Juries on Trial09-29-2011
Richard A. Oppel Jr.'s lead story in Monday, September 26th’s NY Times offers the latest twist on the longstanding and seemingly intractable decline of the American jury trial.
The statistics are glaring and the facts are beyond dispute. Jury trials are disappearing at an incredible rate. Here are just some facts:
•"By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts."
• "In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one."
•"The National Center for State Courts in Williamsburg, Va., found that the percentage of felonies taken to trial in nine states with available data fell to 2.3 percent in 2009, from 8 percent in 1976."
•"The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics."
•"Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago)."
Oppel points to a number of factors behind the decline of jury trials but his focus is on the increased power of prosecutors. Because of criminal sentencing guidelines that require minimum penalties for defendants convicted of specific crimes, it is the prosecutor, not the judge, who determines the sentence a criminal will receive if he is found guilty. Take, for example, the case of Orville Wollard. Wollard fired his registered handgun into his living room wall to scare his daughter’s boyfriend out of the house after the boyfriend repeatedly threatened his family. As Oppel writes:
In Mr. Wollard’s view, he was protecting his family and did not try to hurt the boyfriend, who was not hit, though the judge said the bullet missed him by inches. But after Mr. Wollard turned down a plea offer of five years of felony probation, prosecutors won a conviction two years ago for aggravated assault with a firearm. Because the gun was fired, a mandatory-minimum law required a 20-year term.
At his sentencing, Mr. Wollard said he felt as if he were in “some banana republic” and described the boyfriend as a violent drug dealer. But prosecutors said the judge had “no discretion” because of the state law.
Reluctantly, the judge agreed. “If it weren’t for the mandatory minimum aspect of this, I would use my discretion and impose some separate sentence,” he told Mr. Wollard, adding that he was “duty bound” to impose 20 years.
Oppel does not ask why we, as a society, have consistently over the last 50 years have taken the power to judge away from judges and from juries. And yet, the turn toward fixed legislative guidelines in criminal law is part and parcel of a societal-wide assault on the practice of judgment.
We continue to refuse to hold those who have tortured prisoners in Guantanamo Bay and Abu Ghraib responsible for their actions, just as none of the misjudgments on Wall Street have led to any CEO's being fired, let alone criminally charged. Just last week David Brooks reported on a study showing that teenagers were unwilling to make the most basic moral judgments. Amongst governmental and business leaders, as amongst teenagers, the ideal of holding people responsible for their actions is out of favor.
Hannah Arendt gave voice to what she called the “fear of passing judgment, of naming names, and of fixing blame—especially, alas, upon people in power and high position.” Reflecting upon the anger caused by her own judgment of the Jewish community leaders who cooperated with the Nazis in the hopes of saving themselves, their families, and others, Arendt was struck by the fear and anger that judging others provoked. She saw this fear as underlying the uproar against Rolf Hochhuth’s play, The Deputy, which accused Pope Pius XII of silence in the face of the Holocaust. She also chafed at the outpouring of angry letters accusing scholar Hans Morgenthau of un-Christian hubris for writing an essay in The New York Times Magazine pointing out that Charles Van Doren was wrong to cheat on the quiz show “Twenty One.” In all of these instances, Arendt was struck by the “huge outcry the moment anyone fixes specific blame on some particular person instead of blaming all deeds or events on historical trends or dialectical movements.” Instead of judging the wrongdoers, the people judged those who had the temerity to judge.
I wrote about Arendt's attention to our unwillingness to judge last year, in an essay that discussed, among other examples, the loss of the jury trial.
The trial, and specifically the jury trial, is, as Alexis de Tocqueville understood, one essential incubator of democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens... The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”
The decline of the jury trial is not simply a casualty of our tough on crime era; it is, in addition, a symptom of our increasing unwillingness to engage in ethical thinking that judges and assigns blame. Of course we are quick to blame those we can see as inhuman like Osama bin Laden and Saddam Hussein. However when someone who seems more like us is accused—be he a Charles Van Doren or an Orville Wollard (or even a Bill Clinton or a George W. Bush)—we have a hard time assigning moral and criminal blame. On a bi-partisan level, judgment is out of fashion.
The loss of judgment is not without consequences. As the activity of judgment withers, so too do visible exemplifications of justice. Since justice cannot be taught, but is learned from experience, the fading of public acts of judgments diminishes the idea of justice itself. There is a danger, in other words, that the decline of jury trials presages the erosion of justice.
You can read the entirety of Why We Must Judge here.
You can watch The Loss of Human Judgment here.