By Norman J. Finkel.(*) Cambridge and London: Harvard University Press, 1995. Pp. 390. $39.95.
The American jury system is on trial. Scholars have dissected the "apparent foolishness inherent in asking the ignorant to use the incomprehensible to decide the unknowable,"(1) and commentators have denounced several recent high-profile juries,(2) going so far as to brand the O.J. Simpson jury "a total failure."(3) The growing consensus appears to be that jury justice is delayed, inefficient, and tinged with unfairness."(4)
In Commonsense Justice, however, Norman Finkel rejects this notion of jury incompetence. Finkel contends that jury verdicts are generally "solid, substantial, and sound" (p. 337). The defect in the American legal system is not the jury, says Finkel, but the law itself, which is unduly preoccupied with the principle of objectivity. The remedy, Finkel believes, is to reform the law according to "commonsense justice," which "reflects what ordinary people think is just and fair" (p. 2).(5) Moreover, Finkel argues that when a jury decides to nullify(6) the law because it conflicts with commonsense justice, we should see nullification as the jury's attempt to perfect the law--not defeat it (p. 5). Finkel's mission is to restore what he thinks the law has forgotten: "the deeper roots of justice" found in community sentiment (p. 337).
Commonsense Justice is timely and informative, yet flawed. The major shortcoming is Finkel's failure to recognize that the policy justifications underlying criminal law(7) transcend mere moral intuitions. In addition, Finkel's casual dismissal of the harms of nullification--including the possibility that juries will convict for extralegal, vengeful reasons--weakens an otherwise thoughtful discussion of the American jury.
Finkel structures Commonsense Justice around one question: "Should the law follow the path laid by community sentiment, or should the community follow the path the law has laid?" (p. 1). He believes that the "law on the books"--as set down in the Constitution and statutes and developed through judicial decisions--must yield to another law: commonsense justice. The latter concept reflects the "intuitive notions [of fairness and justice that] jurors bring with them to the jury box" (p. 2). Commonsense notions "are at once legal, moral, and psychological" (p. 2).
Finkel advances two main arguments to justify the primacy he accords community sentiment. First, he contends that "acknowledging [such] sentiment . . . is foundational for the continued functioning of government" (pp. 18-19). As support, he cites Georgia v. McCollum
8 and Planned Parenthood v. Casey,(9) two recent Supreme Court decisions that explicitly recognize the necessity of maintaining public confidence in the legal system (pp. 16-19).(10) Second, Finkel argues that a jurisprudence grounded in community sentiment-rather than sterile, black-letter law-provides "the better context in which to judge human actions" (p. 322). He claims that citizens frame cases differently than the law does, thereby "seeing a different 'picture' of what the case is about and of the relevant factors to be included" (p. 319). For instance, in cases of self-defense, insanity, felony-murder, and manslaughter, jurors weigh more factors than the law's restricted set of sanctioned elements" (p. 319). Analogizing to classical literature, Finkel concludes that this expansive approach is preferable because "[v]iewing only the last act does not give us enough of the drama for us to render verdicts on the likes of Hamlet or Othello, Antigone or Oedipus" (p. 322).
A psychologist, Finkel supports his normative position by using the experimental method of social science. He designs experiments that require jurors to render verdicts in response to written hypotheticals because according to Finkel's interpretation of Eighth Amendment precedent-jury verdicts are "objective indicia" of community sentiment (pp. 6, 39). Finkel then compares the experimental verdicts with the verdicts that he believes are compelled by a straight application of the law. Incompatible results signify that the law...