America's Unwritten Constitution: The Precedents and Principles We Live By (70 page)

But within the special realm of federal criminal law, wholly different rules apply. Here, so long as a private citizen can count on the emphatic support of the president, the citizen’s bodily liberty is absolutely safe from intrusion, even if Congress members and Supreme Court justices overwhelmingly favor the intrusion and oppose the president. If the intrusive bill in question is a criminal prohibition, the president has not one but two constitutional pens in his quiver—a veto pen and a pardon pen—and the latter pen cannot be overridden or overwritten by Congress or the Court. Thus, even after Congress has overridden the president’s veto, and even after the Supreme Court has declared that the bill in question is constitutionally flawless, a president can still “just say no” to criminal punishment, and make that “no” stick, simply by providing a pardon to any private citizen whose conduct may have run afoul of the law. Assuming that the pardon issues in good faith—that it springs from the president’s conscience and not, for example, from a bribe—no court could ever properly undo the pardon. Nor should any member of Congress think it appropriate to impeach and convict the president for the good-faith exercise of a power that was precisely designed to focus one honorable man’s conscience and to invite him in the name of that conscience to just say no to bodily punishment.

The greater power to issue a criminal pardon generally subsumes the lesser power simply to decline to criminally prosecute. Although the latter is typically referred to as “prosecutorial discretion,” it is best understood as a power of
non
prosecutorial discretion—an asymmetric and unilateral
power to favor potential criminal defendants. Here, too, we see a sharp contrast between the rules that ordinarily apply to federal law and the especially protective rules operative in the sphere of federal
criminal
law. No one doubts that the Supreme Court may generally oblige the president to carry out a noncriminal statute as written, but the Court has never claimed for itself authority to oblige a president to prosecute a criminal case. Nor may Congress simply detour around an immovable president by deputizing private citizens to act as criminal prosecutors. America’s Constitution does not permit private prosecutions, even as it does allow widespread private enforcement of noncriminal laws.
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Ordinary citizens do, however, have a role to play in criminal prosecutions, and this role further highlights the pro-defendant asymmetry of the criminal-justice system. In seeking to enforce federal
civil
statutes, a president typically need only manage persons within his own branch—persons generally appointed by him personally or by his underlings or his predecessors. As we saw in
Chapter 9
, so-called independent agencies are really executive-branch agencies of a certain sort. But if a president decides to enforce a
criminal
statute, he must persuade members of a truly independent agency—namely, a grand jury composed of ordinary citizens whom he did not pick and cannot remove. These citizens have every right and power to just say no to any proposed prosecution on the simple ground that they believe that prosecution would be unwise or unjust, even if technically lawful. Thanks to the explicit wording of the Fifth Amendment, if these citizen-jurors stand on conscience and just say no, no prosecution for serious federal (nonmilitary) crime can ever be brought, even if the House, the Senate, the president, and the judiciary are all pro-punishment.

Grand jurors thus share half of the power of nonprosecutorial discretion. Just as a president who says no can be reversed only by a later president (and even then only if the statute of limitations has not run), so, too, a grand jury that just says no can be reversed only by a later grand jury.

In short, the pro-defendant asymmetry visible in the special requirement of legislative bicameralism plays out in similar fashion within the executive branch. The upper and lower houses of Congress must both agree before any federal criminal law may exist; likewise, both the upper house of the executive branch (the president) and the lower house of the criminal
executive-enforcement branch (the grand jury) must also both say yes. If any of these four houses says no—perhaps as a mere matter of policy or perhaps as a matter of conscience—that single no trumps all else. In this way, the Constitution aims to ensure that no serious American bodily punishment occurs without the blessing of the American body politic.

WITHIN THE THIRD BRANCH,
a similar bicameral rule favoring criminal defendants applies: If either the upper judicial house (the bench) or the lower judicial house (the jury) sides with the criminal defendant, the defendant wins. As we have seen, eighteenth-century trial jurors could say no to punishment with irreversible finality; and so, too, could eighteenth-century judges, as a rule. If anything, this English approach, as described by Blackstone, is even more fitting in America, because this pro-defendant judicial bicameralism in criminal cases mirrors especially strict American rules for legislative bicameralism in criminal cases (rules that prohibit English-style common-law crimes) as well as especially strict American rules for executive bicameralism in criminal cases (rules that prohibit English-style private prosecutions and English-style evasions of grand juries via “information”).

EARLY FEDERAL PRACTICES
generally reinforced the Constitution’s basic structure, and many of these practices have continued unbroken to the present day. American trial juries have always enjoyed the right and power to acquit against the evidence, with no reprisals against the nullifying jurors and no possibility for retrial of the defendant so long as the jurors have acted in good faith. (In a case where a defendant or his lawyer bribed the jury, perhaps the bought acquittal might properly be set aside on equitable grounds.) Likewise, American grand juries have always had complete discretion to nullify a proposed prosecution with impunity, and there is no easy end-run around this institution for ordinary federal prosecutions.
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Good-faith presidential pardons are similarly sacrosanct. (Here,
too, bribery would raise special issues.) Federal judges have always had unilateral power to stop a prosecution from even reaching the jury and to overrule any jury conviction deemed by the bench to be contrary to law or justice. The modern law of federal jurisdiction gives convicted defendants broader avenues to challenge their punishments on appeal and via habeas corpus than did the Founding-era rules of jurisdiction and appeal. And for the past two centuries, the American constitutional system has recognized that no person may be punished for a federal offense without the specific approval of the people’s House. Thus, no treaty has ever created self-executing criminal sanctions; nor has any subsequent president emulated Washington’s mistaken effort in the Neutrality Proclamation of 1793 to create federal criminal law by executive decree.
¹⁴

In sum, the Constitution gave wide room to the consciences of the individuals personally responsible for inflicting pain or death on fellow creatures. The system privileged consciences inclined toward mercy. However, the precise situations warranting mercy were not, and probably could not have been, exhaustively codified in a compact document designed for the ages. Hence, the terse text structured several spaces for uncodifiable clemency and conscience.

ALAS, THE FOUNDERS
’
ELABORATE CONSCIENCE-PROTECTING,
mercy-tending, pro-defendant, pro-populist system currently lies in a state of modest doctrinal disrepair. Although criminal grand jurors remain free to just say no to an indictment if they find the statutorily authorized punishment overly harsh, these jurors are not always explicitly told of this conscience-based prerogative and its distinguished pedigree. Even worse, criminal trial jurors are sometimes today told (incorrectly) by the presiding judge that if the evidence points overwhelmingly toward guilt, they “must” convict. And they are almost never told that they have an absolute legal right to acquit even in cases of overwhelming guilt if they feel as a matter of conscience that the legal punishment is obscenely harsh. Nor are jurors told that they may properly engage in “pious perjury” by convicting on a lesser charge, even if the defendant is actually guilty of a greater charge,
if they find the punishment for the greater charge unconscionably severe. Nor, in many cases, are jurors today told by the judge—or allowed to be told by defense attorneys—of the brutal penal consequences that may or must follow upon a jury verdict of guilty. These failures to tell jurors the whole truth are especially troubling in cases of rigid mandatory minimum-sentencing laws requiring strong punishment upon conviction, and draconian three-strikes laws that automatically send men to prison for life upon their third felony conviction, even if the felony in question is shoplifting a baseball glove. In these respects, Founding practice was different—more generous to defendants and more respectful of jurors.

True, the power of mercy and the particular authority of a jury to acquit against the evidence—to “nullify” a criminal law in the case at hand—may be abused. The specter of bigoted white jurors refusing to convict Klansmen and other murderous thugs who have preyed on black folk looms large in the minds of modern jury critics—and with good reason, given much of American history prior to the Second Reconstruction of the 1960s. Countless specific illustrations might be offered. Perhaps the most infamous involved the murder in the mid-1950s of Emmett Till, a black youth savagely beaten and then shot dead for having reportedly flirted with a white woman in a small town in the Mississippi Delta. The all-white jury took just sixty-seven minutes to deliberate before reporting its verdict of acquittal. One juror later said, “If we hadn’t stopped to drink pop, it wouldn’t have taken that long.”
¹⁵

The haunting image of racist verdicts such as this should remind us that faithful modern constitutionalists must do more than ponder the letter and spirit of Founding-era texts. Holistic interpreters must also take account of the vision underlying the three Reconstruction amendments that revolutionized race law in America and various twentieth-century amendments that expanded upon the Reconstruction vision. Although the terse amendatory clauses of the past century and a half do not detail precisely how the Founders’ jury rules are to be modified, this textual underspecificity should not daunt us. Having already trained our senses to detect America’s unwritten Constitution alongside its written counterpart in other contexts, we need simply to put these skills to work here.

As we have already glimpsed in previous chapters, the fact that post-1789
Americans have added textual amendments as discrete and sequential postscripts to the original document poses a significant interpretive challenge. Almost no amendment fully enumerates which preceding words in the document must now be deemed wholly inoperative or must in certain respects bend to the amendment’s letter and spirit. The precise manner in which words adopted in different decades and centuries are to be synthesized to form one single coherent Constitution is to some extent left… unwritten.

Thus arises a classic challenge of American constitutionalism: gauging the constitutionally proper gravitational pull of later amendments on earlier constitutional clauses.
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BEGIN AT THE BEGINNING:
Many Founders were partial to local juries and somewhat skeptical of judges chosen and paid by the central government. The American Revolution had been won by a coalition of independent state governments arrayed against imperial officialdom. In the 1760s and 1770s, local juries and local militias staffed by American patriots had protected American liberties against judges picked by the king’s men and against imperial redcoats who also danced to the king’s tune.

Proposed in 1789 and ratified in 1791, the Bill of Rights reflected the localist spirit of 1776. It championed rights against the central government while saying nothing about rights against states and localities. It began with the words: “Congress shall make no law…” and ended with a Ninth Amendment that reinforced the limited scope of enumerated federal power and a Tenth Amendment that reserved various powers “to the States respectively, or to the people.” The Second Amendment celebrated local militias as “necessary to the security of a free state,” impliedly treating the central government’s professional army as a constitutionally disfavored instrument.
The Third Amendment likewise reflected special anxiety about a federal standing army in peacetime.

Four of the five remaining amendments explicitly or implicitly exalted the local militia’s close cousin, the local jury.
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The Fourth Amendment envisioned civil juries of the people protecting “the right of the people”—in particular, the people’s right to be secure against unreasonable intrusions, a right that jurors would safeguard by hitting abusive government searchers and seizers with punitive damages in tort suits brought by victimized citizens. The Fifth likewise contemplated civil juries determining what compensation would be just whenever government took private property for public use. The Fifth also explicitly provided that no nonmilitary criminal defendant could be forced to face serious federal criminal charges “unless on a presentment or indictment of a Grand Jury.” The amendment went on to strengthen the power of the criminal trial jury by making clear that any jury acquittal in a serious case would be final, because any second prosecution for the same offense would improperly place the defendant “twice in jeopardy of life or limb.” The Sixth Amendment specified that criminal defendants had a right not only to a trial jury, but to a local jury, at that—a jury drawn from the “district” (though not necessarily the traditional “vicinage”) where the crime had transpired. The Seventh Amendment promised to “preserve[]” the right of “trial by jury” in virtually all civil suits “at common law” and to limit the power of federal judges to overturn any fact properly tried by a civil jury.