Acprof 9780199874095 Chapter 7

Reviving the Jury
Punishment, Participatory Democracy, and the

Jury
Albert W. Dzur
Print publication date: 2012

Print ISBN-13: 9780199874095
Published to Oxford Scholarship Online: September 2012
DOI: 10.1093/acprof:oso/9780199874095.001.0001
Reviving the Jury

Active Juries, Juror Activism, and Institutional Change
Albert W. Dzur
DOI:10.1093/acprof:oso/9780199874095.003.0007
Abstract and Keywords

How can the jury—or something like it—increase its standing within criminal
justice? The American Bar Association and other organizations concerned about
the jury’s decline have urged a “more active jury” with measures like jury note
taking and questions for witnesses. Academic supporters endorse these reforms
but overlook the possibility of broader institutional change. By contrast,
grassroots activists advocating the “fully informed juror” seek to redress power
imbalances within the courtroom through nullification. This chapter argues that
both movements needlessly accept a dichotomy between lay and professional
judgment; each favoring a different side, neither conceive co-responsibility for
criminal justice. It suggests two institutional changes instead. First, carefully
crafted jury sentencing authority—accepted practice for capital cases, for some
components of civil cases, and in a handful of states for noncapital cases—can
transparently rather than covertly empower laypeople in the court and may also
moderate citizen influence on sentencing. Second, limits on plea bargaining
should be considered. While plea bargaining is often justified by reasons of
efficiency and cost, the penal state has its own inefficiencies and high economic
and social costs that can be fully comprehended by the public only via greater
participation in the criminal justice process.
Keywords: American Bar Association, criminal justice, fully informed juror, grassroots activism,
institutional change, juror questions, jury nullification, jury sentencing, participation, plea bargaining
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Reviving the Jury
Americans obey the law not only because it is their own handiwork but also
because they can change it if by chance it does them harm. They submit to
an injurious law, first because it is an injury they have done to themselves,
and second because they know their suffering will be brief.
—Tocqueville
Access Points
Previous chapters have defended the idea that public engagement in the internal
and external dialogues that constitute criminal justice forms the normative core
of any well-functioning system. Further, they have stressed that this engagement
must be concrete and not merely symbolic; the humanity of the law, its
execution, and its effects cannot be guaranteed by the bare existence of formal
democracy involving free elections, transparent legislative procedures, with
good-faith executive application and judicial oversight. Since no aspect of this
process escapes public skepticism today, it is critical that there be robust access
points into the system, to borrow Anthony Giddens’s phrase, that bring people
face-to-face with their fellow citizens—both those who enforce the laws and
those who have them enforced upon them.1 To reform the contemporary penal
state, access must also actually be taken up by responsibility-sharing citizens.
(p.126) The traditional jury trial is a historically important but currently

emaciated access point to the criminal justice system. Though they rarely frame
their efforts as participatory democratic instances of rational disorganization,
reformers seeking to revitalize the jury trial are driven by legitimacy concerns
and by the goal of producing better justice than mainstream routines currently
permit.
A Tale of Two Movements

The Active Jury Movement of Court Professionals and Academics
Pressure to revive the American jury has intensified as the number of jury trials
in state and federal courts has declined in the last two decades. Nonresponse to
jury summonses and failure-to-appear rates have climbed in many courts and the
average juror’s competence in complex cases is a perennial topic for journalists
discussing controversial verdicts.2 In reaction to what has been called the death
of the jury trial, strong defenders have risen up not outside the courtrooms but
inside: prominent judges, lawyers, and professional organizations—the gray
wigs, not the grass roots.3 The American Bar Association declared 2005 the year
of the jury and the first week in May as juror appreciation week.4 Publicity
campaigns emphasizing the institution’s importance to the functioning of
American democracy quote Jefferson on the jury as the bulwark of democracy,
Tocqueville on the jury as a political institution fundamental to American
democracy, and, as noted earlier, even Harrison Ford asserting that “in real life
the jury decides the ending.”5
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One of the reasons for deploying a well-known Hollywood celebrity in an

advertising campaign is to counter negative publicity generated by the previous
decade’s high-profile jury trials that resulted in the acquittals, in 1992, of police
officers Stacey Koon and Laurence Powell of the charges of assaulting Rodney
King and, in 1995, of O. J. Simpson who was accused of murdering Nicole Brown
Simpson and Ron Goldman.6 Such trials sparked critical news commentary as
well as increased skepticism among legal academics, who wondered aloud
whether juries were technically competent to handle contemporary cases in
which many relevant facts depended on scientific evidence.7
Another reason for the advertising campaign is to address a deeper concern that
the jury no longer serves as an access point to the criminal justice system and
fails to constructively link the public to the complex issues handled by it, a
concern that has arisen in firsthand reports of jury service (p.127) and general
public opinion surveys.8 Though aspects of the service are highly valued,
including the sense of living up to an important civic duty, many citizens are
repelled by the lack of inclusion and courts’ failure to allow dialogue. As
previously mentioned, Burnett’s book, A Trial by Jury, captured his experience as
a jury foreman in a New York murder case and documented the substantive legal
difficulties faced by jurors wrangling with the standard of reasonable doubt
mandated by law to convict the defendant of murder or manslaughter. The
jurors’ greatest frustrations, however, came from the confining nature of the
court, in particular, their inability to ask questions and write notes during the
trial, and also their inability to influence the degree of punishment entailed by a
guilty verdict.9
In response to these problems of bad publicity, lack of inclusion felt by

laypeople, and the declining number of jury trials more generally, court
professionals have sought out ways of educating and empowering the jury. The
hope, put quite baldly in position statements and memos, is that aiding juror
comprehension and improving jurors’ trial experiences will make trials better
and improve public perceptions of the courts. To these ends the American Bar
Association has officially endorsed nineteen fundamental principles for
upholding and strengthening the jury, including:
— Juries should have twelve members.

— Jury decisions should be unanimous.
— The court and parties should vigorously promote juror
understanding of the facts and the law.
Under this last principle, the association recommends allowing jurors to take
notes; that notebooks be provided for some cases containing the court’s
instructions, copies of the exhibits, and other complex material presented in
court; that jurors be able to submit written questions for witnesses in civil cases
and in some criminal cases; and that jurors be allowed to talk with each other
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Reviving the Jury
about legal arguments and evidence during trial breaks, not just at the end in
official deliberations.10
The association’s recommendations reflect the impact of the active jury reform
movement instigated by academic researchers and reform-minded court
professionals. Beginning in 1989, courtrooms in a majority of American states
have participated in experiments allowing jurors to question witnesses during
trials.11 Arizona judge B. Michael Dann, an influential reformer, rejects “the
traditional passive role of the juror” in favor of “several techniques intended to
create more juror participation in trials.” (p.128) “Jurors,” for Dann, “must be
allowed greater roles in trials if juries are to remain up to the task of resolving
today’s disputes and if the institution of trial by jury is to retain its vitality.”12
Jury passivity, the end result of a “struggle for power and control over the trial
that was successfully waged by judges and lawyers” poses two risks: It “severely
compromises the jury’s ability to understand the evidence and law and to render
an accurate verdict” and it also denigrates “the jury as a democratic
institution.”13 Nevertheless, many lawyers and judges resist more active juries
out of “fear of losing total control over the trial and fact-finding processes.”14
Like the theorists reclaiming the court as a public communicative space and
those urging the creation of jury-like policy forums such as citizen juries and
deliberative polls, Dann and other active jury advocates criticize the
communication deficits of contemporary courts that impede justice at the level
of the individual case. A note-taking juror would be better equipped to follow
complex legal narratives, comprehend detailed presentations of evidence, and
understand the judge’s instructions. A juror able to ask questions could clarify
testimony and correct misperceptions. Also important, jurors’ questions would
provide feedback to the judge and lawyers about whether essential information
had been successfully conveyed. As it stands, court professionals depend on
silent jurors’ facial or bodily cues to determine their comprehension of
arguments and evidence.15
Communication deficits of contemporary courts also block the kind of lay

engagement in the courtroom that would foster a two-way flow of information
between the public sphere and this professionalized domain. Active jury reforms
that improve the trial’s educational atmosphere, thus allowing jurors to better
understand and resolve disputes, will also ramify outward to improve the
relationship between courts and the public by restoring citizens as power-
sharing members of the judicial process. Such arguments are often connected to
a civic history of the jury as a device to protect individual rights and as a long-
standing, if not fully appreciated, democratic institution.16 In this reform
narrative alert jurors contribute to adjudication while at the same time
preserving public ownership of criminal justice.
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Though the lay public’s role in improving courtroom dialogue is at the core of
their framework, active jury reformers have not sufficiently appreciated its
critical implications for extensive institutional changes. “We need ‘democratic
courtrooms,’” argues Judge Dann, “where jurors enjoy explicit ‘speaking rights’
regulated by rules and procedures necessary to ensure a fair trial.”17 Yet Dann’s
position is framed as an educational effort (p.129) to shore up the flagging
attention span of lay citizens, an exercise not of participatory dialogue but
applied psychology.18 It is from the standpoint of education research pointing to
active learning as necessary for the retention of information and for problem
solving that Dann critiques common procedural restrictions on juror note taking,
questioning of witnesses, and deliberation during the trial as incapacitating for
jurors. Echoing the hierarchical civic schoolhouse model of the jury discussed in
chapter 4, active jury researchers Shari Diamond et al. portray jurors as “like
students in their attempts to understand the material being presented to them at
trial” and court professionals as “instructor[s] in a classroom.”19
Scholarly support for a more active jury is wide but shallow. There is a rough
consensus among academic advocates of the jury on the following claims:
— The Constitution and legal history support a robust role for the jury
in criminal justice.
— Juries have juridical benefits because they bring relevant
knowledge and practical experience into the courtroom.
— Juries have political benefits because they educate citizens in the
law.
The current decline in jury trials, therefore, is of considerable concern. And yet
very few jury scholars defend much more than the measures Judge Dann
prescribes. Indeed, court permission for jurors to ask questions during trial and
talk with each other during breaks is characterized by academic advocates as a
“radical” reform and the “ultimate departure from passivity.”20
Neil Vidmar and Valerie Hans point to the increased use of jury-like tribunals in
other countries as an example of “signs of vitality” but say nothing about
reforms that would increase jury use in the United States.21 Nancy Marder
mentions measures that would “make jury service as positive an experience as
possible,” such as improved jury duty websites that provide information on court
calendars and better technology within the courtroom that help clarify the
delivery of the judge’s instructions and the lawyers’ presentations.22 While these
academic advocates claim that “our verdict is strongly in favor of the American
jury” and that the institution is “central to our democracy,” they also take clear
notice of the jury’s shrinking domain in criminal adjudication.23 If there are too
few jury trials, why not advocate more? If juries are too weak inside the
courtroom, why not propose more powers and not just pencils, notebooks, and
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Reviving the Jury
questions?24 (p.130) What explains the wide but shallow endorsement of the
jury among academic supporters?
A defensive approach has typified academic jury advocacy for the last half
century. Devlin’s Trial by Jury, for example, ends with glowing praise for the jury
as a “little parliament” and “the lamp that shows that freedom lives,” yet the
core narrative is ambiguous, and the book begins by noting how strange it is
that twelve randomly selected people untrained in the law would be given such
an important and challenging task as examining and weighing evidence in court.
It is “a ridiculous and impracticable idea,” writes Devlin.25 “Theoretically it
ought not be possible to successfully enforce the criminal law by such means.”26
Devlin argues that underneath the surface of an ostensibly “ridiculous and
impracticable” democratic institution is a good deal of expert direction provided
by judges. Kalven and Zeisel’s American Jury takes a similar stance, focusing on
the differences between judge and jury verdicts as a problem to be solved.27
Their social psychological framework, emulated by many subsequent jury
researchers, emphasizes small-group dynamics rather than a political theoretical
framework that considers the jury as a power-sharing institution.
The upshot of recent academic advocacy is to portray the jury as a rough-hewn

body within an otherwise smoothly functioning modern courtroom. Academic
advocates and critics of the jury alike seek to explain how the lay component of
the jury trial can fit into a professionalized domain and to discuss its value. This
narrative characterizes the jury as a lay entity helping the judge with what is
primarily his or her job of official adjudication, something that can be done more
consistently if laypeople have adequate tools and proper on-the-job training.
Marianne Constable rightly criticizes this tendency of academic advocates to
presume that “‘law’ means the law of the officials, a law that contrasts to the
‘beliefs,’ ‘sentiments,’ and ‘attitudes,’ expressed in jury verdicts.”28 “Such
formulations,” she points out, “preclude the possibility of asking the more
radical question: ‘How is it that judges and legislators have come to lay claim to
what is called ‘law’?”29 As this book has also argued, there are good reasons to
reject the conception of the jury as the judge’s helper and to insist instead that it
is a rightful coparticipant in the judicial branch. While active jury advocates
presume the jury requires more education and better equipment to understand
the judge, the participatory democratic view suggests court professionals too
need to change their understanding and institutional patterns so they can learn
from juries. Once criminal justice is seen as coconstructed in the courtroom by
both judge and jury, the decline of the jury becomes a major and not a trivial
problem.30
(p.131) Another reason for the underdevelopment of the active jury argument’s
more public and political dimensions may be related to the fact that this is a top-
down movement of academics and court professionals rather than a grassroots
citizens’ movement of former jurors demanding changes to the status quo. In
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Reviving the Jury
Ohio, for example, momentum for a more active jury has come from the chief
justice of the state Supreme Court, who recently established a task force to
study and report on a number of proposed reforms. Over fifty judges took part in
a six-month pilot project that tested the usefulness of reforms such as juror
notebooks and juror questions for witnesses. Commenting on the project’s
rationale, the chief justice emphasized juror ability and juror experience but
failed to specify concretely what more active jurors contribute to the dialogue of
justice inside and outside the courtroom: “We believe in the jury system more
here than in any other country in the world. It’s important that jurors feel that
courts are welcoming them into the process. For too long, we’ve treated jurors
as if we didn’t want them to be too smart.”31 At the end of its two-year term, the
judicial task force endorsed notebooks and questions with equally vague
language: “The jury room is where citizens participate in the administration of
justice, and the importance of juries in our system cannot be overstated,” the
chief justice announced after the report was published. “This comprehensive
package of reforms is a sensible and well-researched way to strengthen this vital
institution and improve the quality of justice for all Ohioans.”32
Despite the forceful, if murky, rhetoric, in Ohio and in most other states, the trial
judge has the discretionary authority to ban juror questions totally from her
courtroom, to ban them in some kinds of cases, and to allow some questions
rather than others from being submitted to a witness in any given case. Further,
even when a judge assents to notes and questions, she can easily and subtly
discourage an active stance taken by a juror by exhibiting a casual or dismissive
attitude toward notes and questions during the judge’s instructions to the jurors.
Arguments for a more active jury sound like common sense: To do their job of
determining guilt or innocence jurors need to actively learn about the facts at
issue, to ask questions, to take notes, to deliberate throughout and not merely at
the end of the trial, to review evidence. There are deeper issues at stake,
however, regarding the jury’s role in fostering greater reflectiveness about
criminal justice inside and outside the court, issues more relevant to the
immediate challenges faced by the system. Active jury reforms spark more
radical questions: What is the job of the jury and who fixes its parameters? What
disaffected jurors find frustrating is not (p.132) simply the lack of information
or education about the law or the case, but their diminished place and voice in
the proceedings. They want to be more responsible for the decision, but feel as if
they are merely an instrument and not an agent of the court’s business.
Notebooks and questions are steps in the right direction, but they only go a
short distance in empowering the voice of the jury and rendering it more
accountable for decisions.
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Reviving the Jury
The Citizen-Activist Movement of the Fully informed Jury Association (FIJA)

From the grass roots comes a very different movement drawing attention to the
jury’s decline in the American courtroom. Founded in 1989, with a network of
citizen activists currently working in most of the states, the Fully Informed Jury
Association (FIJA) calls for what it understands as a rejuvenation of the juror’s
role within the courtroom. Fully informed means jurors should be aware that
they already have the constitutional power to be active in the courtroom. In
addition to serving as fact assessors and interpreters of the stated law’s
applicability to the case at hand, jurors should also serve as potential critics of
the law. This critical consciousness function is thought to be part of the
traditional eighteenth-century rationale for the jury and is permitted, in
contemporary practice, by the fact that jurors cannot be punished for rendering
a general verdict of not guilty even if the trial judge disagrees with that verdict.
FIJA was started by Don Doig and Larry Dodge “in the interests of personal
liberty.”33 Based in Montana and active in the state’s libertarian party, the
cofounders initially established a network of supporters by reaching out to other
grassroots organizations with an ideological affinity for the founder’s libertarian
beliefs. As it grew it gained adherents from a wide spectrum of political causes.
“It’s the strangest coalition I have ever seen,” Dodge told a reporter. “The anti–
gun control people were whining that they were in the same group as people
who want to decriminalize pot. The redwood tree huggers didn’t want to be with
the gun nuts. But that’s O.K. People form together around an oppression, and
then they come to see us.”34
One practical goal of the organization is to promulgate bills in state legislatures

that would “restore the political function of the jury as the final check and
balance on our American system of government.”35 The core element of FIJA’s
model bill reads as follows: “An accused or aggrieved party’s right to trial by
jury, in all instances where the government or any of its agencies is an opposing
party, includes the right to inform the jurors (p.133) of their power to judge the
law as well as the evidence, and to vote on the verdict according to
conscience.”36 Some versions of this legislation compel judges to instruct
empaneled juries of their right to nullify a law being applied in the case before
them if it violates their conscience. Other versions simply allow attorneys to
instruct juries of this right. Judges who balk at such instructions would be
penalized. FIJA-inspired bills like these have been introduced in twenty-one state
legislatures, but so far none have been passed into law.37
The organization has been more successful in a second practical goal of

consciousness-raising regarding the jury’s nullification power. FIJA activists post
signs in public places declaring the rights and obligations of the fully informed
juror. One poster, with an image of a diverse and thoughtful group of twelve
people at its center, proclaims: “The biggest and most powerful law enforcement
agency in the United States has the absolute, non-negotiable power to ignore
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laws, judges and prosecutors, to keep people out of prison, to make any jury trial
come out the way they want it, and to make our government honest. What is this
agency? The Fully Informed Jury.” A toll-free number provides instructions and
information about jury nullification. More controversial is the distribution of
brochures and other materials at courthouses and outside courtrooms. FIJA
activists have been prosecuted for jury tampering, and some have garnered stiff
fines and jail time as a result. Though costly for activists, such conflict with the
establishment furthers the consciousness-raising goal and has kept FIJA in the
news even during periods when public interest in juries and nullification has
ebbed.
FIJA’s normative ideal of the fully informed juror is complex. To be fully informed
is to recognize that there is a legitimate place for jurors to judge the law being
applied in the case. “Before a jury reaches a verdict,” one FIJA leaflet instructs,
“each member should consider: 1) Is this a good law? 2) If so, is the law being
justly applied? 3) Was the Bill of Rights honored in the arrest? 4) Will the
punishment fit the crime?”38 Being informed means understanding that jury
verdicts help “check, balance, and guide all three branches of government.”39
Flowing through these procedural elements is an ideology of suspicion, however:
“Many existing laws erode and deny the rights of the people. Jurors protect
against tyranny by refusing to convict harmless people.”40 “The highest and best
function of the jury is not, as many think, to dispense punishment to fellow
citizens guilty of breaking the law, but rather to protect fellow citizens from
tyrannical prosecutions and bad laws imposed by a power-hungry
government.”41 This ideology of suspicion casts a bleak light on court
professionals:
(p.134) Corrupt prosecutors and judges are common. Anyone can easily
go through the process to become a lawyer or judge. The US is overrun by
them. They are common people, who hold no more intelligence or
reasoning ability than any other common person, and often less because of
their egos and craving for more power. The duty and design of the citizen
juror is to apply reasoning devoid of any craving for power. Lawyers and
judges literally cannot understand that concept, even if they read these
words, which is why wise people instituted the citizen jury system.42
Thus to be fully informed is to “be alert” to limits on jury power instigated by

court professionals, “be aware” that “thousands of harmless people are in prison
simply because their juries weren’t fully informed,” and “be active” in and out of
the courts.43
A juror who comes to a trial intending to make it instrumental to a particular

substantive political agenda clearly violates the norms of participatory justice
endorsed in chapter 5. The cause, whether it is the legality of marijuana or the
illegality of gun control, should not be a barrier to hearing the facts and
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weighing the arguments of the opposing sides. Thus many critics of FIJA object
to fully informed jurors because they have prejudged the case by bringing
decisive political opinions into the courtroom.44
But suppose that a fully informed juror is not someone with a specific political
cause she intends to support through her verdict. Would the normative ideal of
the fully informed juror advocated by FIJA then be coherent and compelling?
Still problematic is FIJA’s ideology of suspicion casting the citizen in opposition
to government. As stressed in chapter 2, such an oppositional stance is a kind of
thin populism that undermines any long-term commitment to citizen
responsibility for government—the central norm of participatory justice.
Opposition and responsibility join together in matters of civil disobedience, to be
sure, but these are two different attitudes that fit poorly as a model for ongoing
action within an institution. As argued in chapter 4, it is ambivalence that is
valuable for taking up citizen responsibility, while blind deference or automatic
distrust shirks that responsibility. If FIJA’s fully informed juror is ambivalent, if
she is owning up to her responsibility for the law, and if she is committed to
paying close attention to both the facts and the law, then she adheres to the
participatory justice norms I have advocated. But if these characteristics are
absent, learning is not involved, moral and civic obligations are unshouldered,
and justice is at risk.
Consider the following example: A juror in a petty-theft case sees a folder on the
defense attorney’s table indicating the defendant falls under (p.135) the three
strikes sentencing rule.45 Let us stipulate she believes too many Americans are
currently incarcerated and that punishment tends to be too severe in this
country. Though the facts of the case show beyond a reasonable doubt that the
defendant stole one piece of pizza, the juror votes not guilty. How is this
different than the FIJA position? It may not be different, but it is acceptable if
and only if she has been suitably open to the evidence, to the law, and to the
competing legal arguments in this particular case. As Marder rightly states, a
jury that “gave full and careful consideration to the facts and the law” and
“disregarded the law only in the sense that after full discussion of the law and
how it could be interpreted, it chose not to follow the law” is fundamentally
different from the jury that “ignored the law” and reached its verdict “with a
complete disregard for the law.”46
Jurors should be responsible, load-bearing participants in a government

institution. They are not in perpetual opposition to government. To her credit,
the ideal fully informed juror is surely more of a load-bearing participant than
the ideal juror of academic active jury advocates, but she is also less
responsible; she has unjustifiably narrowed the range of her civic obligations.
She has duties to the specific victim affected in the case, to the democratic
process that ushered forth the laws at issue, and to the constitutionally
established court institutions themselves. Because of these duties, a veto or
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trump on a conviction can be made only with a sober attention to the details of
the case. The veto cannot be preprogrammed, but must emerge as the most just
option once all the other possibilities are given due consideration. While jurors
do not have to be automatically trusting and deferential, a default attitude of
respect rather than disrespect for court professionals is required to properly
value competing evidence, testimony, and legal narratives. FIJA stresses juror
attentiveness to harmless or victimless crimes, but the ideal juror must be open
to the possibility that her understanding of legal concepts like harm and
victimless crime is incomplete and that court professionals may present good
moral and legal arguments for a different interpretation. Fully informed jurors
must be vulnerable to, not sealed off from, the public reasons pressed on jurors
by good legal arguments offered during the trial. If they are merely delivery
mechanisms for preexisting moral or political commitments, they are violating
their juror’s oath.47
Just like their milder active jury cousins, nullification proponents needlessly
accept the common dichotomies placing lay judgment and action outside normal
court routine while situating court professionals’ judgment and action at the
center of what is deemed official and legitimate. “The law (p.136) is the law of
the officials,” under this dichotomous perspective, writes Constable, “not that of
the community. Such law finds itself in conflict with the morality of the jurors.”48
Yet there is as little reason to concede second-class citizenship within the
courtroom and ask for court professionals to be better instructors as there is to
insist on an oppositional attitude toward court professionals as domineering
government officials. As we saw in chapter 4, a long tradition views the jury as
having a fundamental place in the courtroom and within the judicial branch of
government, as partner, not subordinate in the process of reaching just verdicts.
Indeed, some recent legal textbooks present this as an acceptable view and no
merely historical stage of the jury’s development:
In our governmental scheme, there are three branches of government—the

executive, legislature, and judiciary. The judiciary consists of both judges
and juries. The jury is a coordinate branch of government, performing the
political function of holding in check the other branches of government.
The jury, drawn from the citizenry and serving for one case only, provides a
counterbalance to the enormous power that judges … wield.49
This view places nullification in a different light, not as a war between judge and
jury, but as a feedback mechanism whereby one part of government signals to
another part—the executive or the legislative—that it has overreached or made a
mistake. Nullification is simply an overly dramatic and derogatory name for the
kind of discretionary power also held by the judge, who can decide to allow some
kinds of evidence but not others, some lines of questioning but not others, and
by the prosecutor, who can choose not to bring a case to court and who can
determine what precise charges to bring against a defendant. Under the terms
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of the common but mistaken dichotomy separating lay from professional

judgment, what is routine business for the officials, the judges and prosecutors,
becomes illegitimate nullification for the laypeople of the jury, even though they
too should rightly be considered officials for the duration of the trial.50
Even if we shift our focus to the core issue of discretionary power, however, the
problem remains that the less public and transparent the exercise of this power,
the more likely it will be abused and the less it will contribute to a courtroom as
a public communicative space. The jury’s legitimate power has been mistakenly
confined in contemporary courtrooms, thus nullification is the only mode of
protesting inapplicable, overreaching, and obsolete laws or judicial instructions.
Though nullification is acceptable, in my view, if juries have followed the norms
of participatory justice (p.137) discussed earlier, nevertheless it is clearly an
institutional perversion to call a person not guilty of an offense she has
committed in order to produce a just outcome. Even under the most justifiable
circumstances, the fundamental problem with nullification is that a sleight of
hand has taken place: The guilty person is not innocent, but guilty of violating an
unjust or inappropriately applied law. This sleight of hand means that the verdict
fails to communicate a clear message, since at least three things could be
signaled: The defendant was in fact innocent; or she was guilty and either the
jury made a mistake in its fact finding or the prosecutor made errors in
presenting the case; or she was guilty and the jury nullified the law. Better by far
are practices like jury sentencing that permit the public and straightforward
exercise of jury discretionary power.
Jury Sentencing
A guilty verdict with a waived or minimal sentence would send a clear message
from the jury about the suitability of the prosecution or the law itself. To do this,
juries need sentencing authority, an institutional reform that, though favored
only by a small minority of legal academics and court professionals, has received
increased attention in the last decade. One reason for the attention is the
conflict between mandatory minimum sentencing rules and the right to jury
trial. A line of Supreme Court cases has determined that elements of a case that
trigger mandatory sentences must be given the opportunity to be tried by jury.
As jury authority has been affirmed in these cases, broader questions about how
far the dimensions of this authority reach in the sentencing process have been
raised.
Part of the revolutionary-era American wariness of judicial discretion, jury

sentencing in noncapital offenses was common throughout the nineteenth
century and into the first few decades of the twentieth century. In the 1930s
more than a quarter of American states allowed juries a role in sentencing in
noncapital cases.51 With the professionalization of the judiciary in the
background, the rise of plea bargaining and the development of parole boards
made jury sentencing increasingly out of step with the trend toward efficiency
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Reviving the Jury
and expertise. Now only six states permit jury sentencing for noncapital
offenses, typically using what is known as a bifurcation, in which the jury first
renders the verdict and then reconvenes to consider relevant information
regarding sentences.52 However, jury sentencing is required for the death
penalty and is a component of civil jury trials, in which juries can assess
compensatory and punitive damages. (p.138) Thus advocates of jury
sentencing argue that more widespread use would make the general criminal
justice system more coherent.
The Supreme Court has mandated that for federal and state death penalty cases,
juries must have a role in determining the sentence to make sure it passes
muster under the Eighth Amendment’s prohibition on cruel and unusual
punishment.53 Two overlapping arguments led the court in this direction. First,
society’s understanding of what violates the cruel and unusual prohibition
changes over time, and juries are a more sensitive and sure barometer of this
standard than judges. Second, since jurors are better able to represent the
conscience of the community they are therefore more capable of making what is
essentially a moral and not a specifically legal decision about who deserves to be
executed.54 Relying upon these arguments, Justice Breyer has held, quoting from
two previous cases, that jurors “‘reflect more accurately the composition and
experiences of the community as a whole.’ Hence they are more likely to
‘express the conscience of the community on the ultimate question of life or
death.’”55
Yet if the jury best represents the conscience of the community and this must be
taken into account on ultimate questions, then it is unclear why the jury should
not be more broadly employed. As Federal District Court Judge Morris Hoffman
writes, “Why are jurors not only competent, but in fact virtually indispensable,
when it comes to balancing mitigating factors against aggravating factors to
decide whether a murderer should be executed, but not competent to do that
very same thing to decide whether a rapist should be sentenced to so many
years that he will die in prison?”56 “There is nothing I do as a trial court judge
that makes me more uncomfortable than when I impose criminal sentences,”
Judge Hoffman continues; this is “an institutional discomfort—a nagging feeling
that this is a moral act and not a legal one, and that one person should no more
have the power to select an arbitrary sentence within a wide legislatively
prescribed range than to declare certain acts to be crimes in the first
instance.”57
Related arguments stem from the fact that civil juries possess a robust kind of
sentencing authority in federal and state courts. Flowing from the same
historical sources of distrust for centralized power and concern about elite
domination in business as well as politics that institutionalized the criminal jury,
the American civil jury has wide-ranging authority to determine compensatory
and punitive damage awards.58 Typically, civil cases involve injury or loss claims
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resulting from car accidents, faulty products or properties, and medical

mistakes. Civil juries must decide if a defendant (p.139) is at fault and whether
compensation is due to the plaintiff; less frequently they must decide if punitive
damages are also warranted.59 While judges have the authority to review civil
jury verdicts, call for a new trial, and reduce damage awards, the norms for civil
juries allow greater sentencing authority than for criminal juries.60
Even within the contemporary noncapital jury trial, juries play a crucial role in
accepting or rejecting the legal building blocks that will ultimately serve to
construct the sentence, even though they do not formally determine the
sentence. Juries must frequently answer questions about the offender’s moral
culpability in addition to ascertaining whether or not he committed the actions
the prosecutor is charging. It is part of their job to examine mitigating
circumstances, such as whether the defendant was provoked or suffering
depravations at the hands of the victim and whether the defendant was
motivated by good intentions, and to consider aggravating circumstances as
well, such as the use of extreme or degrading violence. When considering
culpability, James Levine has argued, jurors frequently reflect on what
punishment best fits the offender’s particular circumstances: “Sometimes the
only fair, just thing to do is to ‘split the difference’—to come up with some
middle ground between total exculpation and complete condemnation. Jurors pit
mitigating circumstances against aggravating circumstances, and at times their
verdicts represent a balance between these competing forces.”61 Splitting the
difference can mean a jury accepts some of the criminal charges brought by the
prosecutor but not others, even when the evidence confirms them, and is
apparent in cases where the jury favors a lesser charge over the more severe,
even when the evidence supports the latter. Levine thinks allowing the jury
formal sentencing authority would make what already happens during
deliberations more coherent: Juries might then “be more inclined to stick closer
to the facts and use control over punishment as a way of working justice into the
decision.”62 A jury preferring the lesser charge of manslaughter because of
mitigating circumstances, even though the factual basis for the more severe
murder charge was proven, could then convict on the murder charge and bring
the mitigating circumstances to bear during the sentencing phase.63 In addition
to providing greater transparency about the verdict, sentencing authority would
allow jurors to complete their task of doing justice in a particular case.64
Coherence arguments have their limits, however, and can also justify eliminating
jury authority entirely to make the current sentencing system more rational.
Levine’s points about a more particularized and public form of justice made
possible through jury sentencing lead to a more substantive (p.140) argument
for jury authority that reflects this book’s themes. This argument holds that a
jury sentencing system would produce sentences that are more attuned to the
individuality of the case and are more reflective of considered public opinion
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than those under the current system, in which legislatures and sentencing
commissions have developed sentencing formulas to be applied by judges.
The first step in this more substantive argument is to draw a distinction between
kinds of public opinion and citizen action, just as we did in chapter 2. In the last
generation of tough-minded politics, it is typically relatively uninformed public
opinion that impacts commissions and legislatures, who have a stake in
maintaining influence and keeping office. As Adriaan Lanni writes, “Sentencing
has increasingly become the province of inexperienced legislators and
administrators who respond to political pressure and public opinion polls
without developing a coherent system of criminal sanctions.”65 The often highly
politicized public opinion that influences sentencing statutes reflects general
beliefs about crime, criminals, and current patterns of sentencing, frequently
distorted by media emphasis on the worst crimes. As argued throughout this
book, lay citizens reveal a more balanced and fine-tuned approach to
punishment when they have an opportunity to reflect on particular cases with an
adequate amount of information about the offenses and the actors involved. For
example, while capital punishment enjoys significant popular support, capital
juries reach that verdict in only a small number of cases. Death-qualified capital
jurors may be tough-minded in principle, but they apply their values to the
particular human beings before them in court and this makes a difference.66 As
is true of so-called penal populism more generally, current sentencing statutes
are superficially democratic; they actually reflect, in Lanni’s words, “a serious
disjuncture between the extreme severity of many determinate sentencing
schemes and the public’s view of proper punishment.”67
The second step in the substantive argument holds that a very different kind of
public opinion is brought to bear on the individual cases appearing before the
trial jury. Jury sentencing advocates have stressed three core deliberative
features of juries that moderate the views held by the demos and are absent or
compromised in the other formal bodies such as the legislature, sentencing
agencies, and judiciary: inclusion, reflectiveness, and protection from common
sources of bias.68 Because of random selection procedures, juries are also more
representative than these other government bodies, which significantly
overrepresent white male Protestants from backgrounds of medium to high
socioeconomic status. Further (p.141) reinforcing inclusiveness are the
strictures on antidiscrimination during jury selection. Reflection on both
criminal justice principles and on the particularities of a specific case is
procedurally fostered by the unanimity rule, which presses the majority to
consider the views of the minority. The small-group nature of the jury allows
both opportunities for expressing opinions and face-to-face pressure to take
others’ views seriously. As there is no consensus in the United States on the
purposes and values of criminal sentencing—retribution, rehabilitation, or
deterrence—the jury’s procedures have the advantage of forming deliberative
agreements, albeit temporary, about deeply contested issues.69 Attention to the
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particularity of a case is fostered by court procedures that encourage jurors to

hold initial views of crime, criminals, and crime control open to influence by
legal narratives from the opposing sides in the trial, by the presence in the
courtroom of living, breathing human beings with the capacity for suffering, and
by the diverse life experiences and different interpretations of testimony,
evidence, and legal argument presented by fellow jurors. Finally, juries are free
of the distortions of the political marketplace. Because they hold office for a
short time, do not have to be elected, do not earn any monetary or status
rewards from their office, and do much of their deliberative work in a secluded
setting, juries are not influenced by factors outside their own capacities to
comprehend and determine the best resolution to the case at hand.70
For the reasons stated, jury sentencing can, in an individuating and reflective
fashion, apply public opinion to the problem of fixing an appropriate sentence to
a specific offense. It also makes sentencing more public, which is no superficial
value at a time of deep distrust of discretionary authority in all branches of
government and when that distrust has recoiled to instigate criminal laws
harsher than citizens with more knowledge of particular offenders and their
circumstances are willing to apply. Cultivating the public nature of trials reduces
the social distance between lay citizen and legal domain that has fueled such
dysfunctional sentencing policy. Reflecting on Justice Souter’s comment that the
jury’s role has diminished to “low-level gatekeeping” in the contemporary court,
Jenia Iontcheva takes note of the political consequences: “The criminal justice
system has become ever more opaque to the average citizen [and] citizens have
lost a sense of the day-to-day workings of the criminal justice system.”71 Jury
sentencing means there is nobody left for the public to blame other than itself.
Such a reform is no guarantee of civic responsibility and sobriety, of course, but
it permits these to develop rather than short-circuiting them.72 Such a reform
also eliminates the sleight of hand (p.142) of jury nullification, allowing the
representatives of the public to express their reservations about a law or about
its application in a particular kind of case straightforwardly through a lenient
sentence. It forces the jury’s reservations out into the open, for wide critical
reflection, and brings peace to the nullifying jury’s war with the law.
Critics of jury sentencing hold it to be less fair than judicial sentencing in

individual cases and to produce in the aggregate a less uniform pattern of
sentences for each category of offense.73 These critics point to the judge’s legal
training, experience with a wide range of cases both similar to and different
from the one on trial, knowledge of sentencing guidelines and statistics for
different offenses, and awareness of more evidence in a particular trial as
crucial advantages over the jury.74 Further, critics point to chronic biases to
which judges are less vulnerable because they are held publicly accountable via
elections, competency reviews, and the appellate process. These include
persistent racial biases that can lead white jurors to be more severe to black
defendants and more lenient for whites, and tendencies of jurors to be
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influenced by morally irrelevant factors such as the attractiveness of the

defendant.75 Critics support these charges with sentencing data and mock jury
research that provide some evidence of racial and other disparities between
judge and jury sentences.
While serious, the objections to jury sentencing based on ignorance can be

overcome through well-crafted jury sentencing schemes that require during the
penalty stage of deliberations a clear presentation of sentencing statistics,
guidelines, and any relevant information and evidence that was barred during
the earlier guilt phase of the trial. As for racial and other chronic biases, the
empirical evidence is inconclusive and points to similar biases throughout the
criminal justice system—marring the discretionary decisions of prosecutors,
judges, prison officials, and probation officers.76 Procedural curbs on racial
biases, such as the greater representation of racial and ethnic minorities on the
jury, are more fully advanced in America’s jury system than elsewhere in the
criminal justice system. Considered in the light of the mixed empirical evidence
and the countervailing advantages of the jury procedures, criticisms of jury
sentencing do not support the elimination of this authority, but rather its fuller
and more transparent incorporation into criminal adjudication. The institutional
goal, then, would be to help make jury authority more effective. As Daryll Brown
puts it, “The jury’s distinct institutional voice, integrated into a dynamic system
of institutional interaction, would continue to secure the democratic legitimacy
of adjudicative processes and contribute to the continuing national dialogue on
public values and policy.”77
(p.143) Limits on Plea Bargaining

Institutional reforms granting noncapital juries more formal authority in
sentencing increase the power held by laypeople within the court. Jury
sentencing does nothing to stem the decline of jury trials, however, so it does
little to affect the general systemic drift towards insider-dominated criminal
justice. Another kind of institutional reform is needed to increase the reach of
lay participation within American criminal justice: constraints on the ability of
prosecutors to offer reduced sentences in exchange for guilty pleas. The
controversial practice of plea bargaining has been part of mainstream
jurisprudence since the early twentieth century, but it has received increased
scrutiny in recent years as both jury and bench trials have shrunk to near
extinction. Critics argue that more trials and less bargaining would make
punishment more deliberate and spread civic responsibility for it. Equally
important, greater public ownership of criminal justice could refresh the long-
corroded connections between courts and the public sphere. Though they are
unattractive to some court professionals because they would complicate the
efficient administration of justice and limit their control over the trial, such
reforms would help reshape the court as a place of public reflection where the
voices of all parties have significance.
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As noted, plea bargaining was a major reason for the jury trial’s decline in the
late nineteenth and early twentieth century. Understood by some court
professionals to be an institutional inevitability for reasons of efficiency and cost,
especially as trials have increased in procedural complexity, plea bargaining has
in fact always had significant opposition. Even though the judiciary benefits from
workload reductions gained through the practice, the bench only gradually
overcame the position that plea bargaining violates criminal defendants’ right to
a fair trial.78 Not until the early 1970s did the Supreme Court finally endorse the
practice.79 Public opinion too has been skeptical about plea bargaining,
consistently seeing it as shortchanging crime victims by giving offenders less
than their just deserts.80 Leading legal academics join the dissent, stressing the
ways it is unjust, corrupt, and undemocratic.
Critics arguing that plea bargaining is unjust have three main issues in mind:
punishing the innocent, disproportional punishment, and the distortion of
fundamental criminal justice goals. First is a concern for the innocent defendant
pressured to plead guilty to a reduced charge because the risk of losing at trial—
a risk structured by the prosecutor and supported by the judge—is too great.
Some opponents of the practice liken the defendant’s (p.144) choice to that of
a victim of an armed robber; both are free to choose not to give in to the
demand, but both could potentially suffer grave harm as a result.81 There is little
doubt among critics that plea bargaining places pressures on defendants that
increase the chances the innocent will be punished.82 Second, plea bargaining
produces disproportional results, since offenders who have committed the same
offense will receive different penalties if one chooses trial and is found guilty
while the other chooses to plead guilty. This difference is commonly called a trial
tax and is integral to the threat presented by the prosecutor that encourages a
defendant to plead.83 Third, plea bargaining cannot deliver either the retributive
or deterrence goals held by major schools of legal thought to be the legitimate
purposes of criminal justice, since a defendant’s offense will not be connected
with the penalty on the books if the plea bargain is successful. Even though the
defendant is punished, the penalty cannot suitably fit the crime and cannot send
a clear message to future offenders because it was the product of an
idiosyncratic bargaining situation. Indeed, the message sent is that criminal
justice outcomes are influenced by morally irrelevant factors such as the
bargaining skills and insider connections of a defendant’s legal representation.84
Another concern for critics is how plea bargaining corrupts criminal adjudication
by transforming the distinct roles of court professionals, eroding constitutional
protections and common law principles, and mystifying criminal justice
outcomes. Judges are sidelined and play a largely symbolic role. Prosecutors,
who take center stage, have incentives to construct the steepest possible set of
charges for a defendant to improve their bargaining position, while defense
attorneys have incentives of their own to back down from a robust advocate’s
role and settle quickly. Prosecutorial incentives such as efficiency, cost,
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reputation, relationships with fellow court professionals, and a record with few
trial losses are all reasons for accepting agreements that can easily clash with
the public good.85 Defense attorneys are similarly rewarded by plea bargaining
and have equally strong reasons to accept an agreement, even though a trial
might better serve their client.86 In short, writes Stephen Schulhofer, “affected
parties are represented by agents who have inadequate incentives for proper
performance” and “prospects for effective monitoring are limited or
nonexistent.”87 Plea bargaining has also eroded core protections and principles,
having “undercut the goals of legal doctrines as diverse as the Fourth
Amendment exclusionary rule, the insanity defense, the right of confrontation,
the defendant’s right to attend criminal proceedings,” among others.88 Calling
attention to the “dishonesty” of the process, John H. (p.145) Langbein notes
how it has “made our criminal statistics into hash,” rendering conviction rates
relatively useless as information about actual crime rates, since defendants
guilty of one offense are frequently charged with another as a result of
negotiation.89
Finally, plea bargaining is often criticized as an undemocratic backroom

administrative process. It is undemocratic in the very basic sense that it was
never established in an open fashion and voted upon by state or federal
legislatures, but rather emerged with very little scrutiny by democratically
elected bodies.90 Further, as Langbein and others have argued, it “transfers the
power of condemnation to a low-visibility decisionmaker, the prosecutor.
Because negotiation replaces trial, plea bargaining substitutes an essentially
concealed procedure for the salutary openness of a public jury trial.”91 Such
centralization and concealment of penal authority short-circuits “an important
civic interest in having public inquiry and adjudication take place in cases of
serious crime” and “prevents the citizenry from learning about the
circumstances of the crime and punishment.” “Without trial,” Langbein writes,
“we do not feel adequately informed about whether our institutions have
responded fully and fairly to events.”92 Thus plea bargaining has made criminal
justice outcomes less understandable to lay citizens, arguably compounding the
generalized distrust of criminal justice professionals and institutions.
In response to these criticisms, plea bargaining’s defenders rarely celebrate it,

choosing instead to present it as no better but no worse than other mainstream
practices, with flaws no greater than those afflicting other aspects of modern
criminal justice. To critics concerned with injustice, defenders note that trials
themselves are no guarantee that innocent defendants are left unpunished or
that identical offenses will be treated in the same way in different courtrooms
with different judges, legal representation, and juries.93 Moreover, the
procedural complexity, uncertainty, and duration of trials also serve as obstacles
to achieving traditional retributive and deterrence goals of criminal justice.
Abolishing plea bargaining would fail to relieve an innocent defendant of
pressure, they insist, as he is still facing charges supported by available
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evidence, and a trial may result in a longer sentence than a bargain would
have.94 Indeed, the pressures faced by defendants under plea bargaining,
supporters claim, are no more unjust than the pressures faced by any person
who has to make a tough choice during a business transaction or during a
commercial contract negotiation.95 Defenders also point out that plea bargaining
is no more corrupting of professional roles than standard practices throughout
the administrative state, as many official settings employ complicated and less
than fully (p.146) transparent decision-making processes. Finally, other means
than conducting jury trials exist to inform the public about criminal justice
practice—such as attending court sessions as visitors or participating in the
public hearings of traditional legislative bodies.
None of the arguments for plea bargaining claims it is better than trial, only not
significantly more inferior, normatively speaking, than trial. The most powerful
argument for plea bargaining thus is the one from expediency: It is simply too
costly to adjudicate all serious criminal offenses in the United States. Consider
this recent snapshot from the front lines in Youngstown, Ohio:
The volume of criminal cases that make their way to Mahoning County
Common Pleas Court is daunting, according to county Prosecutor Paul J.
Gains. Gains noted that there were 1,415 defendants in criminal cases in
common pleas court in 2009. He said the criminal justice system “would
grind to a halt if every defendant went to trial.” That is why plea
bargaining, though not popular in some cases, must be used. With the
caseload evenly divided, each of the five general division common pleas
judges would have been assigned 283 cases that year, he noted. With 52
weeks in a year, each judge would have had to conduct an impossible 5.5
criminal trials per week, he said, noting that his calculations didn’t include
any vacations or other time off.96
George Fisher affirms that nationally “the entire criminal justice system depends
for its survival on plea bargaining” and that abolition of even a quarter of the
caseload currently plea bargained would mean “five times as many trials, with a
comparable increase in public expense.”97
The economic argument shows, however, that what plea bargaining has done,
albeit while increasing efficiency and lowering the cost of criminal justice, is to
make crime and crime control someone else’s business. It is economical given
the world as it is, but it may be preventing greater savings—in human resources
as well as public funds—from being realized by fundamental alterations in the
way we punish.98 The efficiency of plea bargaining conceals its true cost, which
is to let the public forget its responsibility for punishment. Abolition of plea
bargaining would force an immediate sobering up about the multiplicity of
actions currently criminalized, the severity of many sentences, and the massive
number and specific social categories—racial and economic in particular—of
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those people caught in the criminal justice net every year. These are the social
costs hidden by plea bargaining. More trials will cost more in the short term, but
the resulting increase in public responsibility for crime control and (p.147)
criminal justice would encourage active consideration of other ways of cost
cutting, such as civic learning about how to identify and prevent criminogenic
circumstances, the possible benefits of decriminalization, and the potential for
community organizing work that rehabilitates outside formal state structures.
Plea bargaining manages crime and crime control as a bureaucratic matter,
sidestepping a more democratic understanding of our real world and the
realization of the public work—rather than police, prosecutorial, and corrections
work—that needs to be done.
Critics and defenders alike have offered specific institutional reforms to relieve
prosecutors of the excessive amount of discretionary power currently allowed.
Some advocate abolishing plea bargaining in felony cases, while others press for
minor measures such as greater judicial overview of the process and caps on the
charge or sentence reductions possible for given offenses.99 However reform is
approached, what is significant is to move criminal justice back into public view
and reintegrate lay participation into the process.
Rediscovering the Jury

The fact that jurors are not insiders, not institutional players, brings advantages
in adjudication, but it is massively disadvantageous for the game of institutional
politics. It means the parameters of the jury’s authority are monitored by
officeholders of the most temporary kind and are defended on the inside by
those whose own parameters of authority may benefit from a less, not more
robust jury. In some respects, then, it is unsurprising jury advocacy among
academics and court professionals is overly modest, while grassroots support
such as FIJA’s work appears shortsighted and institutionally counterproductive.
From another perspective, however, it is strange that this legacy of public

ownership has been put aside in the hope that the criminal justice system will
work in a self-monitoring fashion, that decision makers will check each other.
This is a hope that thoughtful eighteenth-century Americans would never have
permitted themselves to cultivate and it shows many signs of strain today. The
jury as an institutional locus for public awareness and responsibility for criminal
justice needs to be rediscovered, as active jury proponents, jury activists, jury
sentencing advocates, and plea bargaining critics point out in their own ways. In
doing so, such critics may find themselves on surprising common ground with
more traditionalist defenders of American constitutional arrangements. (p.148)
Notes:
(1) Anthony Giddens, The Consequences of Modernity (Stanford: Stanford
University Press, 1990), 90–91.
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(2) Graham C. Lilly, “The Decline of the Jury,” University of Colorado Law Review
72 (2001): 53.
(3) The influential Arizona Supreme Court committee, chaired by Judge B.

Michael Dann, was prompted by concerns raised by “leading legal and social
science institutions and authorities” regarding “unacceptably low levels of juror
comprehension of the evidence and of the court’s instructions.” Arizona
Supreme Court Committee on More Effective Use of Juries, “Jurors: The Power
of 12” (1994), 2, http://azcourts.gov/PublicationsReports/Reports.aspx.
(4) Robert J. Grey Jr., “President’s Message: A Week to Honor Jurors,” ABA
Journal (May 2005): 8.
(5) See, for example, Hannah Leiterman’s article designed for K-12 educators,
“The Citizen’s Jury,” American Bar Association Division of Public Education
(2005).
(6) See “Jurors: The Power of 12,” noting that “increasing criticism is being
leveled at jury decisions in many high profile cases,” 1.
(7) See, e.g., Gail Appleson, “King Verdict Shakes Faith in Jury System,” Reuters
(May 3, 1992).
(8) “When asked, most trial jurors admit that upon receiving the jury summons
their attitude was strongly negative. As a result of this kind of reaction, many
people fail to respond or report as directed. Of those who do appear at the
courthouse, many bring their negative attitudes with them and share them with
other jurors.” “Jurors: The Power of 12,” 33. The seriousness of the problem is
shown by the fact that the committee placed as its first recommended reform to
“undertake programs of public education about juries and jury trials.” The
Arizona Supreme Court committee estimated that between 10 to 25 percent of
those summoned to jury service in Arizona fail to appear. “Jurors: The Power of
12, part 2,” 1998, 1, http://azcourts.gov/PublicationsReports/Reports.aspx.
(9) D. Graham Burnett, A Trial by Jury (New York: Vintage, 2001), 36–37.
(10) American Bar Association, Principles for Juries and Jury Trials (New York:
Thomson West, 2005): 91–92. These recommendations were also endorsed in the
earlier Arizona Supreme Court committee report.
(11) Lis Wiehl, “After 200 Years, the Silent Juror Learns to Talk,” New York
Times, July 7, 1989. Advocates of jury questions rightly require that these be
supervised by judges, who ensure they do not request inadmissible evidence.
The Arizona Supreme Court committee, for example, endorsed “having questions
put in writing and left unsigned; discussing the question with the attorneys and
allowing them to object to the question out of the jury’s presence; the asking of
the question of the witness by the judge; and telling the jurors that the law may
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prevent some of their questions from being asked.” “Jurors: The Power of 12,”
90.
(12) B. Michael Dann, “‘Learning Lessons’ and ‘Speaking Rights’: Creating

Educated and Democratic Juries,” Indiana Law Journal 68 (1993): 1230.
(13) Dann, “Learning Lessons,” 1231.
(15) Jeffrey S. Berkowitz, “Breaking the Silence: Should Jurors Be Allowed to

Question Witnesses During Trial?” Vanderbilt Law Review 44 (1991): 120.
(16) As Amar and others have pointed out, the U. S. Constitution conceives trial
by jury as a right of individuals accused of a crime but also as a fundamental
political power held the people. Akhil Reed Amar, “Reinventing Juries: Ten
Suggested Reforms,” U.C. Davis Law Review 28 (1995):1183. As noted in
chapters 3 and 4 above, the Anti-Federalists who pushed for the additional
guarantees of jury trials incorporated in the Bill of Rights understood the jury to
be the “democratic branch” of the judiciary, akin to the relationship between the
House and Senate in the legislative branch.
(18) Such an individual-level psychological emphasis also marks the primary

criticism of these reforms: that jurors encouraged to ask questions may begin to
form an opinion and a legal theory about the case before all the evidence has
been presented and before the judge has informed the jury about the applicable
law. This forms the main line of opposition in states such as Minnesota,
Mississippi, Nebraska, and Texas, whose high courts have rejected jury
questions as unconstitutional, as well as in the minority of states and the totality
of federal circuit courts that have ruled it constitutional but discourage the
practice. See American Judicature Society, Jury Questions to Witnesses (2004),
http://www.ajs.org/jc/juries/jc_improvements_questions_laws.asp.
(19) Shari Seidman Diamond, Mary R. Rose, and Beth Murphy, “Jurors’
Unanswered Questions,” American Judges Association Court Review 41 (2004):
21.
(20) Phoebe C. Ellsworth, “Jury Reform at the End of the Century: Real
Agreement, Real Changes,” University of Michigan Journal of Law Reform 32
(1999): 224; Valerie P. Hans, “The Jury’s Role in Administering Justice in the
United States: U.S. Jury Reform: The Active Jury and the Adversarial Ideal,”
Saint Louis University Public Law Review 21 (2002): 90.
(21) Neil Vidmar and Valerie P. Hans, American Juries: The Verdict (New York:
Prometheus Books, 2007), 344–346.
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(22) Nancy S. Marder, The Jury Process (New York: Thomson West, 2005), 261–
265.
(23) Vidmar and Hans, American Juries, 346; Marder, Jury Process, 266.
(24) Note that Judge Dann’s committee on jury reform recommended, by a

divided vote of 8 to 4, that informing criminal juries of the potential range of
punishment was a reform that had value and should be studied further. Both the
recommendation and the strongly worded dissent can be found in “Juries: Power
of 12, part 2,” 12–15. After the reports were written, Dann came to the
realization that juries should be informed by judges of their power to nullify. See
B. Michael Dann, “‘Must Find the Defendant Guilty’ Jury Instructions Violate the
Sixth Amendment” Judicature 91 (2007): 12–19.
(25) Devlin, Trial by Jury, 4.
(26) Devlin, Trial by Jury, 5.
(27) Harry Kalven Jr. and Hans Zeisel, The American Jury (Boston: Little, Brown,
1966).
(28) Marianne Constable, “What Books about Juries Reveal about Social Science
and Law,” Law & Social Inquiry (1991): 359.
(29) Constable, “Books about Juries,” 360.
(30) Devlin writes of a “malady that sooner or later affects most men of a
profession is that they tend to construct a mystique that cuts them off from the
common man. Judges, as much as any other professional, need constantly to
remind themselves of that.” Trial by Jury, 159. Legal academics may share court
professionals’ views of the jury because they accept and identify with this
judicial mystique, which conveys a sense of power, importance, and capability
that is not available to common laypeople. Calling distrust of democracy legal
academics’ “dirty secret,” Waldron attributes it to their aspiration to join the
judges’ ranks. See Jeremy Waldron, Law and Disagreement (New York: Oxford
University Press, 1999), 8.
(31) Holly Zachariah, “Court Changes Involve Jurors in Trial,” Columbus

Dispatch, October 12, 2003.
(32) Supreme Court of Ohio, “Jury Task Force Proposes Major Reforms:
Proposals Designed to Improve Experience, Advance Justice,” 2004, http://
www.sconet.state.oh.us/PIO/news/2004/jurytf_reforms_022404.asp.
(33) Fully Informed Jury Association, “History of FIJA,” http://fija.org/about/

history.
Page 24 of 31
Reviving the Jury
(34) Katherine Bishop, “Diverse Group Wants Juries to Follow Natural Law,” New
York Times, September 27, 1991.
(35) Fully Informed Jury Association, “FIJA’s Purpose,” http://fija.org/about/figas-

purpose.
(36) Ibid.
(37) Some states, like Georgia, Indiana, and Maryland, already possess
constitutional guarantees that juries can judge both law and facts, but they do
not normally surface as part of courtroom instructions.
(38) FIJA, “True or False: Factual Information about Jury Service,” http://fija.org/
document-library/brochures.
(39) FIJA, “A Primer for Prospective Jurors,” http://fija.org/document-library/

brochures.
(40) FIJA,”About FIJA, a Letter from the Executive Director,” http://fija.org/

about.
(41) Ibid.
(42) FIJA,”Who Owns Your Body,” http://fija.org/document-library/brochures.
(43) FIJA, “True or False.”
(44) Marder, for example, supports jury nullification yet critiques FIJA because
“they explicitly urge jurors to use their jury experience to advance an agenda,
thus compromising the impartiality of the jurors and the integrity of the jury
system.” Advocating the normative ideal of the open-minded juror I endorsed in
chapter 5, Marder states that FIJA’s fully informed jurors “need not pay attention
to the case before them because they already know how they will vote” an ideal
“in sharp contrast to the … juror who enters the courtroom and the jury room
with an open mind, and who, only through the course of considered and
thorough deliberations, reaches a just verdict, which may, on rare occasion,
require nullification.” Nancy Marder, “The Myth of the Nullifying Jury,”
Northwestern University Law Review 93 (1999): 942–943.
(45) It is not uncommon, notes Marder, for “lawyers to provide hints to the jury
that the case before it is a three-strikes case,” such as carrying folders marked
“3-strikes,” using baseball analogies, and mentioning to the jury that “In 25
years from now will you have an abiding conviction that justice was served?”
Nancy Marder, “Jury Reform: The Impossible Dream?” Tennessee Journal of Law
& Policy 5 (2009): 156.
Page 25 of 31
Reviving the Jury
(46) Marder, “Myth of the Nullifying Jury,” 922–923. See also Matt Matravers’s
discussion of the complexities of nullification in “‘More Than Just Illogical’: Truth
and Jury Nullification,” in The Trial on Trial Volume One: Truth and Due Process,
eds. Antony Duff et al. (Portland OR: Hart, 2004), 71–83.
(47) Paul Butler’s admonition that black jurors “nullify” in cases of victimless
offenses suffers from the same problem. If at the end of a well-tried case such a
juror has kept in full focus the evidence, has been open to opposing legal
arguments, and regarded the law, then nullification may be seen as acceptable.
If not, even in nonviolent offenses, we have an unjustifiable use of discretionary
power. Even nonviolent offenses like selling drugs can erode communities and
therefore may require sanctions. It should be noted that Butler concedes much
of the ideal juror role in his own model but brackets it because of the current
penal crisis. So one might see his normative model as an emergency or ad hoc
measure, not a recommendation for normal institutional practice. See Butler,
“Racially Based Jury Nullification: Black Power in the Criminal Justice System,”
The Yale Law Journal 105 (1995): 677-725.
(48) Constable, “Books about Juries,” 371.
(49) Marder, Jury Process, 11.
(50) On the negative framing of lay discretionary power and the positive framing
of official discretionary power, see Nancy Marder, “The Interplay of Race and
False Claims of Jury Nullification,” University of Michigan Journal of Law Reform
32 (1999): 371–372.
(51) See Jenia Iontcheva, “Jury Sentencing as Democratic Practice,” Virginia Law
Review 89 (2003): 319.
(52) Even though just a handful of states permit formal jury sentencing, a not
inconsequential number of cases are involved. King and Noble estimate about
4000 noncapital cases per year are sentenced by juries in these six states. See
Nancy J. King and Rosevelt L. Noble, “Felony Jury Sentencing in Practice: A
Three-State Study,” Vanderbilt Law Review 57 (2004): 887.
(53) Thirty-seven states currently have the death penalty.
(54) Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy
(Cambridge, MA: Harvard University Press, 2000), 211–212.
(55) Ring v. Arizona, 122 S. Ct. 2428, 2447–2448 (2002) concurring opinion.
(56) Morris B. Hoffman, “The Case for Jury Sentencing,” Duke Law Journal 52
(2003): 951–1010.
(57) Hoffman, “Case for Jury Sentencing,” 994–995.
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Reviving the Jury
(58) Paul D. Carrington, “The Civil Jury and Democracy,” Duke Journal of
Comparative and International Law 13 (2003): 79–94.
(59) Stephan Landsman, “The Civil Jury in America,” Law and Contemporary
Problems 62 (1999): 290.
(60) Reasons for civil jury sentencing authority expressed by judges include the
somewhat problematic notion that proper compensation is a matter of factual
determination as well as the more political idea that it provides judges and other
court professionals a way to share responsibility for deciding complex cases in
which no party is blameless and no juridical outcome perfect. See Colleen P.
Murphy, “Integrating the Constitutional Authority of Civil and Criminal Juries,”
George Washington Law Review 61 (1993): 766; Stephan Landsman, “The Civil
Jury in America: Scenes from an Unappreciated History,” Hastings Law Journal
44 (1993): 617–618.
(61) James P. Levine, Juries and Politics (Belmont, CA: Wadsworth, 1992), 83.
(62) Levine, Juries and Politics, 189.
(63) Ibid.
(64) As Burnett noticed during his own service, some jurors find it very awkward
to reach a verdict without knowing what sentence will follow as a result. Trial by
Jury, 137–138.
(65) Adriaan Lanni, “Jury Sentencing in Noncapital Cases: An Idea Whose Time
Has Come (Again)?” Yale Law Journal 108 (1999): 1802.
(66) Levine notes that “concerns about justice soften them up when deciding the
fate of specific individuals,” Juries and Politics, 95. Justice Stevens agrees:
“Voting for a political candidate who vows to be ‘tough on crime’ differs vastly
from voting at the conclusion of an actual trial to condemn a specific individual
to death.” Harris v. Alabama, 513 U.S. 504, 518 (1995) (Stevens, J., dissenting).
(67) Lanni, “Jury Sentencing in Noncapital Cases,” 1802.
(68) “Because of their deliberative capacity and democratic makeup,” writes

Iontcheva, “juries are better situated than other political institutions to perform
the sensitive tasks of deciding between contested sentencing goals and applying
the law with due regard for the individual circumstances of each offender.” “Jury
Sentencing as Democratic Practice,” 350.
(69) Iontcheva, noting the “perennially debated questions” about the different
“underlying purposes of punishment,” argues that juries are better situated than
other official bodies to reflect on these different principles and attempt some
kind of reconciliation between them in a given case: “Some jurors will emphasize
Page 27 of 31
Reviving the Jury
the defendant’s chances of rehabilitation, while others will be more concerned

about the message that the sentence sends to the community at large. These
jurors learn from each other in the process of deliberation and perhaps reach
solutions that would not have occurred to them individually.” “Jury Sentencing as
Democratic Practice,” 343, 341.
(70) Brown notes that juries lack “key structural disadvantages” of legislatures:
“vulnerability to constituent and interest group pressure or the opportunity to
seek ‘rents’ or personal gain from their decisions.” Darryl K. Brown, “Structure
and Relationship in the Jurisprudence of Juries: Comparing the Capital
Sentencing and Punitive Damages Doctrines,” Hastings Law Journal 47 (1996):
1322.
(71) Iontcheva, “Jury Sentencing as Democratic Practice,” 339.
(72) As Iontcheva argues, “Encouraging popular participation and deliberation

in sentencing, therefore, would be critical to increasing public awareness about
punishment objectives and options.” “Jury Sentencing as Democratic Practice,”
345.
(73) Ronald Wright holds that “available evidence shows that sentencing juries
impose a wider range of sentences than judges in state courts, and those
sentences are on average higher than what judges would impose in similar
cases.” “Rules for Sentencing Revolutions,” Yale Law Journal 108 (1999): 1376.
(74) See Lanni, “Jury Sentencing,” 1788–1790, and Iontcheva, “Jury Sentencing
as Democratic Practice,” 356–364, for literature reviews and summaries of
traditional legal criticisms of sentencing juries.
(75) Capital juries have shown racial disparities in sentencing, and are especially
harsh on black defendants who have killed white victims. There is some
conflicting evidence about racial bias in noncapital cases. See Nancy J. King,
“How Different Is Death? Jury Sentencing in Capital and Non-Capital Cases
Compared,” Ohio State Journal of Criminal Law 2 (2004): 195–214.
(76) Brown, “Structure and Relationship in the Jurisprudence of Juries,” 1323.
(77) Ibid.
(78) In tracing the history of plea bargaining, Alschuler has noted the theory-
practice divide in the judicial community. In theory, plea bargaining was
distasteful, though in practice it thrived. “Although plea bargaining had become
a central feature of the administration of justice by the 1920s, it had few
apologists and many critics.” Albert W. Alschuler, “Plea Bargaining and Its
History,” Law & Society Review 13 (1979): 232. He notes that the legal
community of judges, professional bodies, and legal academics failed to
adequately scrutinize plea bargaining as it began to take root, considering
Page 28 of 31
Reviving the Jury
criminal justice a corrupt and distasteful professional domain. By the time plea
bargaining was discovered as a problem by the legal community in the 1920s, it
had already become a cornerstone of criminal justice administration.
(79) The landmark cases here are Brady v. United States 397 U.S. 742 (1970),
which held that plea bargaining was “inherent in criminal law and its
administration,” and Santobello v. New York 404 U.S. 257 (1971), ruling that
“disposition of charges after plea discussions is not only an essential part of the
[criminal justice] process but a highly desirable part for many reasons.” See
Alschuler, “Plea Bargaining and Its History,” 239–240.
(80) One prominent study found that two-thirds of the general public believe
that plea bargaining is a problem. Americans View Crime and Justice: A National
Public Opinion Survey, eds. Timothy J. Flanagan and Dennis R. Longmire
(Thousand Oaks, CA: Sage, 1996).
(81) For the highwayman/prosecutor analogy, see Kenneth Kipnis, “Criminal

Justice and the Negotiated Plea,” Ethics 86 (1976): 93–106. Alan Wertheimer has
rightly challenged the analogy on the grounds that the prosecutor, unlike the
highwayman, is not acting immorally. See Wertheimer, “The Prosecutor and the
Gunman,” Ethics 89 (1979): 269–279. However, this challenge does not touch the
point that if the larger system in which such pressure is tolerated is unjust, then
the prosecutor’s role is morally problematic. See Ruth W. Grant’s discussion of
plea bargaining as a systemic abuse of state power in Strings Attached:
Untangling the Ethics of Incentives (Princeton: Princeton University Press,
2011), 76–85.
(82) Albert W. Alschuler, “Implementing the Criminal Defendant’s Right to Trial:

Alternatives to the Plea Bargaining System,” University of Chicago Law Review
50 (1983): 934.
(83) As one judge crudely explained the trial tax: “He takes some of my time—I
take some of his. That’s the way it works.” Quoted in Albert W. Alschuler, “The
Trial Judge’s Role in Plea Bargaining, Part I,” Columbia Law Review 76 (1976):
1089.
(84) As Richard Lippke writes, “it is hard to avoid the conclusion that the
overwhelming message thereby conveyed by the criminal justice system is that
crime has a price that is subject to considerable negotiation. What charges will
be pursued against defendants and what sentences will be assigned to them are
all matters to be worked out. If one can get a knowledgeable, experienced, or
well-connected defense lawyer, one can probably get a better deal.”
“Retributivism and Plea Bargaining,” Criminal Justice Ethics (Summer/Fall
2006): 9.
Page 29 of 31
Reviving the Jury
(85) Stephen J. Schulhofer, “Plea Bargaining as Disaster,” Yale Law Journal 101
(1992): 1987.
(86) Schulhofer, “Plea Bargaining as Disaster,” 1988.
(87) Schulhofer, “Plea Bargaining as Disaster,” 2009.
(88) Alschuler, “Alternatives to the Plea Bargaining System,” 935.
(89) John H. Langbein, “On the Myth of Written Constitutions: The

Disappearance of Criminal Jury Trial,” Harvard Journal of Law & Public Policy 15
(1992): 124–125.
(90) As Kenneth Kipnis puts it, “No deliberative body ever decided that we would
have a system in which the disposition of criminal cases is typically the result of
negotiations between the prosecutor and the defendant’s attorney … [It] has
evolved in the unregulated interstices of our criminal justice system.” “Criminal
Justice and the Negotiated Plea,” 95.
(91) Langbein, “Myth of Written Constitutions,” 124.
(92) Ibid.
(93) See Thomas W. Church Jr., “In Defense of Bargain Justice,” Law and Society
Review 13 (1979): 509–525.
(94) “Forcing these [innocent] persons to trial against their wishes does them
great injury—it is bad enough to be unjustly convicted, and worse yet to be
unjustly convicted and receive a sentence higher than one could have obtained.”
Frank H. Easterbrook, “Plea Bargaining as Compromise,” Yale Law Journal 101
(1992): 1969.
(95) As Scott and Stuntz write, “plea bargains do not amount to duress; they are
not, in general, unconscionable. Given the range of areas where our legal system
tolerates (indeed, subsidizes) consensual allocation, it is hard to argue that
contract is impermissible here.” Robert E. Scott and William J. Stuntz, “Plea
Bargaining as Contract,” Yale Law Journal 101 (1992): 1967.
(96) Peter H. Milliken, “Gains: Justice System ‘Would Grind to a Halt’ Without
Plea Bargains,” Youngstown Vindicator, November 14, 2010. Not every county is
so stretched, of course. See David Lynch’s comparative study of two counties,
one of which managed to maintain a plea bargaining–resistant institutional
culture friendly to jury trials without exhausting its resources. “The Impropriety
of Plea Agreements: A Tale of Two Counties,” Law & Social Inquiry 19 (1994):
115–133.
Page 30 of 31
Reviving the Jury
(97) George Fisher, “A Practice as Old as Justice Itself,” New York Times,
September 28, 2003.
(98) It is worth noting that states and municipalities have abolished and tightly
restricted plea bargaining without breaking the public bank. Alaska abolished
bargaining from 1975 to 1993, for example, and Philadelphia, among other
cities, established strict restrictions in the 1970s and 1980s. For assessments,
see Michael L. Rubinstein and Teresa J. White, “Alaska’s Ban on Plea-
Bargaining,” Law & Society Review 13 (1979): 367–383, and Stephen J.
Schulhofer, “Is Plea Bargaining Inevitable?” Harvard Law Review 97 (1984):
1037–1107. Further, many civil law countries maintain balance without plea
bargaining. All things considered, however, we must be willing to accept that a
reform that results in more jury trials will cost more than the present system in
the short term. Just as recent prison overcrowding has pressed governors to
rethink the lengths of some offenders’ sentences, so trial costs can be construed
as catalysts for widespread critical reflection inside and outside the criminal
justice system.
(99) Alschuler, Schulhofer, and Langbein offer abolitionist arguments. Alschuler

favors a system of three-day jury trials. See, e.g., “Alternatives to the Plea
Bargaining System.” Langbein would replace plea bargaining with a streamlined
trial process involving panels of judges and lay magistrates. See “Myth of
Written Constitutions.” Schulhofer recommends encouraging defendants to
choose bench trials. See “Is Plea Bargaining Inevitable?” For more minor
reforms, including caps, see Oren Gazal, “Partial Ban on Plea Bargains,” Cardozo
Law Review 27 (2006): 2295–2351, and Richard L. Lippke, “Retributivism and
Plea Bargaining,” 3–16.
Page 31 of 31

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Reviving the Jury

Punishment, Participatory Democracy, and the

Print publication date: 2012

Reviving the Jury

Abstract and Keywords

(p.126) The traditional jury trial is a historically important but currently

A Tale of Two Movements

One of the reasons for deploying a well-known Hollywood celebrity in an

In response to these problems of bad publicity, lack of inclusion felt by

— Juries should have twelve members.

Communication deficits of contemporary courts also block the kind of lay

The upshot of recent academic advocacy is to portray the jury as a rough-hewn

The Citizen-Activist Movement of the Fully informed Jury Association (FIJA)

One practical goal of the organization is to promulgate bills in state legislatures

The organization has been more successful in a second practical goal of

Thus to be fully informed is to “be alert” to limits on jury power instigated by

A juror who comes to a trial intending to make it instrumental to a particular

Jurors should be responsible, load-bearing participants in a government

In our governmental scheme, there are three branches of government—the

of the common but mistaken dichotomy separating lay from professional

Part of the revolutionary-era American wariness of judicial discretion, jury

resulting from car accidents, faulty products or properties, and medical

particularity of a case is fostered by court procedures that encourage jurors to

Critics of jury sentencing hold it to be less fair than judicial sentencing in

influenced by morally irrelevant factors such as the attractiveness of the

While serious, the objections to jury sentencing based on ignorance can be

(p.143) Limits on Plea Bargaining

Finally, plea bargaining is often criticized as an undemocratic backroom

In response to these criticisms, plea bargaining’s defenders rarely celebrate it,

Rediscovering the Jury

From another perspective, however, it is strange that this legacy of public

(3) The influential Arizona Supreme Court committee, chaired by Judge B.

(12) B. Michael Dann, “‘Learning Lessons’ and ‘Speaking Rights’: Creating

(13) Dann, “Learning Lessons,” 1231.

(14) Dann, “Learning Lessons,” 1236.

(15) Jeffrey S. Berkowitz, “Breaking the Silence: Should Jurors Be Allowed to

(17) Dann, “Learning Lessons,” 1246.

(18) Such an individual-level psychological emphasis also marks the primary

(24) Note that Judge Dann’s committee on jury reform recommended, by a

(25) Devlin, Trial by Jury, 4.

(26) Devlin, Trial by Jury, 5.

(29) Constable, “Books about Juries,” 360.

(31) Holly Zachariah, “Court Changes Involve Jurors in Trial,” Columbus

(33) Fully Informed Jury Association, “History of FIJA,” http://fija.org/about/

(35) Fully Informed Jury Association, “FIJA’s Purpose,” http://fija.org/about/figas-

(39) FIJA, “A Primer for Prospective Jurors,” http://fija.org/document-library/

(40) FIJA,”About FIJA, a Letter from the Executive Director,” http://fija.org/

(42) FIJA,”Who Owns Your Body,” http://fija.org/document-library/brochures.

(43) FIJA, “True or False.”

(48) Constable, “Books about Juries,” 371.

(49) Marder, Jury Process, 11.

(53) Thirty-seven states currently have the death penalty.

(57) Hoffman, “Case for Jury Sentencing,” 994–995.

(62) Levine, Juries and Politics, 189.

(67) Lanni, “Jury Sentencing in Noncapital Cases,” 1802.

(68) “Because of their deliberative capacity and democratic makeup,” writes

the defendant’s chances of rehabilitation, while others will be more concerned

(71) Iontcheva, “Jury Sentencing as Democratic Practice,” 339.

(72) As Iontcheva argues, “Encouraging popular participation and deliberation

(76) Brown, “Structure and Relationship in the Jurisprudence of Juries,” 1323.

(81) For the highwayman/prosecutor analogy, see Kenneth Kipnis, “Criminal

(82) Albert W. Alschuler, “Implementing the Criminal Defendant’s Right to Trial:

(86) Schulhofer, “Plea Bargaining as Disaster,” 1988.