America's Unwritten Constitution: The Precedents and Principles We Live By (72 page)

FULLY RECONSTRUCTED JURIES OF THE FUTURE
will feature more demographic diversity than ever before, and this unprecedented diversity may well require modification of the Founding ideal of jury unanimity.

Jurors from disparate backgrounds and with differing consciences may need to agree to disagree about some things. A sensible response to this unprecedented degree of jury diversity would allow nonunanimous criminal jury verdicts, but only after a minimum period of full deliberation—say, three days for a routine case, longer for a case of unusual complexity. Such a system would give an initial dissenting juror—movie buffs should recall Henry Fonda’s character in
Twelve Angry Men
—a fair opportunity to make his case to his fellow jurors, while allowing a strong supermajority to ultimately overrule a truly eccentric minority and reach closure. In this reconstructed regime, unanimity would be required for any verdict brought in within the initial deliberation period. After the expiration of that period, and once the jury has reported that no more deliberations would be fruitful, a final vote of, say, nine to three should suffice to convict, but anything short of this should count as a case-ending acquittal.

This openly asymmetrical voting rule would give some criminal defendants more protection than they receive under the current regime. Federal juries today must be unanimous to convict
or acquit
.
^*
Any vote short of unanimity counts as a hung jury permitting retrial. Thus, even if a jury today hangs in the defendant’s favor—say, with eleven votes favoring acquittal and only one vote to convict—the defendant may be put through the wringer again and face death or imprisonment if unanimously convicted in a second trial.

Would nonunanimous juries pass constitutional muster? The Constitution does not explicitly require unanimity, but of course proper analysis cannot simply leave it at that. After all, the document does not explicitly authorize jury acquittals against the evidence. Nor does the Constitution explicitly require a jury of twelve persons. But surely most Americans at
the Founding understood that these elements were built into the very word “jury.” The petit jury, as the Founding generation knew and used this institution, comprised twelve men empowered to find guilt or to just say no as a matter of fact or conscience. By the same token, some might argue that the word “jury” as understood at the Founding implicitly connoted a body that needed to act unanimously in any criminal trial.

Modern Supreme Court case law has garbled these matters and has slighted various original understandings. The most egregious garbling has occurred in case law concerning the proper size of a petit jury. May a jury properly consist of five persons? Certainly not: Five or fewer persons do not a jury make, said the Court in the 1970s. But a six-person jury—that’s okay, said the Court in that very same decade.
²⁰

Huh? The distinction between five and six is of course completely arbitrary, with almost nothing behind it. Where in heaven’s name did this line come from?

Of course, the line between eleven and twelve might also look arbitrary as a matter of pure logic—but this line has a vast amount of pre- and post-Founding history behind it. Virtually all eighteenth-century criminal juries in England, the American colonies, and the newly independent states had twelve members. Thus, the number twelve was implicit in the word “jury” itself, as that word was generally understood and embodied in 1787: A criminal trial jury was, in a phrase dating back to the seventeenth century, “
twelve
good men, and true.” The post-1787 gloss placed on the word “jury” by early and unbroken federal practice, and the kindred practices of almost every state, operating under similarly worded state constitutions, further confirm that twelve is the magic number. Although some erosion occurred in various states long after the Founding, even in 1970, when the Court read the Sixth Amendment to permit six-person juries in serious felony cases, the overwhelming majority of states—forty-five, to be precise, accounting for roughly 85 percent of the nation’s population—used twelve-person juries for all serious crimes, as did the federal government.
²¹

The issue of jury unanimity, however, is rather different from the issue of jury size. First, any move away from unanimity does not logically unravel in the same way that any move away from twelve jurors does. Once a jury is allowed to comprise fewer then twelve members, there is no logical and
principled stopping point. (Yes, modern Court case law stops the unraveling at the number six, but there is absolutely no principled or logical basis for this made-up number.) But there are indeed logical and principled stopping points short of unanimity. Surely a criminal conviction requires at least a majority vote—at least seven of the twelve jurors—if the pro-defendant asymmetries of
Winship
and of the criminal-justice system as a whole mean anything. Indeed, at least eight out of twelve votes would seem to be structurally required to convict: It should take at least as high a percentage vote to take a man’s life or to put him in prison as it does to oust him from office in an impeachment trial (where the Constitution requires a two-thirds vote to convict, and asymmetrically treats any lesser vote as an acquittal).

Second, for centuries actual practice has permitted nonunanimous verdicts of a certain sort. As previously noted, whenever the first jury hangs, the government has generally been allowed to reprosecute the defendant and to convict him if all twelve jurors in the second trial so vote. But to say that the jurors were truly unanimous in these situations is to indulge in a counting trick. The claimed unanimity simply ignores the juror or jurors (perhaps eleven of them!) in the first trial who voted against conviction.

Most important of all, moving away from jury unanimity may simply be the necessary consequence of full enforcement of the post-Founding right-to-vote amendments. Once modern America, in a dramatic break with the Founders, fully guarantees all adult resident (nonfelon) citizens a federal constitutional right to vote, on juries and elsewhere, the increased demographic diversity on juries resulting from this full implementation of post-Founding amendments may well entail further necessary adjustments of the Founders’ jury vision. The Founders’ juries could typically reach unanimity in part because so much of American society was excluded from these decision-making bodies. Once all are properly included, in keeping with post-Founding amendments, it may be as unrealistic to expect jury unanimity as it is to expect House unanimity or Senate unanimity—or Supreme Court unanimity, for that matter.

SPEAKING OF THE COURT,
let us now conclude our general discussion of conscience by turning away from jurors and toward judges and justices. What role does and should conscience play in judicial decision-making?

Most lawyers and scholars would probably agree that a judge interpreting the Constitution may properly consult her conscience as a tiebreaker if the purely legal sources at hand are perfectly balanced. If all the legal considerations are in exact equipoise, something is needed to tip the scales, and the judge’s heartfelt sense of right and wrong seems a far better tiebreaker than, say, a coin flip. Also, the judge’s social conscience provides a lens through which she views all legal materials. In deciding, for example, whether a particular patch of statutory or constitutional text truly means what it seems to say, background understandings of social conscience and common sense come into play. It is precisely factors such as these that underlie the Blackstonian rules of interpretation demanding that the law must speak with distinctive clarity before it will be read to make a man a judge in his own case, to punish conduct that was innocent when committed, or to prevent a defendant from introducing reliable evidence of his innocence at trial—or, indeed, to do any number of things that would seem to the faithful interpreter to be absurd as a matter of common sense or common decency.
²²

Structurally, the judicial conscience should play an especially large role in the criminal-justice system. Judges may not be better than the rest of us in deciding the excruciatingly hard moral questions raised by, say, abortion or assisted suicide, but they do have special expertise concerning a criminal-justice system that operates in their own courtrooms and that pivots on their own personal signatures on death warrants and harsh prison sentences. Having wrongly prevented jurors from giving full vent to conscience and mercy, judges should in various situations use their own consciences to fill the conscience gap that they themselves have helped to create.

For example, trial judges should be recognized as having broad discretion to be merciful to criminal defendants.
Cruel
and unusual punishments are expressly prohibited by the Constitution;
merciful
and unusual
punishments are not. Although current doctrine often gives effect to trial-court mercy, it does so in indirect and legalistic ways that are simultaneously overbroad and underinclusive. Currently, when a trial judge at the close of evidence dismisses the jury and declares that a criminal defendant is “acquitted,” that acquittal is immune from appellate review and reversal—even if the acquittal was based on a clear statutory misreading or other legal gaffe on the part of the trial judge. (Imagine, for example, that the trial judge erroneously thinks that the criminal statute applies only in cases of premeditated misconduct, when the statute actually contains no such premeditation requirement.) There is nothing in the double-jeopardy clause, rightly read, or in first principles of justice, giving a defendant a vested legal right to walk free whenever the trial court misreads the statute books. The Constitution could instead be sensibly read to allow appellate courts to treat all pro-defendant dismissals by trial judges as provisional—as “pre-acquittals” that ripen into true case-ending acquittals only when the underlying legal rulings are confirmed as legally correct by the appellate bench. Going too far in the other direction, current doctrine today withholds from a trial judge a general power to openly set the defendant free on the simple ground that this judge—the only judge who has heard all the evidence and seen the defendant herself—sincerely believes that harsh punishment would be utterly unconscionable.

Similarly, Supreme Court justices today who are morally troubled by certain death-penalty cases that come before them often feel obliged to announce that a death sentence in the case at hand would be “unusual” given the underlying crime and the circumstances of the defendant, when what they really sense is that, in their personal view, a death sentence would be unconscionable—something that they cannot in good conscience personally sign on to. In recent decades, four justices—William Brennan, Thurgood Marshall, Harry Blackmun, and John Paul Stevens—at various times and with various degrees of absolutism, have condemned the death penalty across the board. Perhaps these condemnations are better understood as personal statements of conscience than as earnest interpretations of society-wide morality and practice. Consider the strikingly personal words of Harry Blackmun, who, after years of struggling with the death penalty, announced near the end of his tenure on the bench that he would
henceforth vote against any capital sentence that came before him: “From this day forward, I no longer shall tinker with the machinery of death.”
²³

A heartfelt statement like this is closer to judicial civil disobedience than to standard judicial review. Like other forms of civil disobedience, judicial statements of this sort are dangerous medicine. In a well-functioning democratic society, such civil disobedience must ultimately aim to prick the consciences of the disobedient’s fellow citizens. As an act of one conscientious objector appealing to the consciences of other presumptively virtuous members of society, this disobedience should be openly expressed, and the disobedient should be prepared to suffer personal consequences if his fellow citizens strongly disagree. Indeed, this courageous willingness to suffer personally is part of the principled logic and nobility of civil disobedience.

Whereas a simple good-faith legal interpretation of the word “unusual” is obviously not a proper basis for impeachment, the case of a judge who openly and routinely votes against death sentences as a pure matter of personal conscience seems different. Here, America’s unwritten constitutional traditions offer no ironclad immunity from the possibility of impeachment—personal punishment for a personal stand. What the good-faith judge hears as the voice of conscience may strike some congresspersons as judicial willfulness. House and Senate members might plausibly think that a judge who cannot in good conscience apply the criminal law as written should simply recuse himself, rather than sit in judgment and nullify the law for purely personal reasons. In an ideally functioning system, however, the threat of actual impeachment should be extremely remote, so long as all political actors understand the special role that conscience and mercy may properly play in the criminal-justice system.

It must be stressed that encouraging judges to openly disregard certain harsh criminal laws or sentences in cases of conscience is very different from inviting judges to invalidate laws generally because of the judges’ policy views or even their moral compasses. What is under consideration here is a special category of cases where judges (1) with their own hands are being asked to do things they consider (2) absolutely unconscionable (as opposed to merely unwise) to (3) vulnerable human beings (4) who are personally standing before them in the courtroom, and (5) are all the more
vulnerable because the judiciary itself has erroneously eliminated various rights of jurors to give full effect to conscience and mercy.

PERHAPS UNWITTINGLY, THE BEST CASE
for judicial (and juror) conscience in the criminal-justice system was made by a jurist who is well known for his hard-nosed view of the law and the ordinary judicial role: