The Criminal Jury, Nullfication, and Open Governance
by Jenny E. CARROLL, Associate Professor of
Law, Seton Hall University School of Law (United States).
The movement
towards open governance has encouraged not only transparency, but direct
citizen participation in government. In reality, however large swaths of the
actual experience of governance and law-making unaccounted for. Even as notions
of governance have evolved, they seem to hover around an underlying notion that
there is a separation between those who make laws and those to whom the law is
applied. To the extent that there is overlap in these realms, it is that those
who occupy the formal spaces where law is created are also subject to those
laws. Ordinary citizens are the recipients, not the creators, of law. Even as
proponents and theorists have recognized that the call to open governance
pushes those in power to account for law-making that occurs through
interpretation,[1] the realm of that interpretation
remains in those narrow spaces of formal governance. Thus, even among those
open governance advocates who would move governance away from its positivist
and formalist roots, the power of law-making remains in particular and
designated spaces, separated from the very people whom the law would govern.
Jury
nullification is rarely discussed in the context of open governance movements.
Nullification, or the possibility that a citizen juror would interpret the law,
seems counter to the primary ideals of the movement’s allegiance to
transparency and order – that laws are knowable in advance of any particular
case, created and applied in a uniform manner, and there is a separation
between the governed and the government establishes this order, that they are
knowable promotes transparency. But this failure to account for jury
nullification (or the role of jurors in the open governance movement) is a
mistake. To the extent that traditional models of governance and the rule of
law establishes a distant (and from the perspective of the citizen, passive) relationship
between the citizen and his government; nullification challenges this
relationship. It opens the possibility that a juror, with no greater
qualification than the fact of his citizenry (and his ability to survive the
voir dire process) is an appropriate source of law. The citizen’s role shifts
from the law’s passive recipient to the law’s active creator, through his
interpretation and application of the law as juror. With this shift, a new
conception of law is born – one flowing from both formal and informal sources,
which includes jurors engaged in nullification. This conception of law, and
governance under it, is not only a more accurate presentation of law-making in
a democracy; but counter intuitively it supports transparency by directly involving
the citizen in the law-making process. Accepting that jurors play a vital role
in open governance, recognizes that the value of the law is not only in its
predictability, but also in its ability to be responsive to the citizen’s own
lives and to conform with the citizen’s expectations and understanding of the
law.
This paper
embraces a vision of open governance that preserves the vital role that
mechanisms of direct citizen construction of law, including nullification, can
play within a system by preserving notions of justice and law that is truly
cognizable to the citizenry. I reject the limited view that law creation and
interpretation must occur only in formal realms of government runs and argue
that to do so is to risk moving the law further and further away from the
citizen’s own sense of what the law is and what it ought to be. In this sense,
allowing jurors to directly interpret the law a dialogue is opened between the
formerly static construct and the ordinary citizen. In this sense, the jury plays
a role that members of the formal branches may be unable or unwilling to do –
they construct law that is both public and predictable to the masses from which
they are drawn. This is not to say that juries are the only component of open
governance, or that they should displace the authority of formal bodies to
create and interpret law, or that there are not ways to improve juror
transparency, but it is to say that jurors act as a critical check in cases
where the ideal of a knowable and transparent law has been displaced by an
overly formal construct.
To accept that open governance should
encompass jury’s raises the more difficult question how the jury should fill
this role and what limitations should be placed on it. In answering question
there are known quantities. Governance emerges as a story about spaces – the
places, real or theoretical, in which law is made and obedience acquired (or
demanded). The open governance movement seeks to define the boundaries of those
spaces and, in the process, to define the concept of law and government itself.
Contemporary
debate about open governance has struggled to reconcile its promise of a
predictable, knowable, stabile law with the reality that rules, laws, and even
the government itself exist in context – the spaces of people’s real lives –
and are subject to interpretation and re-imagination. The governance itself is
bound on all sides by the need for a normative consensus that allows the law to
demand obedience through the acceptance of the law by the citizens. The law may
govern the community, but the community must have some space to shape the law. At
the end of the day, the rules or norms are only as effective as their ability
to resonate with the community’s own notion of law and governance.
In moments of
disconnect, when the law is discordant with the community’s values or
expectations, it loses its power and the underlying aim of open governance is
defeated. The law becomes a foreign body that cannot be repaired with traditional
notions of open governance. To retain its link to the community norms,
government must re-conceive of the relationship it seeks to create between the
citizen and his government and, in the process, the law itself. This notion is
inherent in open government’s conception of law and governance as it rejects
the ideal that the relationship between the citizen and the government as a
distant one, with formal bodies creating law that the citizen must learn to
accept and recognize, or reject. This law might well attempt to reflect the
underlying values of the community or its historical past, but it is created
outside of the community itself. This construction of law inevitably fails
because it belies the reality that, inevitably, the law and the citizen must occupy
the same space; the very meaning of the law is drawn from the lives of the
citizens it governs and their expectations of the law within their lives. To
accelerate the space between the people and the law is to construct a law that
circles ever further away from those from whom it would demand obedience.
But to reduce
the space between the citizen and the law, and to reinvigorate the relationship
between the citizen and her government is to construct a law that jettisons
some of the formalistic premises in favor of the normative experiences of those
to whom the law applies.[2] While
abandoning rigid application may inject a degree of uncertainty into the law
and governance, even the most ardent proponents of formalism would not argue
that the government’s or law’s redeeming principle is consistency for
consistency sake.[3]
The law serves many masters – empowering some, controlling or protecting others
– but in the criminal system, its ultimate goal is always some larger concept
of justice.[4]
When consistent application of the law alone will undermine that larger aim,
there must be a mechanism within the system to construct new meaning,[5] to
bend the law around the lives it encounters to achieve its ultimate ends.[6]
In short, a
construction of law and in the process governance that is drawn from many
sources, including those it seeks to govern may actually enrich governance. The
creation of rule, or even a general principle to guide that rule, does not
alone create law. The writing that would codify and memorialize some collective
value or morality in the name of open or participatory governance is only the
beginning (or maybe the middle) of the story that is the law. The writing is
simultaneously a fixed and ambiguous point. It is fixed in that it is
unchanging (though not unchangeable). It remains long after the wars, the
elections, and the debates have ended. Absent some extraordinary moment of
repeal, it lingers, even if unenforced, as law capable at any moment of
demanding allegiance or punishment. But the text alone is incapable of imaging
the lives of those to whom it might apply. It is composed of generalities. It
is both over- and under-inclusive from the moment it is set to paper. It cannot
contemplate some future scenario when the words, applied formally, would
confound their own purpose and produce an unjust result.
Like all
creatures constructed of words, the written law is also, in its stasis,
ambiguous. Its language obscures and eludes meaning at the moment of contact
with the normative world. Someone must give meaning to the words. Someone must
interpret the law. Interpretation imperils predictability, knowability and
stability. As the executive and judiciary define the parameters of the law
through interpretation and application, even the plainest of text may take on
meanings increasingly distant from the understanding of ordinary folks who live
in the shadow of the law. Words abandon their common or understood meanings and
become terms of art; complex to the point of incomprehension with their
interpretive glosses. Statutes with vague or open textured language are
particularly vulnerable. Secondary or appellate courts with their allegiance to
elaborate legal tests and the inevitable carving out of exceptions and
exceptions to exception over time only compound the problem. In time, the
citizens’ ability to know the law presents as a near impossible ideal.
Each layer of
interpretation carries a power all its own. It writes meaning over and onto the
words of the statute, seeking to lend the citizen a context and history through
which his expectation of the law can be shaped. But at some point, in a quiet
space removed from the formal rooms of this previous construction, the citizen
lays the written word and the history it carries next to the story of his own
life and seeks a common meaning. When that commonality is elusive, when the
formal construction of the law’s meaning is too rigid or otherwise confounds
the citizen’s notions of morality or the purpose of the law itself, the citizen
may seek reconciliation, an integration of the law’s formalism with the
normative experience they together – the law and citizen – occupy. Failing
that, he will write a new meaning in his resistance.
This is the
embodiment of open government. This push to accommodate the reality that rigid
application of the law undermines its purpose. These ideals describe law as a
body constructed and drawing meaning from many sources. [7] But
these ideals are limited in the sources of interpretation they will consider.[8] They
fail to contemplate the citizen’s own moment of interpretation as a possible
source of law believing that such an informal source of law might undermine
predictability and stability. But in this they overlook the possibility that
the citizen may possess a power of interpretation that formal branches lack. Jurors,
by the very nature that they are ordinary citizens drawn from the community
where the crime allegedly occurred, are in a unique position to consider the
law in the context of a common community understanding. Where courts and
prosecutors may speak of the formal meaning of statutory terms, the citizen
interprets the language of the statute in lived terms lending the possibility
of a new, more nuanced meaning and one that is more consistent with the
citizens’ expectation of the law.[9] In
this sense, the juror may create transparency, stability, and predictability in
the law in ways that has alluded formal construct alone.[10] Granting
juries the authority to interpret law will not displace executive discretion in
application or judicial interpretation, but granting juries the power to
nullify can allow the citizen to serve a unique function. It allows the citizen
to check oppressive applications of the law in cases in which formal
construction of the law has destroyed its predictability and distanced it from
the very people it would govern.
A wider
conception of law that draws meaning both from formal sources and from the
lives of the people who live under it may ultimately prove more useful in
achieving the underlying aims of open governance than reliance on formal
sources alone. What the law may lose in terms of consistency in it gains by
acquiring a meaning that resonates with the citizen’s expectation of government
and larger principles of justice.[11] The
moment of law-making never truly ceases. It is no longer confined to the rules,
statutes, or their formal application or interpretation; rather– the law
evolves and is shaped each day by the lives it governs and their attempts to
reconcile their own principles and expectations with its written word.
This is not to
say that the law is not without a point of reference. The shared history of the
law – its writing, its prior application, its prior interpretation as precedent
– all simultaneously offer a starting point for those who would ground the law
in their own lives. But in moments when this history’s application is
inconsistent with the citizen’s notion of the purpose of the law itself, he is
not bound to rigidly and unthinkingly apply the law. Instead, a new
construction of meaning is possible.
The law, thus
reconstructed, ceases to be a distant body and becomes a living part of our nomos our widely shared and deeply held
social norms of our community.[12] These
norms construct our expectations about what behavior is permissible and what is
forbidden. They form the basis of our belief systems and sense of justice.[13] The
written law is integrated so that it fits in the spaces of the citizens’ lives.
The law takes on a meaning that encompasses not only the words written, applied
and interpreted by the formal government, but also the cultural norms and
expectations of the community it commands.[14] When
one conceives of the rule of law as nomos,
the line around the formal and positive construction of law blurs and opens to
a broader possibility of meaning. The rules, statutes and formalized
interpretation still exist, but they are only part of an ongoing process of
recognition.
In this
normative world, the line between law and unlawful is constantly made,
challenged, and maintained. This line is defined by the narratives and cultural
norms that locate it. In one community, it may exist in one form; in another
its meaning shifts to be previously unrecognizable.[15] The
governed ground the law in their lives and in the process their relationship
with the government is altered. In doing so, we as citizens accept an active
role. We must discern our principles and compel the law to act upon them.[16] We
recognize that a true rule of law requires more than mere mechanical
application of the law without reference to larger world in which it exists.[17] We
gather the meaning passed to us by the formal government, and we hold this
meaning side-by-side to our own understanding and expectation. There may be
little divergence between the two. We may accept the law as delivered, thankful
that some other force did the heavy lifting of law-creation. But other times,
this comparison may confound our sense of social norms. In these moments when
our nomos, our widely shared and
deeply held norms of our community, ring discordant with positive law, our
social norms likely provide a better guide to the “law in action” than the “law
on the books”.[18]
In these times of disconnect, the legitimacy of the law may be undermined by
the resulting uncertainties.
When law and communal
values no longer align, one possibility is that the police will not arrest; the
prosecutors will not bring charges, and even if they do, the juries will not
convict. In this scenario, the authority of the law is undermined by a
wholesale refusal to accept the law as present. Another possibility produces
equally uncertain results, police and prosecutors will pick and choose among
cases for enforcement and juries will sometimes convict and sometimes acquit. In
either case, the goal of a reliable, certain, and predictable law which girds
the rule of law is undermined by strict reliance on positive law.
In these
moments of disconnect between the nomos
and the positive law, giving the jury the power to nullify may actually
increase the predictability of the law by seeking to realign the law with
prevailing community values and expectations of the law. The nullified verdicts
communicate to the formal branches of government that the citizenry will not
sanction the enforcement and application of laws that are not aligned with the
social norms and morality of the community. In the process, a new possibility
of interpretation emerges, drawn not from those who constructed the law in the
formal branches, but from those who live each day under the law.[19]
Contextualized
in the history of democracy, there is no small irony in understanding the law
and government itself as requiring a fidelity to shared communal values.
Compared to
other moments of law-making – the legislator’s creation and codification, the
executive’s enforcement, or the judiciary’s interpretation – nullification
occupies a small space. By itself it cannot make law. It does not press a new
meaning across the legal universe. It has no power to demand uniform deference
to its will. It creates no precedent. In the larger world of the nomos, it is a near private moment that
serves a unique function to press the community’s shared values onto the face
of the law. Beyond this, nullification is a warning that whatever the formal
construct of the law and governance, it exists apart from the citizen’s own
understanding. It demands correction of constructs of the law that do not
account for the citizen’s lived experience and expectations of the law as a
result of those experiences. It is a call to interpretive commitment – a
seizing of that active role of citizenship that open governance imagines. Viewed
in this way, the jury’s ability to consider questions of law serves as a
mechanism to lend predictability and knowability to the law and government when
formal constructs have failed to align themselves with the citizen’s own
expectations.
Juror nullification is a challenge to the notion that law – once
constructed, enforced and interpreted by the formal bodies of government –
requires wholesale deference. It is a rejection of the premise that the citizen
owes a duty of unquestioning obedience to the State and its construction of law
above other competing allegiances.[20]
It pushes against an external construct of the law, in which the State defines
the terms of the community it governs and then demands obedience to those terms
as the cost of continued membership in the community.[21]
It recognizes instead that there are times when rejection of the law and
government’s rigid perspective is a good thing – when the lives of the citizens
are diminished by wholesale deference and improved by disobedience.[22]
While obedience to the law may create stability within a community, such
obedience can also produce harm.[23]
Laws, left static, may fail to acknowledge the world as it actually exists, and
may instead imagine circumstances as they may or could exist.[24]
Likewise, laws, even from the moment of their creation, may never have adequately accounted for or
accommodated the lives of the citizens they govern.[25] In
these moments, it may be that the citizen, and not the government, is better
able to access the value of the law and suggest counter meanings or
interpretations.[26]
Indeed, the citizen’s continued allegiance to the law as constructed by formal
bodies may alienate the citizen from her own values, her government, and her
autonomy as a person.[27]
In part, this
is a recognition that in the process of compromise, settlement, and
interpretation that informs the formal construction of the law, the citizen’s
sovereignty may be lost. In these moments, whatever virtue is gained from this
stable and unifying conception of law may simply come at too high a price for
those left to live in the shadow of the constructed law. But it is also a
recognition that if the government seeks to force an unquestioning deference to
the law based on its status as “law” alone, without any effort to ground the
legitimacy or justification of the law in the citizen’s own value system, the
relationship between the citizen and government shifts. The government claims power
for itself as the source not only of the law but of the value system that is
bestowed on the citizenry through the creation, application, and interpretation
of the law.
Nullification
pushes the opposite reality: that the power of governance, and so law creation,
application, and interpretation, must flow from the citizen to the government. Members
of the formal bodies that have created, codified, enforced and interpreted the
law have done so as an act of delegation – by virtue of the citizen’s willingness
to cede the power of governance to representatives. The fact of this delegation
alone cannot displace the power of the citizen’s own normative judgments about
the value of the law, measured by its ability to account for his own life and
his own values.
Nullification,
even in the small space it occupies, is a safety valve in a world that might
otherwise reduce self governance to a series of deferred loyalties and
wholesale obedience. It is a constant reminder that the value of the law flows
from the people, and that the formal decision-makers are agents – repositories
of our delegated power – not the source of power itself.[28] The
law and government are not an external and foreign bodies, but a internal ones
that are as fluid as our own shifting values, norms and expectations.[29]
In this, it
may seem that nullification renders the law and the government that produces it
less knowable, less constant, and ad hoc. The fear of inconsistent verdicts and
their effect is powerful. The horrific history of nullifying verdicts in the
United States serves as a reminder of the power of this near private moment
when compounded across a community.[30] But
this first impression ignores equally valid realities. Nullification is an act
of integration – it seeks to map the formally constructed law onto the lives of
the governed and, in the process, preserve the underlying value of law itself. It
is a moment of direct citizen interpretation that pushes the law to account for
a previously excluded perspective. It renders the law a body in motion from its
static origins. It is a moment of voice and exit – expressing dissatisfaction
within the confines of the walls of the system and rejecting law that would
exclude the citizen’s own experience. Within the open government movement, this
is consistent with an expanded vision of the law, and there is inherent value
to it. Nullification shelters an outlying narrative that channels the power of
interpretation and enforcement away from the government, and toward the people,
in ways that promote the underlying values of the democracy. Nullification
drives the law to bend toward the citizen’s conceived notion of justice,
whether that notion is drawn from their understanding of the law or some
competing narrative in their own lives.[31]
That the citizen
juror’s sense of justice may be inconsistent with or in direct conflict with a
larger national sense does not undermine its value or displace it as a possible
source of law. Discordant and divergent perspectives play a valuable role in
the creation and interpretation of law and guide governance decisions.[32] Acknowledging the difference between
the State’s formal construction of the law and the citizen’s own sense of it
pushes against a complacency that would suggest that government must maintain
only one perspective. Divergence rebels against a notion that we as individual
citizens are truly singular in our identities. Rather, we are the complex and
multifaceted sons and daughters of those early revolutionaries (whether
actually or metaphorically) who risked their lives rather than offer blind
obedience to a government so distant that they could no longer recognize
themselves in the laws that sought to govern them. Nullification empowers a
forum for our dissent within the larger construct of government – even if it is
only in a small space like a jury room or on a verdict form. Even that small
moment can serve as a catalyst for change when it resonates with a broader
community.[33]
In a world that struggles to produce a nationalized consensus, nullification is
a reminder that local forums may be better suited to serve as proving grounds
for the dynamic beliefs of the citizenry.
Nullification
also opens other possibilities. Just as it opens a space for competing voices
in the larger body politic, it opens up the possibility of a law constructed in
spaces that acknowledge the horizontal and vertical components of citizens’
lives. In this it offers the possibility of integrating the competing
pluralisms that compose the lives of the governed and imagines a law that seeks
to account for shifting allegiances and identities even as it seeks to
establish law
People exist
horizontally and vertically. Their identities are a combination of traits,
beliefs or associations that groups them along these competing axes. They are
vertical in relation to formal hierarchy. In the terms of governance, they are
citizen and/or elected or appointed officials. Their formal role in the
creation of law is defined by the vertical space or spaces they occupy. A
citizen votes.[34]
He hopes to elect a representative whom he then hopes will implement policies
consistent with the citizen’s own values or expectations. If the representative
fails in that assigned role or the citizen changes his mind on what he expects
from the representative, the citizen is still confined to the remedies of the
vertical space he occupies. For most citizens, this space is a bottom rung in
the vertical hierarchy of governance. The citizen is common. He is the mass
that elects the few that govern from a higher vertical space then his own. Those
few – the members of higher echelons of this vertical construct – write laws,
execute laws or interpret laws depending on which branch of vertical space they
occupy. They are the formal lawmakers. They simultaneously represent and
govern. Their words become law. The citizen waits for their pronouncements to
tell him what is or is not permitted.
But people
also occupy horizontal spaces. Spread out across the plane that is personhood,
individuals simultaneously answer to different names, different identities. Some
may be disjunctive; a citizen is a man or woman, son or daughter, husband or
wife, or partner or single. He is Jewish, or Protestant, or Catholic, or
Islamic, or Buddhist, or Zoroastrian, or some other religion, or agnostic. Others
are conjunctive: he is a sports enthusiast and a knitter and a florist and a
clarinetist and the author of an award-winning series of ladies’ romance novels
set in nineteenth-century England. He supports equal rights, but not gay
marriage. He is pro life and pro death penalty. He owns a gun, but supports gun
restrictions.
The list goes
on and on in any of a multitude of combinations. The details don’t matter as
much as the recognition that people draw their identities from many sources. These
sources at times may crash against one another in a struggle for value
dominance. Should this citizen vote for municipal bonds that fund a new hockey
arena or an orchestra hall? Should he push for state-run health insurance to
cover independent contractors like authors that might also fund abortions for
women in lower income brackets? In each of these decisions, he weighs the
competing values of his horizontal identity in order to exercise his vertical
one. He seeks to reconcile the pluralism that is his life. In this process of
reconciliation, questions of obedience and deference inevitably loom. On the
one hand, theories of liberal governance would support the notion that the
citizen owes deference to the law – even laws that conflict with the citizen’s
underlying moral values.[35] On
the other hand, the citizen may ask whether he owes deference to formally
constructed law and the government above all other constructs of social value
and competing pluralism?[36]
As an informal
source of law, nullification offers a mechanism to allow citizens to explore
pluralism in the context of real applied law. In a jury room a citizen may well
be engaged in the same process of compromise that informs the participation of
his vertical self in the context of formal law-making. But the jury room also
opens the possibility that, when given the chance to explore his horizontal
self in the context of the application of the law, he may reach a different
conclusion. Even the man who supports gun control legislation in general may
weigh his competing allegiances differently when asked to apply that gun
control to a fellow knitter who defended herself with an illegally possessed
firearm. In this process of compromise, the nullifying juror opens a new realm
of law – one that seeks to integrate the competing internal identities of the
citizen. Nullification challenges the notion that obedience to the law and
faith in the government enjoy only one construct. It suggests instead that just
as liberal governance implores the citizen to be faithful to the law, so those
who would make and interpret law must be faithful to competing sources of
meaning that in different contexts may push competing norms of identity to the
surface when the law is placed in our normative world.
In this
nullification serves many masters. It elevates a previously excluded voice
within the confines of formal government and pushes back against an
unresponsive construction of law, while opening up a new forum for expression
of the citizen’s competing values and ideals.[37] But
it also offers a moment of reconciliation between the formal construction and
the citizen’s conception of law that saves the whole by forcing an alteration
or an exception, rather than wholesale rebellion. It creates a space in the
government for those who might otherwise be forced to exit.[38] The
nullified verdict is a warning of a perceived distance between the citizen’s
sense of justice in a single case and the law itself. Like all warnings, it can
fall on deaf ears, or if heard it can fail to resonate with a larger audience
that might effectuate some change. But in those moments when it does resonate,
it is a call to produce a more responsive law – one that is truly created by
the people and not handed to them whole from the government that, once
receiving their votes, can easily blend into a ruling class with no true
connection to the citizens it serves.
In a world
where many citizens do not vote, even in local elections, because they sense
that their vote won’t matter, a vote in a room of twelve fellow citizens lifts
this hopelessness. A jury vote – every jury vote – matters. One jury vote can
be the difference between a conviction and a hung jury. What the jury lacks by
way of an “empire,” with its limited power and jurisdiction, it makes up for as
a site of meaningful “minority” rule in the face of a nationalistic push toward
consensus that the community may not accept.[39] In
this sense, nullification does not undermine or merely correct the
imperfections of the law – it offers a moment of meaningful democracy, and
relief from the rigors of a formalist construction.[40] This
construct of jury as a source of law is consistent with the Founders’ own
distrust of concentrations of power within the democracy. Just as the three
branches serve as a system of multiple checking mechanisms on the power of
formal government, the jury as a source of law forces an accounting with the
possibility of an alternative interpretation of (or even rejection of) the law.[41]
In this sense,
nullification creates a more knowable, more consistent law, insofar as it
conforms to the citizens’ expectations of the law in their own communities. It
is true to the nomos. Nullification
requires that twelve citizens – with no further qualifications than their
inability to avoid jury duty – come to a consensus about the law that
contradicts the one promoted by formal government. This suggests a depth of
feeling regarding the state of the law that is both intransient and consistent
among and across those individuals chosen as jurors on a particular case.[42] In
agreeing to nullify they are seeking to drive the law back towards themselves. They
create a law that is knowable to them in a tangible way by refusing to apply it
to their fellow citizen.
In this, nullification, while certainly limited by both its effect (a
single verdict) and its participants (jurors on a single criminal case),
answers some concerns about the possibility that it engenders or encourages
random or improper verdicts. But further consideration of the process of
deliberation also suggests that random or improper verdicts are unlikely, even
if jurors are permitted to judge questions of law. To the extent that we trust
majorities to make democratic decisions in other context (such as the election
of representatives), we profess some faith that a “correct” decision can be
reached by the majority so long as each participating member is making a
decision that is better than a random decision.[43] While it is
always possible that a juror, like a member of any electorate, will vote
randomly, the hope is that the process of jury selection will minimize that
possibility. That instead, jurors will cast their verdict votes based on their
understanding of the case before them and so are as likely as any majority to
arrive at a “correct” and non-random decision.
But analysis
of the jury decision making process is admittedly tricky in ways that other
democratic process may not be. The jury may be a counter intuitive tool of open
governance. To the extent that jury deliberation is both veiled in secrecy vis
a vis the outside world and is available only to the chosen few, the mechanism
of jury selection becomes critical. A failure to include a variety of community
perspectives on a jury is not only to risk that a verdict that fails to reflect
communal values, but if the verdict is a nullified one, it may undermine the
stability of the law and reinforces oppressive regimes. Evidence of continued
exclusion of particular classes of individuals and perspectives must be
addressed if the promise of nullification as a means of infusing the law with
communal values is to be realized.
As the Court,
and all of us, struggles to define the role of the citizen in our modern
government, some salience emerges. We, as citizens, are a powerful source of
meaning. Every day we construct a law that flows from the bottom upward,
pushing against an increasingly distant and elite government.[44] But
we are also a dangerous force when our own concept of justice is grounded in
prejudice or “cruel, cruel, ignorance.”[45]
In any government,
there are different corridors of power. Some are occupied by formal decision
makers – elected or appointed – who construct, enforce, and interpret law in an
“official” capacity; others by less formal power brokers. Lately in the United
States and elsewhere, there has been much debate about the continued failures
of official actors. In the United States infighting among formal actors has
seemed to descend into an inevitable and dizzying cacophony of partisanship and
allegiance to specialized interest. In the wake of this dysfunction, citizen
movements have decried the ever-increasing distance between the formalized
space of government and the “people”. Citizens have taken to the streets to
protest and to “occupy” more formal corridors of power; private citizen actors
have spirited secret government data-collection protocols to online sources;
they have landed helicopters on the capitol lawn – all in the name of
reclaiming the government and more formal chambers of power. To speak of open
government is therefore to speak of a reclamation of the formal spaces of
governance.
But in this
movement to open government, the quieter corridrs of power have often been
overlooked. These other spaces of governance are occupied by the citizens
themselves, in venues where their lives bump against formal law and lawmaking. In
these small empires, the citizen participates in governance and the
construction of law itself. From voting to boycott to jury nullification,
citizens can and do claim spaces in which they can assert their views
unfiltered (or relatively unfiltered) by larger power structures. One of the
most powerful of these small realms is the criminal jury box.
Citizen jurors
in criminal cases are in a unique position to assess the legitimacy of the
government’s exercise of power at the moment its power directly touches a
fellow citizen – the criminal defendant. To recognize this reality is to
recognize that jurors serve a greater role than mere fact finders – they serve
as legal interpreters, instilling a community-based interpretation of the law
in their verdict. Whether determining an appropriate charge as a grand juror or
guilt as a petit juror, jurors push for an expansion of governance that
encompasses not only formal spheres of power but also less formal ones in the
form of direct citizen governance. As such, juries serve as a vital, and oft
overlooked, mechanism of open government – forcing a transparency and
power-sharing between formal and informal constructs and collaboration among
the citizens serving as jurors to reach a verdict.
This system is
not without its failings: the obscurity of jury selection and deliberation; the
controlled universe of information shared with the jury as evidence, argument,
and jury instruction; the secrecy shrouding the basis of the subsequent
verdict. All of these might counsel against characterizing the jury as a
mechanism of open governance (and might explain why no one else is talking
about it in the context of the open government conversation). But this
hesitation takes a myopic view of the jury’s role and composition. It overlooks
and undervalues the fundamental nature of the jury as a body of citizen actors
weighing power and the meaning of the government’s power. Whatever shortcomings
it possesses counsel toward an alteration of the process surrounding jury
construction and deliberation, not the rejection of it as a body of open
governance.
As the open
government movement pushes for participation and collaboration in the grander
spaces of government, the informal realms of governance may offer an equally
significant opportunity to achieve such goals. This paper explores the role of
the jury as a citizen decision maker in the open government movement, arguing
that in juries may lie one of the greatest opportunities for meaningful citizen
participation in governance.
[1] See Richard
A. Posner, Law and Literature 163 (3d ed. 2009) (describing the
importance of incorporating interpretation into the rule of law rendering “law …
the art of governance by rules, rather than an automated machinery of
enforcement”); Ronald Dworkin, Law’s Empire 166 (1986) (arguing that in
order for a State or its laws to maintain integrity, they must engage in a
process of interpretation premised on consistent and agreed upon principles);
H.L.A. Hart, The Concept o f Law 125
(1961) (describing law as a process of creating and then interpretation
in order to achieve acceptance); Cass Sunstein, Problems with Rules, 83 Cal.
L. Rev. 953, 959-68 (1995) (arguing that law draws meaning not only from
construction but interpretation).
[2] Sunstein, supra note 1, at 959-68 (arguing that the rule of law must be
animated by many sources and cannot rely on mechanical application in the hopes
of achieving a “just” result).
[3] As Dworkin
aptly noted, at the end of the day, the rule of law must be a functional ideal.
Dworkin, supra note 1, at 190.
[4] Eskridge &
Ferejohn, supra note Erreur !
Signet non défini., at 265, 267
(arguing that rule of law ultimately must be driven by both “coherence and
justice” for both the courts and the citizens).
[5] Id.
[6] As will be
discussed further in Part III it is important that this mechanism be incorporated
into the system itself, less the rule of law be undermined. Without such a
mechanism, the system risks the allegiance of its citizenry. If the citizens
cease to recognize the law, it loses meaning in their lives, even that meaning
that was previously accepted. Laws that were once obeyed, and perhaps still
consistent with the citizens’ expectation at the time they were enacted, emerge
as part of a foreign system aligned with discordant law.
[7] See Hart,
supra note 1, at 8
(explaining that the use of competing sources of the law help give it meaning
and context otherwise absent).
[8] Id.
at 12.
[9] See,
e.g., Vicki L. Smith, Prototypes in the Courtroom: Lay Representations
of Legal Concepts, 61 J. Personality & Soc. Psychol. 857, 868 (1991). Smith’s
work concluded that jurors were not influenced by the formality of substantive
criminal law doctrines, and instead relied on prototypical representations
drawn from their own lives and cultural identifications in reaching verdicts. Id. at 870. People, even when instructed
otherwise, carry an intuitive perception that, in the context of juries, drives
them towards a verdict which conforms with their normative sense of the world
and the law’s role in it. See Howard Margolis, Patterns, Thinking, and
Cognition: A Theory of Judgment 3 (1987).
[10] See
Lawrence Sloan, The New Textualists’
New Text 38 Loy. L.A. L. Rev. 2027, 2041 (2005) (offering prototypical
reasoning as a methodology of interpretation).
[11] See Hart, supra note 1, at 8 (explaining that the use of competing
sources of the law help give it meaning and context otherwise absent). Though
as will be discussed momentarily even methodologies of ad hoc judging as may
present in nullification do not necessarily produce inconsistent results, at
least not in the way Hart and others predicted.
[12] See
Lawrence Solum, Natural Justice, 51 American Journal of Jurisprudence 65
(2006).
[13] See
Paul H. Robinson and John M. Darley,
Justice, Liability, and Blame: Community
Views and the Criminal Law4-8 (1995).
[14] Radin, supra note Erreur !
Signet non défini., at 808-09.
[15] Id. at 817 (arguing that a rule will
control in practice only when there is strong public agreement surrounding it).
[16] Dworkin, supra note 35, at 96, 189-90 (requiring that in order for the rule
of law to achieve full integration of the citizens’ perspective, “each citizen
must accept demands on him, and may make demands on others…. Integrity
therefore fuses citizens’ moral and political lives: it asks the good
citizen…to interpret the common scheme of justice….”).
[17] See id. at 187-90.
[18] See
Roscoe Pound, Law in Books and Law in
Action, 44 Am. L. Rev. 12, 32-3 (1910).
[19] Jürgen Habermas, The Theory of Communicative
Action 102-11 (T. McCarthy, trans., Boston, 1984) (suggesting that the
proper source of interpretation is not the people who wrote the text, but the
people who live under it).
[20] See Phillip
Soper, The Ethics of Deference: Learning
from Law’s Morals 170, 183 (Cambridge Univ. Press 2002).
[21] See Greene,
supra note Erreur !
Signet non défini., at 83,
(arguing that law must spring from shared values to merit obedience); Joseph
Raz, The Obligation to Obey: Revision and
Tradition 174, in William
Edmundson, ed. The Duty to Obey the Law: Selected
Philosophical Readings (Rowman & Littlefield 1999) (rejecting
required obedience to laws that while promoting stability within a community
fail to embody communal values).
[22] See Margaret
Gilbert, A Theory of Political
Obligation: Membership, Commitment, and the Bonds of Society 279 (Clarendon
Press 2006); David Hume, Of the Original Contract 268, in
Alasdair MacIntyre, ed., Hume’s Ethical
Writings, (Notre Dame Univ. Press 1965); Abraham
Lincoln, Abraham Lincoln: Speeches
and Writings, 1859-1865 (New York Library of America 1989) (all noting
that disobedience to the law is often feared as contagious and therefore
resulting in systematic instability, when in reality it may promote a more
stable law by creating one that is more immediately responsive to the
populous).
[23] See Greene,
supra note Erreur !
Signet non défini., at 98
(noting that laws may become outdated and thus fail to represent the needs of
the citizens or may never have accounted for those needs in the first place).
[24] See id.
[25] See id.
[26] See id. at 99.
[27] See Robert
Paul Wolff, In Defense of
Anarchism 14-15 (Univ. of California Press 1998) (arguing that there
will be times when personal autonomy and political authority are fundamentally
incompatible).
[28] See Greene,
supra note Erreur !
Signet non défini., at 102.
[29] See Louis
Michael Seidman, Our Unsettled
Constitution: A New Defense of Constitutionalism and Judicial Review 56
(Yale Univ. Press 2001).
[30] The history
of nullification surrounding the Fugitive Slave Act in the North offers a
positive counterpoint to this negative memory. See Foreman, supra note Erreur !
Signet non défini., at 899-901.
[31] Solum, supra note Erreur ! Signet non défini.; Anne Bowen Pouline, The Jury: The Criminal Justice System’s
Different Voice, 62 U. Cin. L. Rev.
1377, 1380, 1383 (1994) (noting “[t]o achieve one of law’s ends – justice – we
must sometimes abandon law’s means, such as rule application”).
[32] See Heather Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 9 (2010).
[33] See United
States v. Dougherty, 473 F.2d 1113, 1143 (D.C. Cir. 1972) (Bazelon, C.J.,
concurring in part and dissenting in part) (footnote omitted) (noting that part
of the power of nullification is to serve as a locus for attention in moments
when the application of the law in a community is inconsistent with either
stated government policy, or the sentiment of the larger state or national
communities).
[34] See Greene,
supra note Erreur !
Signet non défini., at 47
(noting that formal government offers little opportunity for direct citizen
voice outside of casting a ballot).
[35] See John
Rawls, Political Liberalism xviii-xix; 54-58 (Columbia Univ. Press 1993)
(arguing that mutual concepts of justice mandate obedience to laws, even if the
moral basis for the law may diverge from the citizen’s own sense of morality); Rawls, supra note Erreur !
Signet non défini., at 115,
344, 351, 354-55 (contending that if a state meets the minimum requirements of
legitimacy then the citizen has a moral duty of obedience to the institution
including a duty to obey laws, even if the citizen fids such laws unjust). Ronald
Dworkin would reach a similar conclusion, but for different reasons. See Dworkin,
supra note 1, at 166, 180
(stating that citizens owe a duty of obedience out of an associative
obligation).
[36] See Greene,
supra note Erreur !
Signet non défini., at 1
(asking the question of why obedience to law requires competing norms including
religious, familial or social values to be rendered subservient to those
promoted by the state).
[37] Divergent
perspectives presented as nullified verdicts can serve as catalyst for change,
energizing a national response to local rule. See Encyclopedia of American
Civil Liberties, supra note,
at 869-70 (arguing that “consistent acquittals (by all white juries) in state
criminal courts in the American South in the early 1960s” helped fuel the Civil
Rights movement). While the nullified verdict may be devastating for those who
counted on a particular application of the law, it carries far more force as a
motivator towards some change, than any power it wields independently, on its
own. In this even nullified verdicts grounded in the prejudice of a community
may serve as valuable witnesses to the oppressive power of that community.
[38] See Gerken, supra
note 32, at 9
(noting that we should not ignore the role that divergent voices can play in a
functioning democracy, forcing an integration of minority perspectives and
“forcing integration rather than exit”).
[39] Id. at 27.
[40] Bowen, supra note 31, at 1383.
[41] Greene, supra note Erreur !
Signet non défini., at 103
(noting that the Founders not only created multiple branches of government, but
forced those branches to compete for the citizen’s allegiance thereby
installing a constant reminder that the citizen, not the government, is the
ultimate source of power within the democracy).
[42] In order to nullify a verdict, jurors
must reach a consensus to nullify. Absent this consensus, a juror can certainly
cause a hung trial, but cannot nullify.
[43] See
David Austen-Smith and Jeffrey S. Banks, Informaiton
Aggregation, Rationality, and the Condorcet Jury Theorem, 90 American Political Science Review 34
(1996).
[44] The Court,
in defining the role of the jury has again and again stressed that one function
of the jury is to guard against government oppression and to reject law which
if unjust in its construction of application. See Ice, 555 U.S. at 167-68; Blakely,
542 U.S. at 306; Apprendi, 530 U.S.
at 476-85; Duncan, 391 U.S. at
156-57; Taylor, 419 U.S. at 530;
Johnson v. Louisiana, 406 U.S. 356, 373 (1972); Williams v. Florida, 406 U.S.
78, 87 (1970).
[45] Harper Lee, To Kill a Mockingbird.