Crime, Punishment and Juries
Felten, Eric, The Washington Times (Washington, DC)
We Americans are law-obsessed. No longer content with the kabuki drama of Perry Mason or even the low comedy of "Judge" Wapner's "People's Court," we now tune in to Court TV. The bestseller lists are clogged with lawyer-penned legal thrillers. Our politics is less about who will be elected than who will be indicted. Nor are we merely legal voyeurs - the body politic is crawling with attorneys and we're itching to sue. And yet, for all our loving attention and devotion to things legal, ours has become an extraordinarily lawless society. What gives?
The law has not degenerated in spite of our attention to it, but because of our enthrallment. We now ask much more of the criminal law than it was designed to deliver. And like a pack-horse groaning under an impossibly heavy load, the law has come up lame.
A trial, at its most basic, is a process for determining whether or not a particular individual in a particular instance violated a particular rule of conduct. But now we want to use that process to determine all sorts of things it was never meant to. Trials have become exercises in human psychology ("Why do people violate the rules?"), in social activism ("Why should people violate the rules?"), in ersatz civic virtue ("Who are we to judge?") and in misplaced legislative scrutiny ("What should the rules be?").
Who's to blame for putting the legal peg in all the wrong-shaped holes? To date, most of the opprobrium has been heaped on the legal professionals, with little of the responsibility attaching to those crucial arbiters in the system, jurors. Maybe it is time that they took a little more of the heat. As James Q. Wilson argues in his slender book "Moral Judgment," the very same citizens who want the courts to get tough on criminals, when they become jurors start looking for excuses and explanations by which they can "understand" the crime and criminals at hand.
Crime is deeply frightening and disorienting, a seemingly random threat that can take away property or life. No wonder, as Mr. Wilson puts it, "a juror's desire for explanation often overrides the citizen's desire for punishment." It is as though by finding an explanation for the threat, we can make it less mysterious and foreboding.
Take, for example, the first trial of brothers Lyle and Eric Menendez. If their crime was merely a result of abuse visited on them by a warped and tyrannical father, then the decent parents on the jury could comfort themselves that they had no reason to fear their own children. But if the young men were simply greedy and evil - if the parents didn't force the kiddies to kill in self-defense - well then, some jurors might have felt the terrifying need to keep their bedroom doors locked.
In this way jurors are like primitives in the shadow of a volcano -looking for explanations that will allow them to get down to the business of appeasing the gods. And the explanations jurors come up with are about as useful for stopping crime as sacrificing virgins is for staunching magma.
Mr. Wilson is not interested in blaming jurors, however. He merely wants to reform legal procedure to make it harder for lawyers to exploit jurors' worst instincts. …