, the problem of low base rates undermines the jury’s deliberative role. The vast majority of people with extreme political opinions are no more likely than anyone else to act on them. Indeed, it is possible that those with extreme opinions vent their frustration through expressing those sentiments , thereby dissipating anger that might otherwise fester into violence. The calming effect of such venting in the public square is one pragmatic justification for democracy. In a conspiracy case, however, evidence of the large cohort of inactive people is either irrelevant to the charge of agreement or ineffective for the defense. Even if it is unlikely that the defendants would have followed through with the plot, legally this does not rebut the prosecution’s case. As a matter of law, the likelihood of follow-through is irrelevant. Mere agreement is enough, and the law says that moments of ambivalence do not rebut proof of a general underlying agreement. In any case, information about base rates of violence is less vivid and therefore less persuasive than the extreme opinions of this defendant, which the jury gets to hear. Here, as elsewhere, operating from individual cases instead of base rates can skew outcomes. A jury may Conspiracy’s Discontents | 121 also reason backward from the claimed object of the conspiracy to the proof of agreement. Suppose that the government has charged the defendants with conspiring to destroy JFK Airport, as a recent case alleges. Cognitive psychologists tell us that people tend to find proof more persuasive when the potential harm is horrific. Surrendering to this syndrome, the jury may adopt the government’s preventive rationale, and reason that it is prudent to remove even a small risk of a major disaster. In this way, allegations of political violence turn our constitutional commitment to avoiding false positives on its head. “Better safe than sorry” no longer means voting to acquit to avoid imprisoning the innocent; instead, it means that prevention of harm justifies a guilty verdict even on thin evidence. Affirmative defenses to conspiracy are nearly always futile. Our current law of entrapment requires that the defendant have no predisposition toward crime. Here, though, the defendant’s opinions also play a role in confirming that the defendant has a predisposition. Moreover, the law of entrapment also permits a wide range of government enticement. One of the few cases where the courts found entrapment involved an informant’s effort to persuade participants at a rehab clinic to engage in drug trafficking.86 The Supreme Court condemned the government’s effort to troll for drug suspects among people sincerely committed to kicking the habit. The modest standard set by this case, however, does not adequately regulate the more subtle government enticement at work in the political violence context. Controlling Conspiracy Despite these risks, in the hands of wise and effective prosecutors conspiracy charges can...

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