Judicial Nullification

• Publication year: 2022

38 Creighton L. Rev. 545. JUDICIAL NULLIFICATION

Creighton Law Review

Vol. 38

BRUCE A. ANTKOWIAK(fn*)

I. INTRODUCTION AND OVERVIEW

It is an act constituting felonious understatement to say that the right to trial by jury has assumed a heightened importance in the Criminal Justice System. Since the United States Supreme Court's pronouncement in Apprendi v. New Jersey,(fn1) there has been a continental shift not only in the structure of criminal sentencing but also in the basic concept of power sharing throughout the system. When the Supreme Court, in Blakely vs. Washington,(fn2) said that it most certainly meant what it said in Apprendi, which was: a jury, not a judge, has the constitutional authority to make factual findings about a case where those findings operate to extend the maximum penalty a defendant faces; the Blakely Court said more than just that it was time to revisit a Guideline scheme of sentencing in which the parties sometimes engaging in the sophistry of whether someone's role was "minor" rather than "minimal."(fn3)

In other words, the Blakely Court demanded that sentencing judges see the world in a new way. They were to see their courtrooms crowded with yet another group with specific authority to administer the criminal justice system on a case by case basis. That overall authority was to be divided not just among the legislature, the executive and themselves. A piece of that political pie was to be reserved for a committee of the people, in the form of a jury, whose authorization was needed before the others could properly act to punish one of the governed, unless that "governed" agreed, by way of a guilty plea to certain specific terms, to forego that authorization up to a defined point.

This new world view will cause thoughtful judicial self-examination, as courts review their role juxtaposed to that of the two other branches and the people as the authorizing authority. Judges will undoubtedly be tempted, in the first instance, to apply these new decisions using the broad notions of the science of political physics, that is, by assuming that when some entity gains power within a political system, either the system as a whole has acquired more power than it had before or that one or more of the old players have given up some of their authority to the newly emerged entity.

In this mindset, judges will readily deduce that the Apprendi/Blakely line of cases does not operate to gather more power within the criminal justice system.(fn4) Rather, they limit the power of the traditional branches of government. Legislatures are still free to create offenses and fix penalties for them, and prosecutors are free to pursue convictions under those defined crimes, but the system may no longer allow the courts to treat the jury as a mere appendage to the judicial branch of government. The people, by way of the jury, through the device of fact-finding that determines the maximum sentence allowable, must be consulted as to the limits of the power the three branches may exercise in a particular case. On their own, the governmental players cannot define those limits by fact-finding made within their exclusive purview.

As the system has gained no new authority, the "physics" of the matter will seem to dictate that the presence of a newly recognized participant means that the power of one or more of the original three must necessarily recede. Naturally, judges will tend to view judicial authority in sentencing as more confined by the perception that jury fact-finding now operates in heretofore unrecognized ways to guide the ultimate sentence, at least by defining its outer limit.

All of this is well and good. At least, it is what the Supreme Court has dictated. However, it portends a severe danger. In this process of judicial self-examination, courts are likely to bury even deeper a power they hold that should, far from receding, burst to the surface of our collective jurisprudential consciousness.

In defining the new contours of their roles, judges should openly recognize an aspect of the sentencing process that is now and has always been an obligation for them to fulfill and an authority for them to exercise. A guilty verdict, no matter what else it does, does not absolve the judge from entertaining and acting upon doubts he or she has about the guilt of a defendant in the sentencing phase of the case. Just as a judge's certainty about the culpability of a defendant should inform the sentencing decision, a judge's doubts about the correctness of the guilty verdict should be openly considered and weighed as a factor arguing for a diminished penalty. This consideration should be embraced as an effort to do substantial justice.

By espousing this thesis, I do not call for judges to see themselves in Old Testament terms as standing in a line in which an omnipotent God empowers Moses to represent the people before God, with Moses then decreeing God's will through those laws, and appointing "men who fear God"(fn5) to sit as the first line of judgment over the law's enforcement. The thesis advanced here is faithful to the teaching of the United States Constitution - that the origin of a judge's authority is squarely in the hands of those individuals whose social contract is the entirety of the source of our political legitimacy. However, I hope to demonstrate that the system the people created includes a sensible and compelling mandate for judges to recognize the imperfections in a jury's fact-finding capacity and, where reasoned judgment tells the judge the jury may have erred, authorizes - indeed requires - judges to modify the potential tragedy of the unjust verdict by not blindly coupling it with a debilitating term of incarceration.

In one sense, this thesis seeks to find philosophical support for something I suspect has been occurring all along despite the system's unwillingness to recognize it publicly. As someone who has labored for over a quarter century in the courtrooms that are the stage for the pageant of the criminal law, I have long believed that judges regularly and systematically take into account their own beliefs as to the defendant's guilt or innocence in passing on a sentence. The reader is free to draw their own empirical sense about whether a human being who imposes a sentence on another could not be affected by their sense that the person they were about to incarcerate might actually not have committed the deed for which the incarceration is otherwise justified.(fn6)

Indeed, even the judge for whom mercy is merely an intellectual abstraction would be lured to this consideration. In the final analysis, unless conscience has been shelved along with the capacity for mercy, a sentencer must be haunted by the notion that, at some future day, the invisible stain of the blood or freedom of a truly innocent man may be rendered indelible on the hands of the one that passed that sentence in the face of those reasoned doubts.(fn7)

This article seeks to set forth a thoughtful and comprehensive argument that judges should openly indulge doubts that they have about the guilt of the defendant as a mitigating factor in sentencing. The practical reasons for this indulgence are that the system operates with a demonstrably high error rate of convictions of persons actually innocent of crime, and that our standard of proof beyond a reasonable doubt is one that, while logically and intentionally set to err on the side of acquittal in a doubtful case, is not so precise as to assure us that the result of a jury verdict may be accepted without question or a sentencing court's sensitivity to that matter. Allowing a judge to con-sider the residual doubts they may have regarding the defendant's guilt is consistent with the overall structure of a limited government that elevates individual liberty to the highest social plateau and rightfully demands that multiple levels of reasoned scrutiny exist to insure that the deprivation of an individual's liberty by the collective of society is done only with a heightened sense of certainty.

I hope to show that it is a fundamentally sound extension of the legal theory underlying the roles of the court and jury to posit that while the jury's verdict is the necessary first step in the sentencing process (and is a step that sets its parameters), it is a step that authorizes but does not dictate a precise level of incarceration otherwise to be meted out. The people have entrusted the judiciary with a sentencing role that invites consideration of all relevant aspects, one of which must certainly be that the individual being sentenced has properly earned that status by conduct prescribed by the legislature.

The new perspective judges must give to their roles should permit them to see that the traditional goals of sentencing embrace the notion that a judge may consider residual doubts about a defendant's guilt in passing a sentence regardless of which of those goals (or any combination thereof) the particular sentencing scheme implements. Indeed, residual doubts are a legitimate and compelling sentencing consideration for a jury passing on the question of life or death and to deny its legitimacy for a judge passing a sentence in non-capital case is both illogical and contrary to human nature.

I will try to demonstrate that allowing a court to consider its own doubts about the defendant's guilt breaks no...