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April 19, 2014

"Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States"

The title of this post is the title of this notable new article by Suja Thomas now available via SSRN which should be of special interest to fans of juries. Here is the abstract:

When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government.  It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today.  When America was founded, juries functioned differently — as an integral part of government in both England and the colonies.

This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury.  Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check.  So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority.  Of course, the jury has arguably not fallen or has risen through other changes.  This topic will be introduced later in this chapter and developed in a future chapter.  As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.

April 19, 2014 at 05:01 PM | Permalink


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Thanks for finding this. I wonder if Mr. Bill will point out where the Constitution gives the Executive the right to indict.

Upon reading it, a new thought hit me having to do with incorporation.

"Because the Fourteenth Amendment has not been interpreted to incorporate the grand jury, grand juries are not required in most states." (p 1238)

It is ironic that the states required the Bill of Rights before they would ratify the Constitution and now argue some of the Bill of Rights don't apply to them. But in so doing, didn't they enter into a "Bill of Rights Contract" they are bound by? IOW, under contract law, maybe the all of the Bill of Rights are incorporated since the states affirmed them through ratification.

Posted by: George | Apr 20, 2014 10:40:28 PM


I'm not sure that an inquisitorial style criminal justice system would actually be ruled unconstitutional, but undoubtedly the power to make such a change lies with Congress not with the courts themselves. Just as Congress and the state legislatures could allow the ability to bring criminal prosecutions on private motions Congress can choose to empower the executive to be the sole authority capable of prosecuting charges in the name of the United States.

Certainly many forms of an inquisitorial system would not pass constitutional muster at the federal level, as a defendant can demand both that a grand jury indict and that a petit jury convict. But I see no constitutional impediment to switching to a system where the judiciary were in charge of investigating cases and presenting them to those juries. (Whether that would be a good move is an entirely separate question).

Posted by: Soronel Haetir | Apr 21, 2014 12:10:30 AM

Do away with mandatory minimum statutes, prohibit the use of acquitted conduct at sentencing, and hold prosecutors to their Brady and discovery obligations and all will be well with the world once again. Or at least, juries will play a more vibrant role.

Posted by: Carmen Hernandez | Apr 21, 2014 11:13:08 PM

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