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Function of Juries & Jury Nullification | 19 Feb 2013

-University of Virginia Honor Committee’s Proposed Jury Reforms Are Ill-Advised

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Two members of the University of Virginia’s law school faculty, Josh Bowers, Associate Professor of Law, and Kim Forde-Mazrui, William S. Potter Professor of Law, penned the following commentary on proposed changes to the University of Virginia Honor Committee’s jury system. The Honor Committee proposes, among other things, to abandon the jury of twelve students, randomly selected in each case, and to replace it with a panel of five Honor Committee members who would serve on an on-going basis. Professors Bowers and Ford-Mazrui make an excellent case for maintaining an independent jury of peers, especially in the Honor Committee system which imposes a single, harsh sanction of expulsion in all cases, regardless of the severity of the offense.

Proposed Jury Reforms Are Ill-Advised

Concretely, we believe that a jury trial right is integral to an honor system that summarily expels all offenders convicted at trial. We are troubled, therefore, to discover that the Honor Committee now intends to water down—if not outright abandon—the very hallmark of its proud Honor System. We are all the more dismayed by the Committee’s reasons and explanations—reasons and explanations that fly in the face of constitutional tradition, historical experience, established judicial doctrine, and social science. If nothing else, we now write to set the record straight about the value of a randomly selected jury (and direct democratic participation, more generally), and we urge the Committee to reconsider its position and the student body to reject the proposed reforms.

Our criminal justice system has long comprehended that a lay collective is the best mechanism to guard against apathetic, overzealous, and biased prosecutors and judges. In this vein, the Court has held that professional five-person juries—like the proposed panel—are insufficient to ensure impartiality, deliberation, accuracy, and fairness. According to the Court in Duncan v. Louisiana—the seminal opinion that extended the constitutional right to juries to state criminal trials—“the common-sense judgment of a jury” may be preferable “to the more tutored but perhaps less sympathetic reaction of the single judge.” The Court understood that a lay body brings with it a unique perspective that an elite professional panel may lack. For this reason, the Court observed in Glasser v. United States that a jury must be “truly representative of the community, and not the organ of any special group or class.” Lay juries—and, by extension, randomly selected student juries—bring to each case fresh eyes and everyday wisdom (which, in turn, may lead them to different results). As the Duncan Court observed: “[W]hen juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed.”

At bottom, institutional actors are subject to institutional biases, including a tendency to presume guilt. Their perspectives are colored by their positions. It is no surprise, then, that the Honor Committee currently expresses deep disagreement with acquittals that served to defeat the very charges that Committee members saw fit to bring. Look no further than the Campaign for Honor’s own website. Throughout, the unmistakable tenor is that accused students who challenge charges do so dishonestly. The Committee has appointed itself arbiter of what constitutes “overwhelming evidence,” and it has dubbed all randomly-selected students who came to different conclusions “apprehensive and uncomfortable” with the Honor System. And we anticipate that the elite members of the proposed jury panel will skew likewise in favor of conviction.

We grant that there almost certainly are genuine instances of randomly selected student juries nullifying honor trials, even if we cannot identify such cases conclusively. But we think that these student juries may acquit at high rates for the same reason that common-law juries commonly acquitted defendants facing mandatory capital punishment for relatively trivial felonies under England’s “Bloody Code”: acquittal was the only option to a sometimes intolerably disproportionate sanction. In the face of a single sanction, an acquittal may convey the message that the punishment is too harsh. Rather than heed that message, the Honor Committee proposes to shoot the messenger (that is, the randomly selected jury) and replace it with a “highly trained” panel that, to paraphrase H.L. Mencken, is prepared to impose the single sanction good and hard.

In imposing a single, harsh sanction for all offenses, regardless of proportionality of the punishment to the severity of the offense, the University of Virginia Honor Committee is pursuing a retributive strategy rather than a restorative one. Rather than to address the injustice of the single-sentence punishment system, such as by entrusting the jury with finding an appropriate sentence, it seeks to dismiss the independent jury altogether to be replaced with a panel predisposed toward imposing harsh punishment rather than restoring balance to the community. It is a shame that, in the home state of Thomas Jefferson who famously defended the jury as “the only anchor yet devised by man, by which a government can be held to the principles of its constitution,” an institution of higher learning seeks to rid itself of that anchor.

We encourage you to read the entire article. It illustrates that juries need not be operated formally within the government legal system to be an effective body in protecting the rights of all involved including the accused, restoring balance, and delivering justice in a community.

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