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November 2, 2009

A potent pitch for potent jury power after Apprendi

This new article by Jenny Carroll available via SSRN, which is titled ""Of Rebels, Rogues and Roustabouts: The Jury's Second Coming," makes a robust pitch for giving juries even more power in a post-Apprendi world.  Here is the article's abstract:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate.  This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

November 2, 2009 at 08:50 AM | Permalink


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Doug: You are working overtime to get this message of jury empowerment/nullification out. This article and the "Hip Hop Theory of Justice" both promote what I consider to be dangerous, irresponsible, positions. I don't want "Martin Luther King jurors" as espoused by Paul Butler to issue protest verdicts of "not guilty" in all cases in which " a defendant is accused of possessing drugs for his or her own use or selling a small quantity to another consenting adult."

The problems with such an approach are legion. Because a defendant's prior criminal history is unknown to the jury, they have no idea whether their "protest verdict" will facilitate the release of a dangerous criminal to re-offend. Moreover, this last election showed that America is blessed with a healthy democracy that is more than capable to make broad, policy decisions concerning the direction of our criminal justice system in a sober and more rational method. There is good reason the Supreme Court did not give its moral stamp of approval to the concept of jury nullification.

Posted by: mjs | Nov 2, 2009 9:30:34 AM

Every criminal lawyer has seen cases where the proof of guilt was technically unimpeachable, but the result nevertheless manifestly unjust. The discretion of careerist prosecutors is not an adequate bulwark against this possibility, nor is the grace of fickle and politically disincentivized clemency authorities. Further, I do not find myself able to agree with the suggestion that the legislative process provides sufficient checks/balances/accountability in the area of criminal punishment. To the contrary, the process is weighted heavily to one side, and becoming more so, as prison workers' unions and private prison proprietors and their investors increasingly lubricate the system with lobbying money.

Although are some downsides to jury nullification, it has a long, largely admirable lineage in Anglo-American law, and I for one would welcome its second coming!

Posted by: Observer | Nov 2, 2009 10:11:33 AM

In my view, the strongest reason to be against a great role for juries is because you favor/support the status quo of criminal justice decision-making in which jurors have serious involvement in less than 1% of all significant criminal justice decisions. (Roughly 95% of all guilt determinations come via pleas AND jurors have no role at all in deciding important 4th, 5th, 6th and 8th Amendment issues).

I am not at all pleased with the status quo, and I think it is a failure of having true democracy come to criminal justice adjudication in case-by-case situations.

Posted by: Doug B. | Nov 2, 2009 10:20:45 AM

Jury nullifcation fans by-and-large assume that the defendant will be the beneficiary, but that (1) will not and (2) should not uniformly be the case.

(1) Where the evidence against the defendant is borderline, but he has been shown (for example, by prior bad acts evidence) to be a low-life or dangerous character, should the jury feel free to ignore the law requiring proof beyond a reasonable doubt, and substitute its "nullification" version of proof that's close enough for a bad man?

(2) The clearest prominent examples of the results of jury nullification are the 1950's and 1960's acquittals of KKK members who had been shown beyond a reasonable doubt to have done dreadful things to black victims, up to and including murder, but who got acquittals or hung juries from jurors who viewed themselves as free to disapprove the law, or disapprove the prosecution, or the prosecutor, or whatever struck their fancy.

Moral of story: Don't be so sure that, once the wild card of nullification is played, you'll like the results.

Posted by: Bill Otis | Nov 2, 2009 8:20:28 PM

My personal opinion is that juries should be advised that they have a legal and moral obligation to follow the law; however, I believe that they should also be expressly informed of the fact that they cannot and will not incur any type of civil or criminal liability as a result of the verdict that they reach.

Posted by: JC | Nov 2, 2009 10:03:24 PM

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