Nancy S. Marder, 1
The institution of the jury continues to be under attack.2 In the wake of criminal trials, such as O.J. Simpson,3 in which the jury was portrayed as biased or incompetent,4 and civil trials, such as the McDonald's coffee cup case,5 in Page 338 which the jury was portrayed as vindictive6 and the award as outrageous,7 the other branches of government have tried to limit juries' responsibilities. These efforts have taken the form of legislation to cap damage awards8 and to eliminate the right to a jury trial in certain types of civil cases,9 as well as legislative attempts to replace the unanimity requirement with a less stringent voting rule.10 They have also taken the form of judicial decisions that limit the Page 339 kinds of issues that juries decide,11 the information that jurors are given about their role,12 and press accounts that support the view of runaway juries13 that cannot be trusted.14
Against this backdrop of criticism and skepticism of the jury, I will argue that the jury still plays a vital role in the judicial system in a modern democracy. One way of explaining the jury's critical role is by comparing it to the "governor" in a steam engine. When the steam engine is operating at a safe speed, the governor does not seem to be serving any useful purpose; it appears to be an unnecessary mechanism. However, as the speed of the steam engine increases, the governor begins to block the power, so that the engine starts to slow itself down. In this way, the governor functions as a feedback mechanism. It enables the steam engine to regulate itself and to reduce its speed, thus averting an explosion.
The jury in a democracy functions in much the same way as the governor in a steam engine. The legislature passes laws, and for the most part, these laws are acceptable to the populace. These laws are regularly enforced by police and prosecutors and applied by juries and judges. At such times, the jury may seem like an extraneous institution. However, from time to time, there is widespread disagreement with a law or the way it is enforced. When such a situation arises, juries serve a governor-like function, indicating to the other branches of Page 340 government and to the rest of society that there is widespread disagreement, and that some modification of the law or its enforcement is required. Although the jury does not change the law, just as the governor does not change the speed of the steam engine, the jury signals to the other branches, just as the governor signals to the steam engine, that an adjustment is needed. The jury, in its governor-like role, serves as a mechanism that provides feedback to the other branches of government before outrage, particularly among the outnumbered or disenfranchised, becomes harmful, if not violent.
I focus on three examples in which the intersection of drug laws and sentencing schemes has led to a pattern of jury acquittals or hung juries. It is my contention that this pattern should signal to the legislative and executive branches that change is in order, and indeed, change has already occurred in some of the examples I have chosen. I focus on patterns of acquittals or hung juries because any single jury may disagree with a law, its enforcement, or a sentencing scheme, but that jury may simply be an anomaly. However, when jury after jury disagree with a particular law,15 its enforcement, or a sentencing scheme, then their disagreement, as translated into verdicts of acquittal or hung juries, represents a depth of feeling in the community such that the issue must be addressed if the laws are not to be vitiated.
Admittedly, the jury verdict is a blunt instrument for communicating disagreement. In a criminal case, the jury can only communicate with a verdict of guilty, not-guilty, or a hung jury; moreover, a criminal jury does not decide a sentence except in some capital cases.16 When juries wish to express their disagreement with a potential sentence about which they have not been told but often surmise, their only means is an acquittal or a hung jury. In a civil case, the jury can only communicate with a verdict of liable or not-liable, though the jury does have the damage award, and sometimes a punitive damage award, as a means of conveying the depth of its views. Undoubtedly, the jury verdict in both civil and criminal cases is susceptible to misinterpretation because it is such a blunt instrument. However, my contention is that a pattern of jury acquittals in case after case of the same type is less likely to be ambiguous and anomalous and more likely to signal the need for change, and has, in fact, been Page 341 understood that way.
Part II of this paper focuses on three examples in which drug violations resulting in harsh mandatory sentences have produced jury acquittals; these include the "three-strikes" law in California, the Rockefeller drug laws in New York, and the so-called "Bronx juries" hearing drug cases. Part III identifies some of the jury's institutional features that make it particularly well-suited to perform its governor-like role. In Part IV, I argue that the passage (or near passage) of less harsh sentencing schemes in several states is a response by state legislatures to the feedback provided by jury acquittals in these drug cases. In the states in which the legislature has failed to respond, the executive or the citizenry through referenda has stepped in and responded to the jury acquittals. Thus, the jury acquittals do not indicate juries run amuck; nor do the legislative, executive, and referenda responses indicate that politicians or citizens are soft on crime. Rather, these institutional responses to jury verdicts are appropriate to a democracy and allow the laws and sentencing schemes to be as closely calibrated as possible to changing norms in society.
This second part focuses on three examples in which the intersection of drug laws and sentencing schemes or their enforcement has produced a pattern of jury acquittals or hung juries. The examples are the "three-strikes" law in California, the Rockefeller drug laws in New York, and the so-called "Bronx juries." With all three examples, the legislative, executive, or popular response suggests that other governmental branches, or the citizenry acting in a governmental capacity, have responded or are beginning to respond to the juries' acquittals. Undoubtedly, there are other examples where the governmental branches have not yet responded to the juries' feedback. Although there are other factors that pressure governmental branches to initiate reforms, a pattern of jury acquittals or hung juries is an important indicator of a disjuncture between the laws or sentencing schemes and the community's view of them, and the other branches of government have interpreted these acquittals or hung juries in this way.
California is not the only state with a three-strikes law,17 but unlike other states, California frequently invokes its law,18 which is considered "the most Page 342 punitive among some 20 similar state statutes and a Federal sentencing law."19The three-strikes law in California requires that any person who is convicted of a serious felony and has two prior felony convictions defined as "violent" or "serious" is to receive a sentence of twenty-five years to life imprisonment.20The California law also contains a provision that the second strike can result in a sentence twice as long as would ordinarily be given if the defendant's first conviction is for an offense on the state's list of offenses that count as "strikes."21 Although California's three-strikes law is not specifically directed at drug offenders, it often affects them because "[a] third strike is most likely to be a drug offense."22 According to one study, "application of 'three strikes' has occurred in far more cases involving marijuana users than in cases involving violent offenders."23 This same study offered the following analysis of who is affected by the three-strikes law: "85% of those found guilty of third-strike offenses are convicted of non-violent crimes, most of which are for drug possession."24 The Legislative Analyst's Office, the non-partisan research arm of the California State Legislature, examined the effect of the law on second- and third-strikes and reached a similar conclusion: "70 percent of all second- and third-strike cases filed in 1994 were for nonviolent offenses. The largest Page 343 categories were for drug possession and burglary."25 One point shared by these studies is that the "[e]vidence suggests that nonviolent offenders and drug offenses predominate as the major triggers implicating three strikes."26
The three-strikes law has led to some harsh results in California. There have been numerous newspaper accounts of its application for seemingly minor offenses,27 including a person who was sentenced to life in prison after stealing a slice of pizza28 and another who was similarly sentenced after the theft of cookies.29 The Ninth Circuit recently held that a three-strikes sentence of fifty years' imprisonment for a shoplifter with...