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Title: FIJA Author: Bob Black Date: 1997 Language: en Topics: Jury nulification, law Source: Retrieved on Sept. 13, 2022 from: http://www.spunk.org/texts/writers/black/sp001673.html Notes: Mike Hoy of Loompanics suggested the subject of this article, which was published in a Loompanics catalog supplement. A revised, greatly enlarged “academic” version has been accepted for publication by a law journal.
You are a juror. These are the facts:
motorcycle accident. He is in unspeakable agony which will continue for
the rest of his life. He begs his younger brother to kill him. The
brother does, as he later explains, out of love. The charge:
first-degree murder.[1] What is your verdict?
robs a liquor store. When the white proprietor draws a gun, the startled
youth shoots and kills him. The prosecutor asks for the death penalty.
The charge: first-degree (felony) murder. In this Southern state, the
jury determines guilt or innocence, but the judge sets the penalty.[2]
You know that it is more than twice as likely that a black who has
murdered a white will be sentenced to death than if his victim were
black.[3] What is your verdict?
foreign-born physician. One morning, after beating her, he threatened
her with a gun and ordered her out of the house. When he put the gun
down, she picked it up, shouting that “I am not going to leave you, I
mean it,” and shot him to death. The charge: second-degree murder. The
defense: self-defense.[4] What is your verdict?
During a traffic stop, police discover 1.5 pounds of cocaine. The
charge: possession (not possession with intent to sell) of more than 650
grams of cocaine. In this state — and in this state alone — the penalty
for this offense, even a first offense, is mandatory life imprisonment
without possibility of parole.[5] What is your verdict?
Selective Service System. A libertarian, he believes conscription is a
violation of natural law and his natural right of self-ownership of his
person. As a male between the ages of 18 and 26 he is, nonetheless,
required to register. The charge: nonregistration (a felony).[6] What is
your verdict?
If in every one of these cases your verdict is “guilty,” you were —
legally — absolutely right. And you are everything the law requires of a
good juror: a good soldier who is “only obeying orders,” as the
Nuremberg defendants used to say. In a jury trial, the orders are known
as “instructions.” The judge informs the jurors what he considers the
applicable law to be, and tells them to apply this judge-chosen (and
often judge-made) “law” to the “facts.” Not all the facts, though — just
the ones the judge allows the jury to “find” — facts filtered through
the world’s most complex rules of evidence by (guess who?) the judge.[7]
No juror, for example, ever gets to ask a witness a question she
considers “relevant” and “material.” Nor may she make use of any facts
about the case (even if they are relevant) learned out of court. Indeed,
had it been known she possessed any such information, she would not have
been allowed to be a juror at all. Even some information the jurors did
acquire in court they will be, again, “instructed” to ignore if it was
something the judge thinks the witness should not have said.
Thus, trial by jury as the judges envision it today is a black box
set-up. The judge-given law is the box. The judge-filtered facts are put
into the box. The verdict (and, in about 13 states, also the
sentence[8]) comes out of the box. But if this is all there is to the
jury’s role, trial by jury is obviously a costly, inefficient
anachronism; no wonder the rest of the world has largely done away with
it. The judge might as well “find” the facts himself, as indeed he does
in the “bench trials” which comprise about one-third of all criminal
trials.
Trial by jury would have gone the way of trial by ordeal or trial by
battle except for one thing: the United States Constitution. In no less
than three places the Constitution guarantees the right of trial by jury
in certain civil and criminal cases.[9] Clearly the Founding Fathers
envisioned a wider role for the jury than the judges now allow — and the
historical record reveals exactly what juries then did and what they
were supposed to do.
From the colonial era until well into the nineteenth century, American
juries were judges of “law” as well as judges of “fact.”[10] This meant
two things. First, juries didn’t have to take the judge’s word for it as
to what the law was. This made good sense at the time. Most judges were
not even lawyers; most lawyers for that matter were self-taught and less
than learned in the law; and the sources of the law weren’t readily
available (publication of judicial “opinions” was barely beginning).
Second, and more important, a jury had the right to “nullify” the law —
to return a verdict in favor of a defendant even if, on the facts and
given the applicable law, he was guilty of a crime or liable for damages
in a civil suit. If the jury thought the applicable law was bad law, or
ought not to be applied in the particular circumstances of the case, it
nullified the law in the case at hand by finding for the defendant.
Jurors could, and sometimes did, vote their consciences. Probably not
very often. Most jurors don’t, and never did, have any principled
objections to laws against murder, rape, robbery, reckless driving and
so forth. Most crimes are not, for instance, by any stretch of the
imagination “victimless.” And most jurors are not anarchists. But in a
legal system otherwise completely dominated by officials and
professionals, the jury — a temporary body of citizen-amateurs — still
has the power to thwart the state. Here and only here “the people,” not
their “representatives” or “public servants,” wield power directly.
For though the judges from the U.S. Supreme Court on down[11] have
nullified the jury’s “right” to judge the law, they affirm its power to
do so. This is no verbal quibble. If nullification were a right, jurors
would be “instructed” about it — but such instructions, requested by
defendants, are always refused. Indeed, prospective jurors (prospective
jurors take note!) who reveal their knowledge of the power are
apparently routinely disqualified.[12] Yet the power is real. To say
that jurors have the nullification power means that, if they use their
power, they will get away with it. They cannot be prosecuted or
punished. They cannot be sued or in any way held to answer for what they
do in the privacy of the jury room. Nor are they susceptible to the
informal controls, the interaction patterns which transform the
courtroom regulars into “work groups” of professionals with shared
understandings and with a common interest in moving the cases along.[13]
Once they return a verdict the jurors go home, probably never to return.
They of course don’t have to subordinate law to justice — but they’re
the only actors in the system who can do so with impunity.
In just a few years a grass-roots movement has sprung up whose aim is to
restore to the jury as a right the power it still has to nullify the
law: FIJA. FIJA stands for three things. It is an organization, the
Fully Informed Jury Association. It is a proposed (Federal and/or state)
constitutional amendment, the Fully Informed Jury Amendment; and it is
proposed legislation, the Fully Informed Jury Act, to implement the
amendment. FIJA (the amendment) exists in short and long (“Maxi-FIJA”)
versions — this is the short form: “Whenever government is one of the
parties in a trial by jury, the court shall inform the jurors that each
of them has an inherent right to vote on the verdict, in the direction
of mercy, according to his own conscience and sense of justice. Exercise
of this right may include jury consideration of the defendant’s motives
and circumstances, degree of harm done, and evaluation of the law
itself. Failure to so inform the jury is grounds for mistrial and
another trial by jury.”[14] So worded, FIJA would apply to some (not
many) civil actions, but this analysis will be confined to FIJA’s impact
on criminal cases.
FIJActivists are a disparate lot with, it may be, inconsistent or
unrealistic expectations as to what the Amendment would actually
accomplish. Libertarians apparently expect nullification in regulatory
and victimless-crime cases. So-called Constitutionalists evidently
expect that fully informed jurors would sympathize with their peculiar
ideas about taxation, legal tender and other issues. Some ethnic
activists are interested in FIJA as a check on the racial bias they
perceive in the legal system. And assorted legally aggrieved individuals
suppose that they would have fared better with a fully informed jury.
There is even some support for jury nullification instructions from
legal academics,[15] although I have found no reference to FIJA itself
in law texts and journals.[16]
My interest in FIJA is different. One court in refusing to give jury
nullification instructions claimed that jurors already know of their
nullification powers — a blatant falsehood — but that “to
institutionalize these powers in routine instructions to the jury would
alter the system in unpredictable ways.”[17] I think FIJA might well
“alter the system” — that’s the point! — but perhaps in predictable
ways.
Many FIJActivists sincerely desire the return of a Golden Age of upright
yeoman jurors and adversarial justice that probably never was.
Historically, some juries did nullify prosecutions based on religious
bigotry (William Penn) or political persecution (John Peter Zenger).
Juries nullified cases against fugitive slaves in the 1850s and
bootleggers in the 1920s. But other juries condemned John Brown and the
Haymarket anarchists and Sacco and Vanzetti and the Scottsboro Boys and
Leonard Peltier. It won’t do to romanticise the jury. Judges agree with
the great majority of jury verdicts.[18] After all, most cases, civil
and criminal, are pretty cut-and-dried. An extensive body of research
confirms that juries assign highest importance to just what the system
asks them to pass upon — the evidence.[19]
And yet — and yet — the jury is unlike any other institution of
government. The same U.S. Supreme Court which opposes jury nullification
instructions paradoxically agrees with the FIJActivist premise that “[a]
right to jury trial is granted to criminal defendants in order to
prevent oppression by the government.”[20] A black-box jury can do
nothing of the sort.
If there is any place to sabotage the system from within, this is
probably it. But if FIJA has any potential as a monkey-wrench it will
have to be estimated, not by some constitutional or moral ideal, not by
the “law on the books,” but by what Roscoe Pound called the “law in
action” — the real world of the present-day criminal justice system.
The first lesson to be learned about the real-world criminal justice
system is that trial — much less trial by jury — is the exception, not
the rule. Only about 10% of felony cases go to trial. An almost
imperceptible fraction of misdemeanor cases go to trial.[21] One-third
of felony trials are, by request of the defendants, bench trials
(nonjury trials). The vast majority of cases are either dismissed or
else resolved by guilty pleas (often, but not always, pleas to lesser
charges). There is a popular misconception that plea-bargaining is
necessitated by heavy caseloads. It isn’t. Plea-bargaining is about as
frequent in low-caseload courts as in high-caseload courts.[22]
Historical evidence suggests that plea-bargaining is nothing new — that
it goes back at least to the later nineteenth century,[23] when
caseloads were light. Interestingly, that is the very period in which
the judiciary accelerated its encroachment upon the jury’s legal
autonomy. Both trends — toward pretrial dispositions and toward
judge-controlled juries — had a common consequence: the resolution of
cases by legal professionals, not ordinary community people.[24]
What does this have to do with FIJA? Only everything. Without a trial
there is no trial by jury. Without a trial by jury, FIJA is irrelevant.
FIJA would matter if, and only if it made a difference, not only in what
juries do, but in how often cases go to trial. There is evidence that
juries usually agree with judges but that when they do not, the
direction of the difference is usually, as FIJA presupposes, in the
direction of leniency.[25] And there is evidence that juries given
nullification instructions do, in certain sorts of cases — murder
prosecutions for mercy-killing, for instance — override the letter of
the law,[26] as FIJActivists hope and expect they would. FIJA would,
then, probably make some difference in what juries do, on the relatively
infrequent occasions they get to do anything. But would it lead to more
jury trials? And if it did, what would that lead to?
Although criminal trials are exceptional, they set the standard for the
terms of the far more numerous pretrial dispositions. It is with
reference to what probably would happen at trial that prosecutors,
defense attorneys and sometimes judges arrive at a “going rate” for a
particular offense, sometimes by bargaining, but often also by arriving
at an implicit consensus. As Malcolm Feeley puts it, the expression
“plea bargaining” is often misleading insofar as it suggests haggling
over the price of a particular product in an Oriental bazaar. There is
some of that, but the better analogy is the supermarket where prices
are, to be sure, determined by prior trends in supply and demand but
which are normally not negotiated at the checkout stand.[27] A criminal
conviction is a sort of anti-commodity: you pay a fixed price, not to
obtain it, but not to obtain it.
If the criminal justice system is a commodities market, its currency is
time. No one ever has enough of it, not because everybody is swamped
with work, but because none of the courtroom regulars sees any reason to
waste his time and antagonize his counterparts by aggressively
litigating any case (and this is the typical case) whose outcome is a
foregone conclusion. All the professionals have an interest in moving
their caseloads — it is almost their only objective measure of
accomplishment, and accomplishments which cannot be measured do nothing
for anybody’s career. The partial exception is the prosecutor, for whom
the conviction rate is a still more crucial pseudo-objective measure of
performance. But the prosecutor is at least as zealous for negotiated
settlements as anybody else, since a plea-bargain guarantees a
conviction for something, whereas at trial there’s a risk, if not a very
high risk, of acquittal. Plea bargains also insulate the police, on whom
prosecutors rely to supply defendants to prosecute and evidence to
convict them, from any accountability for their illegal arrests,
searches and seizures, to say nothing of their gratuitous brutalities.
These rights violations strengthen the defense attorney’s bargaining
hand — that’s part of the game — but get traded away for better deals.
But whether a defendant gets a good deal or a bad one, too harsh or too
lenient, no jury has any say in the matter. Unless FIJA has some serious
impact on these entrenched arrangements, it might still be a worthy if
marginal reform but it is likely to disappoint FIJActivists and
antinomian monkey-wrenchers.
How might jury trials, if there were more of them, change the outcomes
of cases? In New York, the Rockefeller drug law of the early 1970s
mandated harsh penalties (and limited plea bargaining) for even minor
first-time offenses. Judges no longer inflicted harsher penalties on
those convicted after a trial than on those who copped pleas. Having
nothing to lose, more defendants went to trial — 15%, up from 6.5% —
overwhelming the system despite massive appropriations for new courts.
After two years the worst features of the law were repealed.[28] In a
California county at about the same time, one judge placed what the
public defender’s office considered unreasonable time limits on plea
bargaining. In retaliation, the office took all felony cases to trial.
Defendants won 12 out of 16 jury trials, although the defense attorneys
would have accepted some sort of guilty plea in 9 out of 10 of those
cases. The judge quietly abandoned his new rule.[29] A final example: a
careful study of a natural or “quasi-experiment” in the banning of
felony plea bargaining in El Paso, Texas, in 1975 resulting from a clash
between the prosecutor and the judges. The ban caused a considerable
increase in jury trials which was in turn largely responsible for a
substantial (but gradual) decrease in dispositions. The conviction rate
was generally unaffected, but there were indications that there was more
screening-out of weak cases after the prosecutor put an end to explicit
plea negotiations.[30]
Here is a scenario — a legal impact statement on FIJA — consistent with
common sense and extant empirical studies and omitting the qualifiers
and “maybes” to make the main points. FIJA would increase the number of
jury trials. Increasing the number of jury trials would increase the
number of dispositions favorable to defendants, whether acquittals (as
in “Vario County,” California) or dismissals (as in New York) or
prosecution decisions not to proceed in weak cases (as in El Paso,
Texas). And it would decrease the rate of dispositions — potentially a
serious problem for prosecutors, since the Constitution guarantees to
most criminal defendants the right to a speedy trial. It will not take
the legal professionals of the courtroom work groups very long to
calibrate a new equilibrium. They will sort out the many cases where
appeals to conscience would be ludicrous from the few which would get a
boost from FIJA. A prosecutor would rather drop the charges than lose a
case. A judge or defense attorney would rather he dismiss that case too
and save them all a lot of unnecessary trouble. He will dismiss the
case.
If that is all FIJA accomplished it wouldn’t matter much. FIJActivists
appear to be largely unaware that some of the extralegal circumstances
which are withheld from juries already routinely figure in the
discretionary choices of police, prosecutors and judges — for example,
the prior relationship between victim and criminal is an important
influence on felony outcomes.[31] But the influence of community values
is mediated by system professionals, not by the jury whose distinctive
contribution is supposedly its independent access to those very values,
undistorted by the system-maintenance interests of the courtroom
professionals.
But even a relatively small increase in trial rates would have a
tremendous impact on most courts, as it did in New York. Some cases
which would have been pled out in minutes will take days to try.
Prosecutors and judges will make mistakes, some of them grounds for a
mistrial or reversal on appeal. (Somebody has estimated that in the
typical trial there is a technical violation of the rules of evidence
every 30 seconds.) Trials will take longer because the range of relevant
evidence is widened by FIJA. In fact, an inevitable by-product of FIJA
would be the junking of most rules of evidence (which were mostly
invented to empower judges to keep juries from doing what FIJA
authorizes). For example, rape shield laws forbidding consideration of a
rape victim’s previous sexual history would presumably have to go.
FIJA would probably call a halt to the nefarious fad for mandatory
minimum sentences for possessory crimes. In Michigan, for instance, the
penalty for mere possession of over 650 grams of cocaine is the same as
the penalty for first-degree murder: life imprisonment without
possibility of parole. The U.S. Supreme Court has held — unbelievably —
that this is not “cruel and unusual punishment.“32 But even in this
period of renewed anti-drug hysteria, there will probably be several
members of almost any jury who will nullify this barbaric law.
Defendants charged with this offence have every incentive to exercise
their right to trial by jury at which, under FIJA, it is also their
right to argue that the law is immoral or unconstitutional, no matter
what the Supreme Court says. Prosecutors will soon learn to charge
lesser offences or none at all.
Is it even possible to have a criminal justice system in which trials —
and jury trials — are the norm? The answer is yes. Such systems operated
in pre-modern England and America. They were tolerably effective, so far
as historians can tell, for two reasons. The first is that defendants
had few rights. The second is that defendants had no lawyers. In
England, accused felons had no right to counsel (those accused of
misdemeanors had the right but rarely had lawyers). Until after the
Civil War, American criminal defendants lacked even the right to
testify, to say nothing of all the other rights bestowed on them in
recent decades.33 Trials were short and usually held in batches.
Verdicts were usually rendered immediately (often juries didn’t even
retire to deliberate), and punishment swiftly followed — most felons
were hanged within a day or two.
This regime, which may well have for some readers considerable appeal,
is now legally impossible. In all but the most trivial criminal cases
defendants now have the right to (retained) counsel, and indigent
defendants — most of them — have the right, at the trial level and in
some cases on appeal, to government-appointed counsel. And the right to
counsel is the right that effectuates all the others. Of the 23 specific
guarantees of the Bill of Rights, a majority — 12 — pertain to criminal
justice. The decisional law based on these guarantees is vast and
complex — which is more important, in terms of system impact, than
whether this or that doctrine is pro- or anti-defendant. And under FIJA,
any adverse ruling by the judge can always be reargued to the jury —
including those (such as motions to exclude illegally obtained evidence)
which are rendered in the jury’s absence. For the first time in history,
juries will actually have access to nearly all the information that the
judge and the lawyers do as well as the right to act on it as they see
fit. It is already true that trials take place, when they do, especially
in cases where the professionals cannot predict (or agree on) what the
verdict will be. Under FIJA there will be more such cases, and therefore
more trials. The more trials there are, the more acquittals there will
be, if there are any cases at all (there must be some) in which the jury
acquits where the defendant would formerly have taken a plea. And the
more often defendants win at trial, the more often other defendants will
go to trial. There is no telling how big the snowball will get or how
far it will roll.
The business-as-usual of the legal system already strains the resources
of a society which wasted its money-to-burn on wars, bailouts and
previous bouts of throwing money at cops, courts and corrections. They
just keep coming back for more, but there isn’t much more. Possibly
there are nations so rich, so homogeneous and so law-abiding — Sweden or
Singapore, perhaps — that they could afford our sort of system. But we
can’t. Especially post-FIJA.
The difference that many more jury trials before fully informed juries
would make is not that jurors understand the law better than judges and
lawyers (that is ridiculous). Or that they are better triers of fact
(there is probably not much difference). Or that they do, and others
don’t, consider motives and circumstances and temper law with equity.
The crucial difference is this: the courtroom regulars have vested
interests in the system itself. No case matters in any way nearly as
much as expediting all the cases. In the informal, the working system,
“the network of interactions is largely defined by the perceived
interests of the primary participants — judges and attorneys. The
dominant interests are (1) systemic and individual efficiency in the use
of time and (2) inter-party cooperation and accomodation.“34 Even less
than the defendants do the jurors have a stake in the ongoing system.
Because being a juror means never having to say you’re sorry.
My best guess is that FIJA would break down the legal system unless the
insiders adapted, as they surely would, by beating a strategic retreat
from entire sectors of social life. Sex, drugs, guns — the best things
in life are free! Or soon would be. And where society is morally
polarized it will be legally paralysed. There will be no point
prosecuting pro-life or pro-choice “criminals”: they will have to fight
out their differences directly. The legislating of morality or ideology
might not soon cease, but it might dwindle to a source of only symbolic
satisfaction. That will be how anarchy returns, if it ever does. The
state will not be overthrown — just ignored. Perhaps the criminal
justice system will persist, shorn of state power, as a game — like
chess, or Dungeons & Dragons. And the American Bar Association can merge
with the Society for Creative Anachronism.
[1] Paige Mitchell, Act of Love: The Killing of George Zygmanik (New
York: Alfred A. Knopf, 1976).
[2] As in Florida, Fla. Stat. Ann. § 921.141. The judge makes the death
penalty decision in seven states altogether. Welsh S. White, The Death
Penalty in the Nineties: An Examination of the Modern System of Capital
Punishment (Ann Arbor, Mich.: The University of Michigan Press, 1991),
92 n. 2.
[3] McCleskey v. Kemp, 481 U.S. 279 (1987) (upholding a Georgia death
sentence despite statistical proof of such a disparity); James R. Acker,
“Social Sciences and the Criminal Law: Capital Punishment by the Numbers
— An Analysis of McCleskey v. Kemp,” Criminal Law Bulletin 23
(Sept.-Oct. 1987): 454–482; see generally Gregory D. Russell, The Death
Penalty and Racial Bias: Overturning Supreme Court Assumptions
(Westport, Conn.: Greenwood Press, 1994).
[4] Ibn-Tamas v. United States, 455 A.2d 893 (D.C. 1983); Ibn-Tamas v.
United States, 407 A.2d 626 (D.C. 1979).
[5] Harmelin v. Michigan, 111 S. Ct. 2680 (1991) (upholding such a
sentence as not constituting cruel and unusual punishment).
[6] For some reasons for the legal futility of these moral claims, see
L.A. Rollins, The Myth of Natural Rights (Port Townsend, Washington:
Loompanics Unlimited, 1983); Robert Anton Wilson, Natural Law, or, Don’t
Put a Rubber on Your Willy (Port Townsend, Washington: Loompanics
Unlimited, ).
[7] A lawyer, an expert in the field, referred to American rules of
evidence as “the most careful attempt to control the processes of
communication to be found outside a laboratory.” E.W. Cleary, “Evidence
as a Problem in Communicating,” 5 Vanderbilt Law Review (1952), 282.
[8] Rita J. Simon, The Jury: Its Role in American Society (Lexington,
Mass.: Lexington Books, 1980), .
[9] Art. II, § 2; Am. VI; Am. VII; see also n. 19, infra. Similar
provisions appear in all state constitutions.
[10] Lawrence M. Friedman, A History of American Law (2d ed.; New York:
Touchstone Books, 1985), 155–156; Kermit L. Hall, The Magic Mirror: Law
in American History (New York: Oxford University Press, 1989), 107–108.
[11] Sparf and Hansen v. United States, 156 U.S. 51 (1895); United
States v. Dougherty, 473 F.2d 113 (D.C. Cir. 1972).
[12] E.g., Kathy L. Harrer, “Fun With FIJA in Federal District Court,”
The FIJActivist No. 12 (Summer 1993), 18 (reprinted from the Arizona
Libertarian).
[13] James Eisenstein and Herbert Jacob, Felony Justice: An
Organizational Analysis of Criminal Courts (Boston: Little, Brown and
Company, 1977), chs. 2 & 3.
[14] ‘FIJA’ Jury Power Information Kit (Helmville, Montana: Fully
Informed Jury Association, n.d.), 2.
[15] E.g., A Schelfin and A. Van Dyke, “Jury Nullification: The Contours
of a Controversy,” 43 Law & Contemporary Problems (1980): 51–115.
[16] Based on a recent (1994) term search of the TP-ALL (Texts &
Periodicals) database of the computerized legal research program
WESTLAW.
[17] United States v. Dougherty, supra, 473 F.2d at 115. In other words,
jurors are presumed to be ignorant of every single principle of law
except one — their power to nullify all the others! Jury simulation
research confirms the common-sense intuition that FIJA-like
nullification instructions do affect some verdicts. Irwin A. Horowitz,
“The Effect of Jury Nullification Instructions on Verdicts and Jury
Functioning in Criminal Trials,” 9 Law & Human Behavior (1985): 25–36.
[18] Harry Kalven, Jr. and Hans Zeisel, The American Jury (Boston:
Little, Brown and Company, 1966), 56–57 (approximately 75% agreement).
[19] Kalven & Zeisel, supra n. 17, at 162; Diane L. Bridgeman and David
Merlowe, “Jury Decision Making: An Empirical Study Based on Actual
Felony Trials,” 64 Journal of Applied Psychology (1979), 97–98.
[20] Duncan v. Louisiana, 391 U.S. 145 (1968) — the case which held that
the Fourteenth Amendment guarantees state criminal defendants a jury
trial in every case where Federal criminal defendants would be entitled
to one under the Sixth Amendment.
[21] In a leading study of a misdemeanor court the sample of hundreds of
cases analysed included no trials at all! Malcolm M. Feeley, The Process
Is the Punishment: Handling Cases in a Lower Criminal Court (New York:
Russell Sage Foundation, 1979), 127.
[22] Feeley, Process, ch. 8; Milton Heumann, Plea Bargaining: The
Experiences of Prosecutors, Judges, and Defense Attorneys (Chicago:
University of Chicago Press, 1978), 157 & passim.
[23] Lawrence M. Friedman, Crime and Punishment in United States History
(New York: Basic Books, 1993), 251–252; Kermit L. Hall, The Magic
Mirror: Law in American History (New York: Oxford University Press,
1989), 183–184.
[24] Not that I want to indulge in the romanticism I say some
FIJActivists exhibit. Local powerholders have often had much influence
over jury selection, and discrimination in jury selection on many bases
— race, class, gender, ideology — was long lawful and still occurs
unofficially. But the ideal of the jury as representative of the
community as opposed to the state apparatus still has some vitality.
[25] Kalven and Zeisel, supra n. 17, at 58.
[26] Horowitz, supra n. 17.
[27] Feeley, Process, 185–196.
[28] Malcolm M. Feeley, Court Reform on Trial: Why Simple Solutions Fail
(New York: Basic Books, 1983), 118–128.
[29] Lief H. Carter, The Limits of Order (Lexington, Mass.: Lexington
Books, 1974), 109–110.
[30] Malcolm D. Holmes, Howard C. Daudistel and William A. Taggart,
“Plea Bargaining Policy and State District Court Loads: An Interrupted
Time Series Analysis,” 26 Law & Society Review (1992): 139–159. One
wonders whether the generally unchanged conviction rate masks any ups
and downs in convictions for various kinds of cases.
[31] Vera Institute of Justice, Felony Arrests: Their Prosecution and
Disposition in New York City’s Courts (rev. ed.; New York: Longman,
1981).