WHY PROSECUTORS SHOULD SUPPORT FIJA LEGISLATION
Although all of these arguments exude apparent concern for the public good, opposition to "FIJA" legislation has been so peculiar to prosecutors that one must wonder if they are the only people who are capable of discerning what's good for the public, or at least are the only ones who care.
Otherwise, it might seem that they "protesteth too much", thereby suggesting that unspoken, self-serving motives might underline at least part of their opposition. Discovery of such motives, if they exist, might begin by taking notice of the fact that most of the objections listed above make it clear that prosecutors tend to believe that jurors are too gullible, stupid, inexpert, emotional, manipulable or untrustworthy to make good use of their nullification power, and therefore should not be told about it. Beyond mere elitism and condescension, such a belief indicates rejection of the entire concept of trial by jury, an institution where the whole idea is supposed to be for ordinary citizens, complete with all their foibles, to decide justice for the accused. On the other hand, to object to FIJA legislation on grounds like those listed, then in the same breath claim to be a great believer in and supporter of the institution of trial by jury, indicates either a total lack of understanding of that institution and its role in the judicial process, or utter disingenuousness. Assuming that most prosecutors understand full well the role and function of the jury, only those who openly criticize and reject it are then exempt from the question, "How can you claim to be an advocate of trial by jury, then argue that jurors cannot be trusted with complete knowledge about their rights, powers, and responsibilities?" From here, the search for motives which explain prosecutors' opposition to FIJA legislation can follow the same trail which prosecutors are so fond of using to establish the probable motives of accused persons (very often for the benefit of a jury): good old-fashioned self interest.
Could the "real reason" for their opposition be reluctance to share the power of "prosecutorial discretion" with trial jurors? And if so, might that reluctance reflect apprehension that if juries routinely exercised their power to nullify, it could mar the"win-loss" record of a prosecutor, particularly important if he or she has political ambitions? If, as is probable, juries would tend to nullify most often in cases involving victimless crimes, upon which many prosecutors rely for building an impressive-looking record (much as many boxers take on a series of inferior opponents, for exactly the same reason) would it not be expectable for prosecutors to protect their bread and butter by opposing FIJA legislation? It is not the purpose of this paper to discuss whether or under what circumstances it is morally acceptable for a prosecutor to violate the public trust vested in him or her by sacrificing justice for an accused individual upon the altar of personal power or political ambition; indeed, it makes sense to assume that most people try to optimize their opportunities every day in every way, and we should expect no different from the nation's prosecutors. The purpose of this paper is to show that all of the objections to FIJA legislation listed at the outset of this discussion are groundless. In fact, they're worst than groundless: when prosecutors make such arguments to legislative committees, they not only impede improvement in the delivery of justice by the justice system, but they actually aggravate whatever worries they may entertain about their careers. Let's have a closer look: Starting with the most frequent assertion, "FIJA legislation would result in anarchy!" There are a variety of ways to phrase this allegation, including ''We are a nation of laws, not of men!" and "You can't just let twelve people undo the work of the legislature, and take the law into their own hands", etc. And at first blush, it sounds like bona fide apprehension. But let's face it: anarchy we've already got, if what we mean by the term is widespread disregard for the law. Any sociologist, myself included, or any political historian can easily detail the circumstances which generate anarchy, and we'll tell you it has never been attributed to juries, no matter what instruction they have been given. Rather, anarchy happens whenever there is a wide gap between the laws of the land and the will of the people. In democratic societies, it happens whenever special-interest legislation veers too far and too long from the public interest, to the point where the citizens either cannot or will not obey the law any longer -- which is increasingly the case in these United States. The knee-jerk, authoritarian reaction is to pass increasingly oppressive laws, coupled with ever more draconian punishments. But more top-down control and coercion are not real answers. They merely fuel the fires of social disintegration and provide still more excuses for building a police state. A "nation of law" may seem an attractive cliche until one considers how terrifying such a nation can be when the citizens have no way to say "no" to bad law--as any survivor of the Third Reich or the Soviet Union can attest. The answer to "anarchy", then, is not to continue disinforming citizen jurors that they must apply the law as given by the judge, "like it or not", but to inform them about their right to bring in a general verdict. And it makes no sense to "worry" that juries will "take the law into their own hands". After all, whose law is it, anyway? Law making may be delegated to the legislative branch, but the law "belongs" to the citizens. And if citizen jurors deem a given piece of legislation to be a poor tool for the dispensation of justice, perhaps even so bad that it deserves to be broken and thrown away because it's been doing more harm than good, does it make sense to lie to them telling them they've got to use it anyway? Much better to be glad that the law is "in the hands" of a group of ordinary people, who are going to have to live with their verdict, and admit to them that the law is a guideline to consider in their search for a verdict which makes good common sense and expresses their consensual sense of justice.
By candidly informing jurors that their sense of justice is even more important than the letter of the law, the way is paved for juries once more to perform the political function that the nation's founders intended for them -- to check and balance the actions of the legislature, and provide lawmakers with unpaid (i.e., true public) opinion on the law, so that they will be able to make needed repairs -- tailoring the law to reflect the will of the people. History shows that the result of this process has been increased public respect for the law, which is the exact opposite of "anarchy".
The benefit of such ongoing feedback for prosecutors is that it would allow them to enforce and apply the laws of the land with full confidence that the public is behind them. Further, it would enable them to exercise their own power of prosecutorial discretion guided by public sentiment concerning this or that law, and to know that doing so is a legitimate part of their job description--and that their political future is as secure as their sensitivity to the public will. True, after passage of FIJA legislation, there could follow a short period of adjustment, because laws enjoying little public support would take a beating at the hands of juries. But once the "fit" ware found, the frequency of jury nullification, and whatever frustration with juries prosecutors might have felt during the adjustment period, would subside, and remain negligible from then on.
How about the likelihood of dangerous criminals "walking"? This can happen (and could continue to happen) if and when a jury is confused by the instructions given it, or by the law itself, or by the evidence--or when a jury has to make hard moral choices, and makes the wrong one. But juries are known for their conservatism, for their sincere intention to do a conscientious job for the sake of their own sense of justice and desire to protect their communities. Giving them more and better information is unlikely to make them go "soft on crime." In fact, research has shown that when juries perceive a defendant to be dangerous, they tend to be harsher than the judge would have been if the verdict and/or sentencing ware left to the bench. After all, who is going to suffer the consequences if violent person is returned to their community?
One of the big problems with our criminal justice system today is that too many violent persons returned to the streets--but almost always by one or another government agency--hardly ever by a jury. So to argue that "fully informed" juries would somehow go berserk and let bad guys loose on the streets is the flimsiest of "paper tiger" objections to FIJA legislation. Additionally, FIJA legislation would enable both prosecutors and defenders to do their plea (and/or sentence) bargaining with the jury, in open court. Fully informed juries would nearly always be willing to find truly harmful defendants guilty at whatever level the evidence would support -- if not guilty as charged, then guilty of a lesser included offense. In this way, all sides would be satisfied that justice had been served, and the conviction record of prosecutors might actually improve. Even if, for political or other reasons, a particular prosecutor might feel compelled to "overcharge" a particular defendant, the downside risk of losing the case by aiming too high would be minimized if the jury ware fully informed.
As an additional a side benefit, plea or sentence bargaining by the defendant with the jury, in open court, would protect prosecutors from public suspicion that behind-the-scenes deal making on their part had subverted the justice process. How about hung juries, mistrials, appeals, and cost to the taxpayers? First, let's be hesitant to put a limit on the price we would or should be willing to pay for justice. There are very few government services for which most people would willingly pay more than they would pay for the dependable delivery of justice.
Most people realize that unless the justice system works, nothing else can work, either: justice is prerequisite to the enjoyment of our rights to life, liberty, property, and pursuit of happiness. But there's more: hung juries, especially if they seem to be a frequent result whenever a particular law is the basis for arrest (or for a civil complaint) , are one of the best indications that this law needs work before it will enjoy widespread public support. Hung juries are often extensively interviewed by the media, thus highlighting where the public finds fault with the law. With FIJA in place, if a prosecutor feels strongly that the law is good, and that if the jurors fully understand its intent and its applicability they will convict, he or she can argue the merits of the law to the jury, and blast the defense for urging that it not be applied in the instant case. Currently, neither the prosecution nor the defense team can argue the law to the jury, and to the extent that the jury does not understand the law and its intent, an inappropriate verdict may result. And the same result may occur again if the prosecutor responds to a hung jury by scheduling another trial.
This is exactly why Thomas Jefferson urged that instead of usurping power from the people, we should teach them how to use it. Lesson one could be a short course on the law--its origins, intent, usual applications, etc. And the better informed our citizen juries become, the clearer public opinion of the law will become, and the shorter will be the "adjustment period" predicted above for the retrofit of law to public will, via legislation. Moreover, fully informed juries would reduce the demand for appeals, because it would soon become evident to defendants and defense attorneys that their chances of a successful appeal would be less after their case had been heard by a jury which could have acquitted despite clear evidence of guilt, but chose instead to convict. As to the oft-predicted "increase in demand" for trial by jury: true, there will always be defendants who realize that if judged according to the letter of the law, they are likely to be found guilty, and who therefore will want to argue the law, explain their motives, circumstances, or moral purposes to a jury.
This might occur more frequently if the strategies open to defendants included the opportunity to inform the jurors of their power to nullify. But how much of an increase in demand would such cases ever represent, especially after a few years, when citizen juries had already expressed their opinion on most of the kinds of arguments such defendants would make? I concede that there might remain a slightly higher level of demand for trials by jury than presently exists, but most of the cases would be those where the need to judge both law and fact would constantly be at its greatest--those involving defendants accused of violating one or more of the thousands of new laws passed every year by our various legislatures. And there would always be some defendants who would want to try and strike a better plea or sentence bargain with a jury than they anticipate getting from a prosecutor, or who think they have a truly unique or extraordinary case to present to their peers, or who broke a law in order to test its acceptance by the community, etc. But these are precisely the kinds of cases that deserve analysis by a jury, and therefore do not deserve to be used as reasons to oppose FIJA legislation.
As to "inconsistency" in verdicts from place to place: the inconsistency between verdicts rendered by the bench already far outstrips anything that comes from groups of six, eight, or twelve people, so the first question that needs answering is "compared to what?" The Rand Corporation is only the latest in a series of researchers who have found "remarkable consistency" between jury verdicts for similar crimes around the country. The reasons for consistency are first that group decisions, simply because they represent a consensus derived from multiple points of view, tend to look much like decisions made by other, similarly composed groups doing similar jobs, as any sociologist would expect; and second, that members of a given society by definition share a common culture--which means there will be only modest variation in values and attitudes from place to place.
My best guess is that the more harmful the criminal activity, the less variation will appear in jury verdicts from different locations around a country, precisely because the most basic, serious values are what define and unite us as a society (indeed, as a species). The less serious crimes, especially the so-called "victimless" or "political" crimes will, correspondingly, generate the widest range of variation in verdicts--and deservedly so. Is that a problematic prediction? I don't see it as such. Gambling and prostitution are already legally tolerated in Nevada, while there are cities next door in California where one can be cited for parking an unwashed car in his own driveway. Unless it has been repealed recently, California also has a law which makes it a crime to sell a glass of milk containing less than seven fluid ounces!
So, regarding the variety of legislation which already characterizes different states and localities, maybe the appropriate question is whether or not something can and should be done about it, but rather "Why not let it be?" Should there be no opportunity for people to select or try to create a political/legal climate which suits them? Should there be no places where harmless deviants or minorities of one sort or another can go and enjoy or exhibit their idiosyncrasies, habits, sexual preferences, or other non-mainstream characteristics and activities?
Social harmony and order may in fact depend upon the existence of places where people who are different from the statistical norm in this or that respect are unlikely to be harassed or arrested, and where their peers are very likely to acquit them if they are. There is no evidence that cultural homogenization leads to harmony among people, though it's been the dream of many an authoritarian personality, usually with disastrous consequences. There is considerable evidence, from the study of different societies around the globe, that the most harmonious among them provide places where and/or times when ordinarily law-abiding citizens can let off some steam, engage in practices or obtain goods and services ordinarily prohibited--and do so without fear of official sanction. In other words, we need to ask of those who worry so much about "inconsistency" what there is about uniformity that is so valuable to society? Or is it only of value to those who wield power? Even the powerful must realize that a melting pot is one thing, a pressure cooker another--and that which makes them so different is their relative potential for explosion. And that potential is maximized when pressure-relief mechanisms, like jury nullification, remain plugged. The "bigotry" argument is completely bogus, although someone inevitably dusts off the fact that a number of white racists who assaulted civil rights workers in the 1960's were acquitted by bigoted juries.
True--but who empaneled those jurors? To get such badly bigoted juries, the prosecutors and judges both had to be so bigoted themselves that they empaneled nothing but good old boys, people they could count on to acquit the defendants. Apparently, not even concern for an impressive win-loss record was enough to stop this abuse of the voir dire process--and of course the defense teams were "speechless" with delight. Could a "FIJA" instruction have made things any worse?
It remains worth speculating, however, whether it might have made a positive difference in any of those trials if the jurors had been told about the importance of relying upon their individual consciences, upon their own sense of justice, and about their power, right and responsibility to judge both the law and the evidence in their pursuit of a just verdict--in short, if the jurors had been "fully informed", as FIJA legislation would have required. Would even one of those juries have hung, as a juror or two couldn't bring himself to violate his conscience and go along with the gang? Unfortunately, we'll never know, because those juries were given standard instructions. In the more common instance where the defendant is a minority group member, it is even more important that the jury be apprised of its veto power, so that a minority of jurors who may identify with the defendant and his or her motives and circumstances can provide perspective and prevent an unjust conviction.
This is how I answer the "14th Amendment" objection to FIJA, another straw man often brought to the front lines by prosecutors bent on beating back FIJA legislation. It which holds that fully informed juries would violate the rights of all defendants to equal treatment under the law, regardless of race, color or creed. The obvious answer is that a fully informed jury may too often be a minority defendant's best (and possibly the only) protection from bigotry during the entire sequence of criminal and judicial procedure, which may begin when a bigoted police officer arrests a minority defendant, turns him over to bigoted jailers, prosecutors, judges, etc. Only a jury, and especially a jury which is both informed of its nullification powers and contains at least a few people who can relate to the defendant, can hope to counteract the rest of the bigotry along the trail with some semblance of "equal protection".
True, fully informed juries may reduce the conviction rate of minority-group defendants, but the high social benefit of having minority groups feel that the American justice system also works for them has got to be worth an occasional failure to convict. And prosecutors should not be quick to assume that minority jurors will necessarily be predisposed to acquit a defendant just because he or she shares their minority status. In fact, many people have no problem convicting people of their own race or other shared minority characteristic, because they want to see their own neighborhood purged of those who make it a dangerous place to live. As to jurors wielding a two-edged sword known as jury veto power, vindictively slashing the rights of defendants, let's lay this objection to rest ASAP. First, a prosecutor who really worries about the rights of the defendant seems to be a rare bird in this day and age, although I have indeed met a few. But when a prosecutor takes time out from his/her routine practice of scaring defendants into accepting plea bargains instead of trials by jury, in order to run over to the legislature and testify against FIJA legislation because "it might jeopardize a defendant's rights", I call it hypocritical irony. If a defense attorney or trial lawyers' group argues to the lawmakers that FIJA legislation could be injurious to defendants' rights, as sometimes happens, they are usually assuaged when they are asked to recall that a jury simply cannot find anyone "more guilty" than charged, and that if it so much as tried to do so the judge would send it back into deliberation with an admonition that a jury has no authority to escalate the charges or damage claims against a defendant.
In the unlikely event that the Judge. failed to initiate such a move, the defense team would certainly move immediately for a mistrial. And should such a motion not be made, or somehow not be granted, the right of the accused to appeal would still remain, and reversal on appeal would be virtually assured.
Nonetheless, recent versions of FIJA legislation have been modified to further relieve anxiety on the part of defense attorneys who haven't thought all this through: the language now couches the prerogatives of the jury--including instruction in the doctrine of jury nullification--in terms of the defendant's right to a full and fair hearing. That is, the latest language specifies that the jury may receive information about its veto powers only upon motion by the defense. In short, there is no "two-edged sword", and for those defense attorneys who still disagree, the more recent FIJA bills include no requirement that the judge bring the subject up. As now, after passage of FIJA legislation, there will continue to be cases in which jurors find someone guilty, but the judge will overrule them on a "technicality". Also as now, sometimes that technicality may pertain to an infringement of the defendant's rights, which is precisely where the judge should step in. But there is no reason to expect that this will happen any more frequently than it does currently, without fully informed juries. And what about the quality of jurors--their alleged stupidity, gullibility, emotional manipulability, low educational level, or whatever. When any trial lawyer, either a prosecutor or a defender, complains about the quality of jurors, and so much as hints that jurors must not be exposed to the truth about their nullification power because they can't handle the decision-making responsibility they've already got, let alone the "additional burden" that such knowledge would entail, my temper is tested.
First of all, if there is any problem with the quality of jury verdicts because of "poor quality" jurors, let's put the blame where it belongs--on the voir dire game (jury-stacking contest) that lawyers on both sides engage in at practically every jury trial, and on the excessively detailed, restrictive, and often confusing instructions given by the judge to those who survive the selection process. Yet, even after everyone who is discovered to have a brain, who has paid any attention to the case, or has any expertise in the fields which the trial may touch upon has been excused, trial juries nonetheless have a remarkable track record for delivering justice.
Why? Because even the least educated and least brilliant among us has a conscience, which for better or worse is not well correlated with years of schooling or IQ. Psychological studies have shown that there are few, if any, points in our lives where we behave more conscientiously than when serving on a jury, even after being deluged with "instructions". Add that to the fact that the only known way to get people to behave more responsibly is to give them more, not less, responsibility, and the obvious formula for better jury verdicts is to tell the jurors the truth about their veto power and political function.
Among other effects, knowledge that the jurors are going to receive such information from the court would probably provide both the prosecution and defense with an incentive to select jurors who, in their estimation, could understand and make appropriate use of their arguments about the law in reaching a verdict. Prosecutors would try to convince jurors that applying the law would produce a just result, while defenders would try to convict them otherwise. A "dumbed down" jury would do neither side any good. The worst of the "quality" complaints is that the truth about jury veto power must not revealed to jurors because they cannot be trusted (with any kind of sword, regardless of how many edges) This allegation is symptomatic of a trend which threatens the social fabric of our nation more than any crime wave, law wave, environmental problem, or international crisis: deterioration of mutual trust between American citizens and their government. It's a general and steadily worsening problem, with those who govern demonstrating ever-increasing condescension to those they govern, even suggesting that our citizen jurors be replaced by"professional jurors" (presumably licensed, and thus controlled by the government, which is what's wrong with the rest of the judicial branch right now). Meanwhile, the governed are growing ever more suspicious and resentful of those who wield power over them. The prospect of trial by government only escalates their apprehensions, while the possibility that FIJA legislation might pass gives them new hope that America may again experience citizen control of government.
A related argument against FIJA legislation is that nowadays the laws of the land are so complex that ordinary people cannot be allowed to judge them, but only to apply the law as given them by the judge. As with most of the arguments in the list, it reeks of condescension and misplaced blame.
It should be obvious that if the jury cannot understand the law, there is something wrong with the law, not with the jury. And it should also be obvious that the short-term answer would be for the judge and the attorneys to help the jury understand the law before using it--which in an adversarial system would best be accomplished done by arguing the law to the jury. And should even that exercise fail to convey the meaning of the law to the juries of the land, then a series of poor-quality verdicts by fully informed juries should suffice to inspire the legislature to rewrite the law in plain, understandable English. After all, at this point, an excellent defense could be made that it is unreasonable to expect anyone to obey a law which a jury could not come to understand, despite the best efforts of all the officers of the court.
Prosecutors (and others) who voice the kinds of objections to FIJA legislation that have been discussed here by so doing reveal that they are part of the problem. Ironically, it's a problem which the legislation they've been fighting could have a major hand in solving. Rebuilding respect and trust between our government and the citizenry is one of the highest hopes of those who've been pressing for passage of FIJA legislation, and the courtroom is a great place to start. Precisely because of the vital role they play in our justice system, prosecutors are in a unique position to become part of the solution. by supporting FIJA legislation. With their support, it will pass through most legislatures, and demonstrate trust in the citizenry at the same time.
One immediate effect will be to make courtroom law professors out of prosecutors, defenders, and judges. Educated on a routine basis by such a faculty, citizen trial jurors will become more involved in their government, and ever better at performing both their judicial and political functions as jurors. At this point in our history, the political function of juries is desperately in need of revival: our legislators are obviously starved for true information about the public interest, and the feedback on the laws of the land which fully informed juries would deliver is the only plausible source. That is, exercise of jury veto power could again serve as a vital link in democratic process, but ever since Sparf and Hansen v. U.S. 1895. which held that judges did not commit reversible error by failing to remind jurors of their veto power, this vital link has also been the "missing link" in our system of government.
The unavoidable result has been a massive accumulation of laws unreviewed by citizen juries, which all too often serve one or a few special interest groups while brutalizing the public interest. Without a systematic and peaceful way for the governed to say "no" to bad law, it is little wonder that some feel they must resort to confrontation, violence, and anarchy. But right now, because passage of FIJA legislation would be virtually assured if supported by the nation's prosecutors, they are in a position to undo a century' s worth of damage, to repave the streets of democratic process, and thus to launch a new era of harmony between government and citizenry in these United States.
Harmony was the hope of the founders when they vested citizen juries with the responsibility to provide justice for the accused and the power to keep the country free of tyranny.
Petit juries, precisely because they were to have the last say on the law, were expected to provide guidance for lawmakers, prosecutors, grand juries, police, and all other participants in the justice system. It once worked that way, and it can again, but prosecutors are going to have to show they believe in the system the way it was designed, by backing FIJA legislation.
My best estimate is that the window of opportunity for prosecutors to strike at the root of the problem by supporting FIJA legislation will soon close. Closure will be marked by enactment of laws defining us as a police state, such as the several "anti terrorist" bills currently proposed in
Congress. Here's hoping the nation's prosecutors will come to agree that the answer, not the problem, is in reinstating the power of the people via fully informed juries.