The Supreme Court’s recent decision in Ramos v. Louisiana settled a question. The Court held that the Sixth and Fourteenth Amendments require that jury verdicts in state criminal cases must be unanimous.
All of the justices seemed to agree on that point, although several did not agree that the conviction in the Ramos case should be overturned. In multiple opinions, filling over 80 pages, the justices debated the proper deference to give to a 1972 opinion which had upheld state schemes allowing convictions on 10-2 votes—the approach allowed until recently in Louisiana and still permitted by Oregon law.
Commentators were quick to argue that the whole enterprise had less to do with Ramos and his appeal than with the justices arranging the chessboard for their coming battles over other precedents, notably over Roe v. Wade.
But to the extent that the Ramos controversies did focus on the constitutional role of juries, they provide a nice illustration of the biblical warning against straining at a gnat and swallowing a camel.
Ramos dealt with occasional non-unanimous jury verdicts in two states. But nowhere in the 87 pages of Ramos opinions did the justices mention that (according to the National Center for State Courts) between 1976 and 2009 criminal jury trial dispositions in all of the 50 states cases dropped from 3.1 percent to 1.1 percent.
The remarkable fact is not that unanimous juries are required; it is that virtually nothing is decided by jurors, unanimously or otherwise. And no one seems to care.
When I first moved to Boston years ago and joined the Roxbury Defenders, I inherited the caseload of a colleague who was departing for civil practice considerably the worse for wear.
The 100 or so client files waiting on my new desk didn’t take up much space because they were all empty.
Pending court dates were not recorded. So I didn’t report to a courtroom in the morning; I went to my office instead. I waited there until the first courtroom clerk called and asked where in the Hell I was.
I would then go to that clerk’s courtroom. Once I was there, I could let him deal with the army of clerks from other courts lining up throughout the day to demand my presence.
It wasn’t my work that resolved this situation; it was the arrival in Boston, for his annual April sojourn, of Judge Jimmy “Will-He-Take-A-Little-Time?” Donahue.
Judge Donahue’s job was to clear the docket and get everyone to the Cape in time for the summer.
This assignment was a secret to the same extent that Thanksgiving is a secret and, like Thanksgiving, it came around every year. Everyone—prosecutors and defenders both—saved their most intractable cases for Donahue Time.
Donahue was adored by court administrators. He was seen as a kind of Wonder Judge.
He held brief plea conferences in his chambers. No threatened sentence was too blood-curdling for Jimmy to brandish if your client insisted on a jury trial. On the other hand, if you resisted his threats, no sentence was too lenient for him either.
If a breathtaking discount was what it took to induce a guilty plea, then you got the discount.
Once the defendant agreed to plead, Judge Donahue’s guilty plea proceedings were not marred by excessive daintiness. Time was of the essence, and second thoughts were anathema.
“You raped the old lady? Very well, Sir, you raped the old lady. I find you guilty. I sentence you to (whatever he had promised in chambers). Good luck to you, Sir. Next.”
I walked many dazed felons out to the street that month, all sentenced to “time served” in exchange for their guilty pleas. On July 4, my desk was clean; the courtrooms were empty; the beaches full. No jurors required.
In practice, every urban justice system in this country constitutes an elaborate apparatus of carrots and sticks designed to make jury trials disappear. Donahue offers an unusually perfect example of the normal. He was freer with carrots than others (generally, sticks predominate) but he was no renegade.
And before we shrug Judge Donahue off as local color, let’s ask ourselves this: Why was Kalief Browder subjected to the three years of isolation and brutality on Riker’s Island that exacerbated his mental illness and led to his suicide?
The answer: Kalief Browder insisted on his right to a jury trial, and the courts insisted on denying it.
“You can’t have a trial; you can have another trial date. You can wait for that on Riker’s Island.”
Meanwhile, 11 percent of the 349 prisoners found to be innocent by DNA testing, responded to the system’s meat-grinder by giving up their right to a jury trial and pleading guilty. We paid for their incarceration; the real criminals stayed on the street.
Of course the criminal justice lifers who are operating this system have their own explanations ready for the absence of jury trials: “It’s not like we chose this; there are just too many cases to process for us to get citizen jurors involved.”
There’s nothing insincere about this. When you work on the front lines that’s how things look. Jury trials and public participation are just the losers in an unavoidable triage function. You’re playing the hand you’ve been dealt.
But it’s a mistake for the public to rely as completely as it does on the accounts of front line people like myself, who are drowning in cases and ruefully grateful for such lifelines as our little world’s Judge Donahues throw us.
We’re not dishonest, but we’re not impartial either. And we are not experts. We have to get through our days somehow, and seeing things from the restricted vantage point required by our daily life obscures some very fundamental facts.
Our Emergent Citizen-Free System
You can’t see “wetness” in any individual molecule of H2O; wetness is an “emergent” quality—the “greater than” zone of “greater than the sum of the parts.”
You can’t see the nature of our justice system in any individual extemporaneous transaction a prosecutor and a defender patch together to move the docket list.
But if you look, you can see what emerges from these routine transactions, and what emerges is—at least it ought to be—disturbing.
Every opinion in Ramos v. Louisiana paused to deplore the racial and religious biases at the roots of the non-unanimous verdict rules instituted in Louisiana and Oregon.
But, if the justices had looked past their handful of non-unanimous jury verdicts to the cascading floods of non-jury dispositions they might have noticed that, as
Malcolm Feeley and Jonathan Simon pointed out in a prescient 1992 article, we’ve moved on completely “from an aspiration to affect individual lives through rehabilitative and transformative efforts” and toward the more “realistic” task of “monitoring and managing intractable groups.”
“Managing intractable groups” is the governing idea of contemporary criminal justice— not only of the judges and Assistant District Attorneys but of the academics and policy-makers devoted to data-driven solutions.
But “managing intractable groups” is just what the Jim Crow non-unanimous verdict laws were pursuing too. And one “intractable group” in question is the same group: African Americans.
The judges—all the system’s operators—pursue this goal in a divided world conceived of as one of Us/Them, Here/There.
Managing groups of Them permits an actuarial approach. If you know what happens 80 percent of the time, then you know what to do 100 percent of the time.
But the percentage calculation is where a jury starts: a jury wants to know whether this case is one of the 80 percent or one of the 20 percent.
From the individual perspective, the jury’s role is protective. It inhibits casual misapplication of the probabilities.
But from the contemporary system’s perspective, the jury’s presence is not only costly, time-consuming and inconvenient; it is profoundly disruptive.
A professionalized system wants to be walled off from the community not only because it has no use for the jury’s individualizing orientation but also because the system is threatened by that orientation.
No isolated coerced plea foreclosing jury participation is animated by racist motives, but what emerges—from the community’s perspective—is the heedless exercise of raw power by an occupying army with colonialist control, not minority community safety, as its goal.
The question that never gets asked is whether we have too many cases for jury trials because we have so few jury trials. What if we brought only the cases the community members think their safety requires us to bring, would we bring fewer cases?
And if we our new, lower caseloads allowed us to return to an individualized focus on particular crimes, victims, criminals, and harms would we stand a better chance of realizing the restorative justice potential of the criminal process: of bearing honest witness to damaged people and damaging events?
Ending the ‘Trial Tax’
We didn’t get where we are by meticulously designing this apparatus and imposing it. It took long years of “practical drift” down a well-blazed path of least resistance to get here.
This process has an accelerating ratchet built into it.
Fewer trials means fewer lawyers with the experience necessary for trials, which means even fewer trials. Fewer individualized narratives means fewer individual problems identified, which means fewer programs to treat those problems, which means less pressure to illuminate treatable problems.
Still, here we are. We have the power to change things.
One virtue of the Ramos v. Louisiana decision is that it reminds us how central the idea of jury trials was to the Founders’ vision of the American Republic.
Jefferson believed that “The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.”
His friend and antagonist, John Adams, thought that “representative government and trial by jury are the heart and lungs of liberty.”
Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.
So, eliminate the “trial tax”: the sentence enhancement extracted from anyone who goes to trial. Anyone who wants to claim to be a Progressive Prosecutor has to commit that no one gets more time from his or her office for asking for a jury.
The prosecutor’s post-trial recommendation will be the same as the pretrial recommendation. Every administrative judge has to announce that his or her current aspiration (i.e, zero jury trials) is repudiated.
From now on a jury trial is seen to be a good thing—as a necessary goal, not an expensive luxury. Through the jury, the community hears out the victim’s account (where there is a victim); it hears out the defense; it renders a verdict.
We’ll take a year off the back end of every sentence, save that money, and spend it on trials. We need the jury’s protection, and we need the jury’s disruption too.
We can have the justice system the Founders thought we should have, and everyone will play a part.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.