Reflections on Russia's Revival of Trial by Jury: History Demands That We Ask Difficult Questions Regarding Terror Trials, Procedures to Combat Terrorism, and Our Federal Sentencing Regime
| Publication year | 2002 |
| Citation | Vol. 26 No. 02 |
Twentieth-century politics irrevocably joined the United States and Russia as two sides of the same coin; the history and culture of each became defined, in many respects, in terms of the other. In the mid-1980s, I attended a first-of-its-kind conference of twenty American jurists and twenty Soviet jurists at Dartmouth College to explore this duality in the context of our respective judicial systems.(fn2) For me, the most memorable portion of the conference was a mock jury trial conducted for the Soviet visitors. My Cold War perspective and ignorance of Russian juridical history led me to expect the Soviet jurists to react to this program with defensive hostility. I was wrong. Their hunger for new ideas was palpable; the jury trial proved to be the highlight of the conference. Less than a decade later, following the collapse of the Soviet Union, that hunger became the genesis for Russia's most comprehensive criminal justice reforms since Tsar Alexander IPs celebrated 1864 Reforms. These new reforms include the revival of the right to trial by jury for serious criminal offenses.
Historians have aptly documented both Russia's use of jury trials during what is known as the Golden Age of Russian Law-the period from Tsar Alexander II's 1864 Reforms until the October 1917 Revolution-and the subsequent Soviet inquisitorial criminal justice system.(fn3) Likewise, legal scholars have comprehensively analyzed Russia's 1993 revival of jury trials and its other monumental criminal justice reforms.(fn4) This Article employs those analyses as a mirror for reflections on current challenges facing the United States criminal justice system. Twenty years ago, I believed such challenges, which demand careful scrutiny of the rights of individuals and the interests of the state, were reserved for my Soviet peers. Times have changed. Specifically, this Article seeks to stimulate a historically grounded discussion by asking what Russia's experience with jury trials, the development of alternative judicial rules and procedures for political crimes,(fn5) and jury nullification may teach us about terror trials, procedures to combat terrorism, and our federal sentencing regime. By asking these questions, Russia's experiences may offer the benefit of both hindsight and foresight.
This Article begins by discussing the nineteenth-century origins of trial by jury in Russia and the changes the system endured until the October 1917 Revolution, focusing particular attention on both the progressive exclusion of political crimes from the jurisdiction of the jury and use of alternative judicial procedures for such crimes. Next, the Article outlines the fundamental principles of the inquisitorial criminal justice system, which defined and dominated Soviet jurisprudence. Part I concludes by addressing Russia's revival of trial by jury in 1993, the specific characteristics of its new jury system, the other monumental criminal justice reforms of the 1990s, and the struggles that Russia now faces with respect to the implementation of those reforms. After developing Russia's juridical history as a historical lens, Part II uses this lens to focus reflections on terror trials, procedures to combat terrorism, and the federal sentencing regime in the United States.
I. The History of Trial by Jury in Russia
An intellectual wave, premised on the rights of the individual, swept across Europe and into imperial Russia in the mid-nineteenth century.(fn6) In 1861, less than ten years into his reign, Tsar Alexander II emancipated the serfs.(fn7) Next, he tackled the judicial system. The Reforms of November 20, 1864 created an independent judiciary and professional bar, instituted public trials, and granted rights of appeal.(fn8) However, the most radical reform provided the right to trial by jury with respect to all "crimes or misdemeanors for which the law prescribed punishment involving deprivation of, or restriction in, civil rights."(fn9) For the first time, a panel of citizens could decide, according to their conscience, the guilt or innocence of the individual accused.(fn10) The 1864 Reforms mandated twelve-person juries with two alternates; prospective jurors faced no literacy, education, or property requirements.(fn11) As in France, juror unanimity was encouraged, but was not required.(fn12) Instead, the jury determined guilt or innocence by simple majority.(fn13) The 1864 Reforms' recognition of individual rights led them to be labeled "Russia's first constitutional charter."(fn14)
Nevertheless, the 1864 Reforms faced fierce opposition. Opponents, including prominent lawyers and intellectuals, objected that the masses, including emancipated serfs, lacked morality, elementary education, or juridical sense.(fn15) They warned that the public's resentment of law and authority would lead to rampant jury nullification.(fn16) In response, reformers argued that jury service would educate the public, teach juridical sense, and foster respect for the law.(fn17) Further, the reformers believed the jury system would inject a degree of popular compassion into a criminal justice system characterized by frequent whippings, banishment, and a highly restrictive doctrine of formal evidence.(fn18) After thorough debate, the State Council agreed with the reformers. Interestingly, the Council concluded that a defendant's peers would better understand the relevant facts, customs, frames of mind, and morality than the judge, who was usually a member of a vastly disparate social class than the defendant.(fn19)
Two additional provisions of Russia's jury system demand attention. First, despite opponents' distrust of the masses, juries had explicit authority to nullify the law. As in continental Europe, the jury could acquit the defendant of all crimes charged despite concluding that the defendant committed the acts alleged, and even when the defendant confessed to committing those acts.(fn20) Thus, the jury's collective conscience always controlled.(fn21) It is also relevant to note that jury nullification served as the only means available for public disapproval of Draconian mandatory sentencing guidelines, which the 1864 Reforms did not address.(fn22) In fact, by 1887, approximately half of all acquittals stemmed from the jury's distinction between perpetration and guilt.(fn23)
The second provision of the 1864 Reforms that demands attention is the exclusion of political crimes from jury consideration.(fn24) That is, any crime that was allegedly motivated by political beliefs, that was a challenge to government authority, or that threatened the security of the state was excluded from the jurisdiction of the jury.(fn25) Courts with class representatives tried all such cases, or such cases were supervised by a special government department.(fn26)
The significance of jury nullification and alternative judicial procedures for political crimes converged in the infamous Vera Zasulich case. While never criminally convicted, Ms. Zasulich had spent most of her young adult life imprisoned, banished, or otherwise persecuted on political grounds.(fn27) After learning that the governor of St. Petersburg had severely whipped a political prisoner for failing to doff his cap, Ms. Zasulich became determined to avenge the injustice.(fn28) She fired a single shot at close range, wounding the governor.(fn29) In 1878, on undisputed facts, Ms. Zasulich stood trial for attempted murder. Although the 1864 Reforms did not provide Ms. Zasulich the right to trial by jury because it was a political crime, the prosecutor chose a jury trial for political reasons, which included the desire to make a public example of this revolutionary.(fn30) Ms. Zasulich's defense counsel devoted considerable argument to his client's past persecution and the state's repressive treatment of political criminals.(fn31) The jury, with substantial public support, acquitted Vera Zasulich.(fn32)
A tremendous backlash followed. Opponents of the jury system-including the relentless conservative press-saw their deepest fears realized through this expression of resentment toward the state.(fn33) Within months, additional classes of so-called political offenses were removed from the jurisdiction of the jury.(fn34) Thereafter, no politically motivated crimes were tried before a jury, but rather were tried before courts-martial or courts with class representatives.(fn35) The March 1, 1881 assassination of Tsar Alexander II by anti-tsarist domestic terrorists further fueled the backlash against his own democratic judicial institutions, which sought to elevate the rights of individuals over the interests of the state. Thereafter, Tsar Alexander II's son, Tsar Alexander III, cemented alternative law enforcement and judicial procedures to combat political unrest in the Law of August 14, 1881, entitied "Measures for the Preservation of State Order and Public Tranquility."(fn36)
The Law of August 14, 1881 granted local provincial executives...
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