Albert W. Dzur’s piece “Twelve Absent Men” appearing in the Boston Review correctly identifies the need to restore the power of juries, which he states “no longer have opportunities to play decisive roles in our justice system” in the face of “plea agreements, settlements, summary judgments, and other non-trial forums that are usually more efficient and cost-effective in the short term.”
Dzur recommends a number of reforms, such as creating more opportunities for deliberation during the trial, allowing note-taking, permitting the questioning of witnesses by jurors, involving juries in sentencing, and limiting plea-bargaining. The common denominator of these proposals, however, is that they direct the jury down the path of supporting the establishment, becoming a more equal “partner in crime,” deepening the collusion with and adding legitimacy to the state’s courts.
Disappointingly, one key reform remains absent from Dzur’s laundry list: informing juries of their power to vote their conscience by vetoing the application of a law to a particular case.
Dzur comes tantalizingly close to identifying this crucial missing element when he states, “while the verdict of a single trial does not make policy, a pattern of verdicts regarding the same offense does…even if the relevant legislative or executive bodies do not react by changing the law or its application.”
The jury has the traditional right to judge the law as well as the facts, and vote “not guilty” if they disagree with the law, even if the accused would otherwise have been considered guilty. Dzur avoids this territory probably because it is considered “too radical,” and judges dislike the idea of what has come to be known as “jury nullification.”
Fortunately, jury nullification activists are making headway–cases have upheld their right to distribute literature on courthouse grounds and bills are active in various state legislatures to require judges to advise juries of this traditional power.
Once the idea of jury nullification catches on, the jury box will again be more than a mere sandbox or safe playground for the state.
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