When I first chose the topic of jury composition, I recognized that it was important in the overall scheme of the justice system. However, as I continued throught the project, I began to realize the exact significance of it, and how the racial composition of a jury can affect the outcome of a trial. All jurors have differing life experiences which help guide them in their deliberations - this is a simple fact. However, I was oblivious to the obvious. I was so certain that because jurors had different life experiences, we could expect them to deliberate fairly and equally. This is not always the case though.
The reason why having a racially diverse jury makes a difference only became clear to me after researching this project. People of different races and socioeconomic backgrounds have different interpretations of the law, and how it should be applied. This in itself was a huge revelation to me. I had never considered the possibility that justice was considered entirely different between races. To me, justice was a clear cut issue which struck down racial lines, and was something everyone could agree upon. Rather, blacks are in general more leery of the police and prosecutors, expecting more evidence than simply police testimony. Whites on the other hand are more likely to convict, and are more naive to prosecutorial techniques. If the two are combined, they will more likely disagree with one another - thus encouraging debate, and more in-depth deliberation, which ultimately leads to a fairer trial.
For me, this project was an unveiling of sorts. I took off the rose colored glasses I had worn, dating back to my upbrining in rural North Carolina. I no longer see the prosecution as a force of good and justice, but rather a conviction machine. This is not to say that they should be entirely distrusted - both prosecutors and criminal defense attorneys can misrepresent the truth - but instead we should always be questioning, and never take anything as direct truth without first analyzing it thoroughly.
Friday, November 9, 2007
Monday, November 5, 2007
Presumption of Innocence--Self Analysis
When I began researching and blogging on the topic of presumption of innocence, I assumed that, though it was often disregarded, most would take the position of innocent until proven guilty (beyond a reasonable doubt). Although this position seems like it would not be difficult to take, it is very difficult to ensure that jurors or judges even presume innocence. To begin with, there is no way to test the jurors before they begin jury duty for inherent biases. Yes, many biases will come out during the interviews etc. of voir dire: the process through which attorneys decide if the jurors will judge fairly. However, many biases relevant to the case at hand will go unnoticed. Regardless of the steps taken to prevent jury bias, people within the jury will hold biases; all people are subject to profiling, holding preconceived notions and judging on a personal level. In the experiment of Tajfel, it is shown that people will, if given the chance to reward someone within their own group or another group, however meaningless the reason for grouping is, they will reward those in their own group. This can be interpreted to show that those who people identify with are more likely to be rewarded or favored by them in the case of courts. This is one of the many inherent ways in which members of a jury will be biased. There are many works dedicated to using juror bias to one’s advantage, even citing ideas which date back to Aristotle. Circumventing jury bias should not be expected in the courtroom, I have come to realize.
I have also come to realize that there aren’t any final solutions to the problem of jury bias and the presumption of guilt. The best measure which can be taken, in my opinion, is setting up officials to oversee and judge the jury on the way they make their decisions. However, with these steps, only the blatantly obvious biases will be exposed, such as the jurors judging the West Memphis Three. where there is no way guilt was proven beyond a reasonable doubt, and other biases will find their ways into the courtroom.
In reality, jury bias exists, regardless of court rules. This is part of the contract jurors have to sign in
Yet, grossly unfair cases, such as that of Earl Washington, have taken place. Within our great country, greater measures, such as the regular establishment of a jury to judge the jury, are necessary if we are to adhere to the court regulations in place; otherwise, biased juries will continue to botch cases.
Self Analysis: Use of Trial Juries
When I initially began blogging about the use of trial juries I was really looking for reasons why juries can't be trusted with such decisions. I did find plenty but most of them weren't back up by research and for the ones that were, that research was outdated. And then I stumbled across a statistic that marked a turning point in my thinking: During a research study conducted by Kalven and Keisel, in only 22% of cases studied would the presiding judge have decided a differing verdict based on the evidence.
Right about then was when I realized that my real problem was rather or not I trusted what I'm sure a portion of that statistic rested upon - the power of the jury to nullify or judge the law or how it was applied as well as the evidence presented in a case. This thought guided my analysis post in which I explored the history and application of the jury veto in the justice system.
Perhaps because I only truly narrowed down on a real topic for the past post, I still feel undecided on whether or not it is truly best for juries, rather than individuals educated on the law, to reach verdicts in criminal or civil cases. I found many instances in which juries appeared to rule for reasons which I'd disapprove - such as on instinct in the Robin Hood Hills case, or out of distrust of a racist cop as in the OJ Simpson trial. But the idea of an ultimate veto power over any legislation by government within the jury room is very alluring.
Many problems, supported by research, remain in the system. For many reasons, mostly relatively innocent ones, juries continue to lack true diversity in their numbers. Jury decisions tend to be reached through deliberations conducted mostly by the few rather than by equal contribution from every member. And jury instructions seem to be insufficient to really help jurors understand the law in every case. If the jury system to be saved, it certainly needs some more reform - such as updating voter registration lists more often than every four years, financial assistance in exchange for jury duty for those jurors that might otherwise apply to be excused, more detailed and comprehensive jury instructions that at least attempt to refute common misconceptions, and more than a passing consideration for using special verdicts at least in all criminal cases rather than a simple "guilty or not guilty." Requiring an explanation for the verdict is the only way to ensure that jurors take responsibility for their decision.
Right about then was when I realized that my real problem was rather or not I trusted what I'm sure a portion of that statistic rested upon - the power of the jury to nullify or judge the law or how it was applied as well as the evidence presented in a case. This thought guided my analysis post in which I explored the history and application of the jury veto in the justice system.
Perhaps because I only truly narrowed down on a real topic for the past post, I still feel undecided on whether or not it is truly best for juries, rather than individuals educated on the law, to reach verdicts in criminal or civil cases. I found many instances in which juries appeared to rule for reasons which I'd disapprove - such as on instinct in the Robin Hood Hills case, or out of distrust of a racist cop as in the OJ Simpson trial. But the idea of an ultimate veto power over any legislation by government within the jury room is very alluring.
Many problems, supported by research, remain in the system. For many reasons, mostly relatively innocent ones, juries continue to lack true diversity in their numbers. Jury decisions tend to be reached through deliberations conducted mostly by the few rather than by equal contribution from every member. And jury instructions seem to be insufficient to really help jurors understand the law in every case. If the jury system to be saved, it certainly needs some more reform - such as updating voter registration lists more often than every four years, financial assistance in exchange for jury duty for those jurors that might otherwise apply to be excused, more detailed and comprehensive jury instructions that at least attempt to refute common misconceptions, and more than a passing consideration for using special verdicts at least in all criminal cases rather than a simple "guilty or not guilty." Requiring an explanation for the verdict is the only way to ensure that jurors take responsibility for their decision.
Increasing Research on Cases involving the Mentally Retarded
Before investigating the flaws of the American justice system, I was rather clueless on the issue. Sure I was aware that such cases as Atkins v. VA and Roper v. Simmons had outlawed the execution of the mentally ill and juveniles, but I was not aware of the ways in which the sentencing of capital punishment is determined and the ways in which it is applied arbitrarily. I also found new, interesting evidence of cases where before the death penalty was outlawed for the mentally retarded, the mentally disabled were given unfair trials that made them vulnerable to falsely confessing to crimes due to misrepresentation by their lawyers. In the case of Mario Marquez, who was executed in Texas in 1995 with an IQ of 65, his lawyer did not present the state of his mental retardation; therefore, the counsel found him guilty.
In my theory post, I investigated the arbitrary application of the death penalty in terms of the Eighth Amendment, as well as factors such as race, geography, representation, and gender. Due to this variance in procedure, I proposed a uniform system that applied to all citizens equally. Now, after my research, I realize that it would be difficult to develop a system that pleased and appropriately-fit all parties involved. For my implications post, I believed the future consequences of continuing to practice such inconsistency in capital punishment would lead to the unfair deaths of many more people, as well as a never-ending debate on the issue of capital punishment. I feared that the United States’ usage would prevent other countries, such as those involved in the European Union, from allying with the U.S. The fact that the United States, a country who others turn to for guidance, continues to practice an inhumane form of punishment scared me, due to the fact that other counties may try to model themselves according to our disciplines; therefore, broadening the use of capital punishment. Through my research, however, I realized that because the United States is a leading country, countries will continue to support us despite our usage of capital punishment.
As I researched further and began my analysis posting, I found that the Atkins v. VA case left the execution of the mentally retarded in the hands of each individual state. Each state has its own qualifications to determine as to what constitutes being mentally retarded, which includes setting a consistent IQ score. Because of this, the interpretation varies from state which leaves mentally disabled more at risk of being executed in some states than others. I also researched and found that there are many opposing views on whether or not mental retardation should be determined pre-trial of post-trial. Before conducting this investigation, I had no idea that such a multitude of factors were involved with determining mental capacity, which ultimately dictates whether or not one receives the death penalty. At the beginning of my exposition, I believed the total abolition of the death penalty was the best policy because it varies differently based on such factors as race, gender, and geography. After progressing in my research, I definitely still agree that execution of the mentally retarded and juveniles violates the cruel and unusual punishment principle in the Eighth Amendment. Additionally, I think that if the Eighth Amendment applies to certain factions of American citizens, it should apply to all. I am also still steadfast in my belief that capital punishment needs to be abolished. I do not think it is fair that such variance among states should determine whether or not one lives or dies. After researching, however, I have come to understand both sides of the death penalty argument more equally, and I realize that both sides of the debate are well-supported. After becoming more knowledgeable about the issue, it seems that in cases which involve the mentally retarded, pre-trial determination is only fitting because it provides a less-trying trial on those who are personally involved in the case.
As a result of this project, I feel that I have become better informed on the issue of capital punishment and can now argue my previous view from a much stronger background due to sufficient amount of evidence I have encountered. I do not think I would qualify myself as an expert on the topic concerning the way in which our justice system deals with the mentally retarded, but I think I definitely have the authority to take a well-educated stance on the issue. I feel as if this project has caused me to grow as a thinker in the ways that it forced me to take an unbiased position and examine all sides of the situation. As I progressed in the project and began to gather more research, I found that it was easier to narrow down my focus of the topic. This project has taught me many new aspects of the art of argumentation. When participating in debate, I found that you need to be open-minded to the opinions of others as well as being well-researched on your own beliefs. Not only did I learn about arguing through my postings, but I also gained knowledge through my responses to the posts of others. I found that it was useful to others and to me to ask questions as I posted to help clarify my thoughts and present my point of view. By examining the flaws in the justice system, it made me realize that while America may be founded on the principles of equality and democracy, no institution is perfect.
The Analysis: Jury Nullification
The loss of control in a society of so many is truly a frightening prospect - more so perhaps than the prospect of allowing an ordered government, even if corrupt or unfair - enough power to provide order. And such is why as a society we acquiesce to a higher authority in order to provide a source of security to our lives. At times I believe that we take this for granted so much, in a constant tug of war with government for more power as an individual, that we tear a hole in it which could be dangerous. Could the individual manage to make enough of a rift in this structure of justice and law to threaten the order we have arranged for ourselves so carefully in a system of checks and balances?
The practice of jury nullification, or jury veto, the acquittal or conviction of a defendant by a jury as a form of protest, has the potential to be one of these rifts.
The idea was utilized as early as 1734 when a printer named John Zenger was arrested for libel for dragging the name of the English government through the mud within his published articles. At the time, publication was illegal unless regulated by the government. Zenger admitted to the facts but argued that since the things he'd printed about the English government were true, no libel had been committed. Despite the fact that Zenger had admitted to his guilt and that the judge instructed the jury that all they must do is convict based on the law in place and facts on the case, the jury acquitted Zenger of the charges in ten minutes. It was undoubtedly a statement demanding freedom of the press.
There are other "good" applications of jury nullification as well - like the refusal of juries in the North during the civil war to convict slaves for escaping. And this view of jury veto seems to be the one that is prevalent - that a jury of one's peers is better able to judge you and the law you are held to than big, bad government. However, there are also examples in which jury nullification was likely accountable for the neglect of predominately white juries to convict white defendants of lynching. And there are more modern undercurrents of black jury members refusing to convict black defendants for dealing drugs because they were poor or "as a protest of racism in the justice system."
The former was suspected by a judge in a drug case who dismissed the juror, following a complaint from other jury members, which lead to a conviction. The call was later overturned by the 2nd Circuit Court of Appeals who felt obligated to do so because the juror insisted he had simply been unconvinced by the evidence.
The same decision however, contained sharp criticism of this form of protest and upheld the right of a judge to dismiss any juror if they can be positive that the juror does in fact intend to nullify irregardless of the evidence presented in the case. In the words of Judge Cabranes: "Jury nullification is a violation of a juror's sworn duty to follow the law as instructed by the court."
The decision, reached in the late 1990s, was most likely in response to a cloud of controversy during that time surrounding the issue. Several prominent individuals, including a George Washington University Law professor named Butler, publicly encouraged the acquittal of black defendants for nonviolent crimes as a protest against a justice system permeated by racism.
There is no disputing that the practice of jury veto has been used for relative good, relative evil, and the virtually-morally-unexplored (such as assisted suicide or the use of an insanity defense for postpartum murders). What I was left to wonder is this: If a jury was not an entity with the right to judge the law, the application of the law, AND the facts of the case, then why have a jury at all? The same duty, that of analyzing the facts of a case and scrutinizing the evidence presented, could be undertaken just as well, if not better, by a judge or a panel of attorneys. Perhaps the 2nd Circuit simply found it best that the jury veto remain an unadvertised right.
However, on my other shoulder is another question: If a jury of individuals were fully aware of the power, if not the right, to mold, bend, or ignore the laws as they are so carefully laid out in the interest of protecting the order of our society and instead chooses to convict or acquit based on normative rules of behavior - How could we expect any consistency in our justice system? Does this truly portray the ideal of the "impartial" jury?
Several experts are certainly clear on their take of the issue. An English law professor, Sir Robin Auld , declared: "It is a blatant affront to...the criminal justice system - the control of crime - of which they are so important a part." Roscoe Pound, another law professor, on the other hand believes that "jury lawlessness is the great corrective of law in its actual administration." And right smack dab in the middle you have the pragmatists like Thom Brooks who reasons that "juries do not have a constitutional right to ignore the law, but they have the power to do so nonetheless."
The root of the power that Brooks refers to comes from the right of the jury decided in the famous Bushell's case to return a verdict without justification (this is called a general verdict). Opponents of jury nullification have suggested that special verdicts, verdicts returned complete with reasons for the decision, be instated in criminal cases.
Some more intriguing resources:
FoxNews: An example of "bad" jury nullification in a tort case: the article is presented for information on facts of the case. Notice how much the jury awards the plaintiffs compared to the net worth of the defendants. According to a study published by the Buffalo Law Journal, jurors award 20% more on average than a judge would in civil cases.
State of New York: Index of Jury Instructions given for different types of cases
National Jury Project: "Jury Consultants" business website. It's a bit surprising that it's allowable for businesses like these to be hired to assist attorneys in making their voir dire decisions (Voir Dire are questions asked of the jury in an attempt to ascertain if they would be more or less likely to be on the side of the attorney asking. Each attorney can eliminate one juror for any reason other than gender or race in what is called a peremptory challenge.
Law and the Parameters of Acceptable Deviance: I really encourage everyone to take a quick look at this Criminal Law Journal article by Mark Edwards published last year on PADs (Parameters of Acceptable Deviance). I referred to it before as a normative application of the law or application based on popular sentiment about what is acceptable rather than whether behavior is technically illegal or not. He talks about what behaviors jurors and others will find acceptable though they are illegal (and thus acquit) as well as behaviors found to be unacceptable (that may lead to a conviction despite a defendant not technically being guilty). An example of this, as he notes, would be a defendant accused of gang activity and a conviction because the jury notices he has tattoos sporting gang insignia...or perhaps because he listens to a certain type of music or dresses a certain way.
The practice of jury nullification, or jury veto, the acquittal or conviction of a defendant by a jury as a form of protest, has the potential to be one of these rifts.
The idea was utilized as early as 1734 when a printer named John Zenger was arrested for libel for dragging the name of the English government through the mud within his published articles. At the time, publication was illegal unless regulated by the government. Zenger admitted to the facts but argued that since the things he'd printed about the English government were true, no libel had been committed. Despite the fact that Zenger had admitted to his guilt and that the judge instructed the jury that all they must do is convict based on the law in place and facts on the case, the jury acquitted Zenger of the charges in ten minutes. It was undoubtedly a statement demanding freedom of the press.
There are other "good" applications of jury nullification as well - like the refusal of juries in the North during the civil war to convict slaves for escaping. And this view of jury veto seems to be the one that is prevalent - that a jury of one's peers is better able to judge you and the law you are held to than big, bad government. However, there are also examples in which jury nullification was likely accountable for the neglect of predominately white juries to convict white defendants of lynching. And there are more modern undercurrents of black jury members refusing to convict black defendants for dealing drugs because they were poor or "as a protest of racism in the justice system."
The former was suspected by a judge in a drug case who dismissed the juror, following a complaint from other jury members, which lead to a conviction. The call was later overturned by the 2nd Circuit Court of Appeals who felt obligated to do so because the juror insisted he had simply been unconvinced by the evidence.
The same decision however, contained sharp criticism of this form of protest and upheld the right of a judge to dismiss any juror if they can be positive that the juror does in fact intend to nullify irregardless of the evidence presented in the case. In the words of Judge Cabranes: "Jury nullification is a violation of a juror's sworn duty to follow the law as instructed by the court."
The decision, reached in the late 1990s, was most likely in response to a cloud of controversy during that time surrounding the issue. Several prominent individuals, including a George Washington University Law professor named Butler, publicly encouraged the acquittal of black defendants for nonviolent crimes as a protest against a justice system permeated by racism.
There is no disputing that the practice of jury veto has been used for relative good, relative evil, and the virtually-morally-unexplored (such as assisted suicide or the use of an insanity defense for postpartum murders). What I was left to wonder is this: If a jury was not an entity with the right to judge the law, the application of the law, AND the facts of the case, then why have a jury at all? The same duty, that of analyzing the facts of a case and scrutinizing the evidence presented, could be undertaken just as well, if not better, by a judge or a panel of attorneys. Perhaps the 2nd Circuit simply found it best that the jury veto remain an unadvertised right.
However, on my other shoulder is another question: If a jury of individuals were fully aware of the power, if not the right, to mold, bend, or ignore the laws as they are so carefully laid out in the interest of protecting the order of our society and instead chooses to convict or acquit based on normative rules of behavior - How could we expect any consistency in our justice system? Does this truly portray the ideal of the "impartial" jury?
Several experts are certainly clear on their take of the issue. An English law professor, Sir Robin Auld , declared: "It is a blatant affront to...the criminal justice system - the control of crime - of which they are so important a part." Roscoe Pound, another law professor, on the other hand believes that "jury lawlessness is the great corrective of law in its actual administration." And right smack dab in the middle you have the pragmatists like Thom Brooks who reasons that "juries do not have a constitutional right to ignore the law, but they have the power to do so nonetheless."
The root of the power that Brooks refers to comes from the right of the jury decided in the famous Bushell's case to return a verdict without justification (this is called a general verdict). Opponents of jury nullification have suggested that special verdicts, verdicts returned complete with reasons for the decision, be instated in criminal cases.
Some more intriguing resources:
FoxNews: An example of "bad" jury nullification in a tort case: the article is presented for information on facts of the case. Notice how much the jury awards the plaintiffs compared to the net worth of the defendants. According to a study published by the Buffalo Law Journal, jurors award 20% more on average than a judge would in civil cases.
State of New York: Index of Jury Instructions given for different types of cases
National Jury Project: "Jury Consultants" business website. It's a bit surprising that it's allowable for businesses like these to be hired to assist attorneys in making their voir dire decisions (Voir Dire are questions asked of the jury in an attempt to ascertain if they would be more or less likely to be on the side of the attorney asking. Each attorney can eliminate one juror for any reason other than gender or race in what is called a peremptory challenge.
Law and the Parameters of Acceptable Deviance: I really encourage everyone to take a quick look at this Criminal Law Journal article by Mark Edwards published last year on PADs (Parameters of Acceptable Deviance). I referred to it before as a normative application of the law or application based on popular sentiment about what is acceptable rather than whether behavior is technically illegal or not. He talks about what behaviors jurors and others will find acceptable though they are illegal (and thus acquit) as well as behaviors found to be unacceptable (that may lead to a conviction despite a defendant not technically being guilty). An example of this, as he notes, would be a defendant accused of gang activity and a conviction because the jury notices he has tattoos sporting gang insignia...or perhaps because he listens to a certain type of music or dresses a certain way.
Sunday, November 4, 2007
Self-Analysis
Initially, as I began writing this blog, I was definitely against the death penalty. As I continued to research the US judicial system in dealing with the methods employed for the death penalty, my opinion slightly changed as I read about both sides of the issue. I still am against the death penalty, but I feel like it is an essential part of our justice system. I feel like harsh crimes deserve harsh punishments; however, we must also keep in mind the rights of the defendants. As a result, we must do whatever we can in order to make it as humane as possible. In my theory post, I proposed that lethal injection was by far the most humane method employed for the administration of capital punishment. The methods used in the execution of criminals have evloved over the years as people have become more aware of the rights of the defendants as well as those of the victims. The court has reviewed the humanenes of the death penalty in court cases such as Atkins vs. Virginia. At one point, the death penalty was altogether outlawed, but years later it was reinstated as part of our judicial system. Lethal injection is the most widespread method used in the United States today. This issue involves many other correlated elements. The fact that the death penalty itself receives so much opposition makes it difficult to consider whether or not the methods employed in executions are humane.
In researching for this blog, I learned a lot about the death penalty and the ways in which it is administered. This assignment, as opposed to a paper, involved more interaction with other people. I was able to learn a lot about other topics as I responded to other people’s blog posts. I was able, through this blog assignment, to be more openminded in accepting other people comments on my point of view even if they contradicted my personal beliefs. I learned that the actions of the US judicial system, though they might not have an immediate impact on my life at this stage, will impact me as an adult living in this country.
In researching for this blog, I learned a lot about the death penalty and the ways in which it is administered. This assignment, as opposed to a paper, involved more interaction with other people. I was able to learn a lot about other topics as I responded to other people’s blog posts. I was able, through this blog assignment, to be more openminded in accepting other people comments on my point of view even if they contradicted my personal beliefs. I learned that the actions of the US judicial system, though they might not have an immediate impact on my life at this stage, will impact me as an adult living in this country.
Friday, November 2, 2007
Analysis of Jury Composition
As I began my blog on jury composition I approached it with a modernistic viewpoint. I considered jury composition to be a worry of the past - something that history had corrected over time. I was completely unaware that it was a problem which still lingered on today. Despite many advances in our country for minority rights, the rights of minorities still have yet to be secured in one of the most important parts of our government - the judiciary.
Entering into this project I considered jury composition to be a matter concerning just minorities. I was completely unaware how the issue could also affect caucasians as well. In the O.J. Simpson case there was an entirely disproportionate number of black jurors in comparsion to white jurors. Although this was perhaps a rarity, it is nonetheless proof that we must keep in mind the rights of all citizens as we continue to push towards equality in the justice system. When me make efforts to help the traditionally disenfrancised, we must make certain that we do not overcompensate. Although that point is far from being reached, it is an important thing to keep in mind nontheless.
For the topic of jury composition, a solution is required. We are promised a "jury of our peers", yet for many, this is a promise unfulfilled by the government. Of course, it can be debated, what is a jury of our peers? Is it simply a jury proportionate to the nationwide racial distribution? Or, rather, is it proportionate to the composition of the locale in which the trial is taking place? Perhaps the traditional answer would have been the latter. However, the former appears to be the most likely to ensure a diverse jury capable of better interpreting the truth; a fact which was demonstrated in the cases Emmet Till and OJ Simpson.
Why would a jury based on national racial composition be more effective than one based on local composition? Simply put, a jury reflective of nation wide statistics is guaranteed to be diverse, however the diversity of specific locations can vary greatly. For example, the city of Detroit is 81.6% black, whereas Seattle is only 8.4% black. Local values can be dramatically different from those held nationwide, as they are subjective to the experiences of an unexposed people. One should be able to receive an equal trial regardless of where the crime was committed, and jury composition plays a pivotal role in achieving equality.
The composition of our juries is a large flas in our justice system. However, it is far from an uncorrectable - in fact, there are many small changes which can eliminate the problem. One such example is in Indiana, where the jury pool has been expanded by simply comparing lists of drivers and taxpayers. Equally, a similar reform has passed in Pennsylvania, in which those on lists for welfare and food stamps are considered as well. This reform is particularly important, because minority status and socioeconomic status are often linked, thus increasing the potential number of minority jurors.
The aforementioned reforms, although small, can make a huge difference in the racial composition our juries. It makes logical sense that if more minorities are summoned for jury duty that the actual number who serve will be greater. However, simply summoning more minorities can still leave holes. There is still the peremptory challenge, which can still be used to weed out potential jurors. But, with a greater number of potential minority jurors, it becomes increasingly difficult for prosecutors to remove all of them. Nonetheless, the peremptory challenge still needs to be modified. The mere concept of being able to dismiss a person, potentially on race, alienates the equal protection clause in our constitution, and is therefore violating some of the most basic rights given to us. If minorities are unable to represent themselves in all facets of our government, their voice is not heard, and they will continue to be oppressed.
Ending oppression, specifically in our court system, is a goal which may be statistically impossible to achieve, despite reforms. In some cases, the best we can do is hope to do is simply hope to improve upon the current situation. For example, consider a small town in which the number of whites far exceeds minorities. Even if new lists statistically increase the probability of minority jurors being summoned, a highly disproportionate population (say 50:1) could still be statistically impossible to overcome. As well, it would be impractical in these situations to enforce a quota for juries, because with a limited number to choose from, people would have to serve on juries many times over to ensure equality. This would most likely lead to unhappy jurors (and everyone knows happy people make better decisions) and inevitably work against fairness. Unfortunately, no amount of reform for representation can make the cities and towns from which jurors are chosen more diverse. The only conceivable ways to handle such cases would be to have them moved to a different locale, or to have jurors picked from other locations - both of which would retard the legal process and violate the concept of a "jury of peers".
Although the importance of diverse juries seems clear, there are still instances where nothing is being done to correct it. In fact, exactly the opposite is taking place in Michigan, where the state Supreme Court adopted a rule discouraging the pursuit of diverse juries through aggressive or imaginative approaches. If there is no reform in how our juries are selected, there will continue to be travesties like the O.J. Simpson trial. After so many years of allowing inequality, haven't the court systems learned from their mistakes? One can only hope that the progressive reforms passed in Indiana and Pennsylvania infect the rest of the country as well, for the sake of fairness.
Entering into this project I considered jury composition to be a matter concerning just minorities. I was completely unaware how the issue could also affect caucasians as well. In the O.J. Simpson case there was an entirely disproportionate number of black jurors in comparsion to white jurors. Although this was perhaps a rarity, it is nonetheless proof that we must keep in mind the rights of all citizens as we continue to push towards equality in the justice system. When me make efforts to help the traditionally disenfrancised, we must make certain that we do not overcompensate. Although that point is far from being reached, it is an important thing to keep in mind nontheless.
For the topic of jury composition, a solution is required. We are promised a "jury of our peers", yet for many, this is a promise unfulfilled by the government. Of course, it can be debated, what is a jury of our peers? Is it simply a jury proportionate to the nationwide racial distribution? Or, rather, is it proportionate to the composition of the locale in which the trial is taking place? Perhaps the traditional answer would have been the latter. However, the former appears to be the most likely to ensure a diverse jury capable of better interpreting the truth; a fact which was demonstrated in the cases Emmet Till and OJ Simpson.
Why would a jury based on national racial composition be more effective than one based on local composition? Simply put, a jury reflective of nation wide statistics is guaranteed to be diverse, however the diversity of specific locations can vary greatly. For example, the city of Detroit is 81.6% black, whereas Seattle is only 8.4% black. Local values can be dramatically different from those held nationwide, as they are subjective to the experiences of an unexposed people. One should be able to receive an equal trial regardless of where the crime was committed, and jury composition plays a pivotal role in achieving equality.
The composition of our juries is a large flas in our justice system. However, it is far from an uncorrectable - in fact, there are many small changes which can eliminate the problem. One such example is in Indiana, where the jury pool has been expanded by simply comparing lists of drivers and taxpayers. Equally, a similar reform has passed in Pennsylvania, in which those on lists for welfare and food stamps are considered as well. This reform is particularly important, because minority status and socioeconomic status are often linked, thus increasing the potential number of minority jurors.
The aforementioned reforms, although small, can make a huge difference in the racial composition our juries. It makes logical sense that if more minorities are summoned for jury duty that the actual number who serve will be greater. However, simply summoning more minorities can still leave holes. There is still the peremptory challenge, which can still be used to weed out potential jurors. But, with a greater number of potential minority jurors, it becomes increasingly difficult for prosecutors to remove all of them. Nonetheless, the peremptory challenge still needs to be modified. The mere concept of being able to dismiss a person, potentially on race, alienates the equal protection clause in our constitution, and is therefore violating some of the most basic rights given to us. If minorities are unable to represent themselves in all facets of our government, their voice is not heard, and they will continue to be oppressed.
Ending oppression, specifically in our court system, is a goal which may be statistically impossible to achieve, despite reforms. In some cases, the best we can do is hope to do is simply hope to improve upon the current situation. For example, consider a small town in which the number of whites far exceeds minorities. Even if new lists statistically increase the probability of minority jurors being summoned, a highly disproportionate population (say 50:1) could still be statistically impossible to overcome. As well, it would be impractical in these situations to enforce a quota for juries, because with a limited number to choose from, people would have to serve on juries many times over to ensure equality. This would most likely lead to unhappy jurors (and everyone knows happy people make better decisions) and inevitably work against fairness. Unfortunately, no amount of reform for representation can make the cities and towns from which jurors are chosen more diverse. The only conceivable ways to handle such cases would be to have them moved to a different locale, or to have jurors picked from other locations - both of which would retard the legal process and violate the concept of a "jury of peers".
Although the importance of diverse juries seems clear, there are still instances where nothing is being done to correct it. In fact, exactly the opposite is taking place in Michigan, where the state Supreme Court adopted a rule discouraging the pursuit of diverse juries through aggressive or imaginative approaches. If there is no reform in how our juries are selected, there will continue to be travesties like the O.J. Simpson trial. After so many years of allowing inequality, haven't the court systems learned from their mistakes? One can only hope that the progressive reforms passed in Indiana and Pennsylvania infect the rest of the country as well, for the sake of fairness.
Presumption of Innocence: Impossible
There is no way to guarantee that jurors hold an unbiased approach to the trial at hand. While sitting upon the jury box, one is prone to applying their own morals and ethics to the case, and in doing so, they judge not according to the rules of law but to their own rules. This is discussed in greater depth in regards to tort reform in The Power of the Value-Driven Bias. In these cases, which are often civil, the jury is forced to decide whether a wrongful act which did not break any contract entitles the prosecutor to some sort of compensation. For instance, the bride from
Even the slightest presupposed judgment by jurors, which is often created after seeing and profiling a person (or defendant), leads to large problems. Confirmation Bias happens after one makes an assumption; it is looking at evidence only in the way which fits your assumption and disregarding other evidence. In the case of the Robin Hood Woods murders, the jurors and judge obviously hold a confirmation bias because bite marks on the victims did not match any of the defendant’s own dental impression. Juror selection, the goal seemingly to select unbiased jurors, even goes so far as to use bias in their favor. Just look at Consultant Hirschhorn’s comment:
"If there's somebody I'm on the fence about and I think a couple of the other jurors will bond with and bring that person along, I'll keep him on…I look for whether it's an intellectual relationship, whether they have common interests, common goals, common life experiences."
It is impossible to guarantee a jury without bias—pyschologists say that evidence agrees. Impartiality needs to be examined by officials outside of the juror box do determine whether the case has evoked too much personal bias and is therefore unlawful.
Trials of the Mentally Retarded
The ways in which the justice system of the United States handles issues concerning the mentally ill deserve closer examination. Before the precedent set in Atkins v. Virginia case in 2002, the mentally retarded were subject to capital punishment. This procedure was often applied unfairly due to such factors as the mentally ill falsely confessing to crimes, and their little capability to aid their counsel in providing significant assistance. The process for determining the qualifications of being deemed “mentally retarded”, however, is controversial. One result of the Atkins v. VA case is that state and local courts are now responsible for implementing the banning of the mentally retarded; therefore, they must determine what constitutes one as mentally handicapped, another debatable issue. People also argue whether or not mental retardation should be determined before or after a trial, which also initiates argument.
The American Association on Mental Retardation describes the disability as “characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” The disability must originate before the age of 18 . According to the AAMR, this determinant, as well as scoring below 70 on an IQ test and having problems abiding in the everyday world are required for one to be considered mentally retarded. Due to the Atkins v. VA case, the courts now entrust the states to define their own interpretations of what is considered having a mental disability. This new provision leads to debate due to the variance in standards among states. In California, courts chose not to adopt the IQ score of 70 as being the clear decisive factor on mental retardation, where other states have set a definite number for interpretation. Many deem this method of setting a limit as too restrictive. In Idaho, one can not be considered mentally retarded if they exhibit an IQ of 71, one point above the limiting factor, even if they exhibit all other characteristics of mental disability. This instance brings about the issue where one could be considered mentally disable in one state; therefore, being spared from capital punishment. In another state, however, the interpretation could be applied oppositely, which could result in death. The United States needs to realize that through these varied ways of capital punishment application, many peoples' lives are more at stake in some states than others, which is not fair. This issue leads to further debate over which test is best suited to assess IQ. In the Vidal case in 2004, the courts ruled that the FSIQ test is the most suitable. Opponents of capital punishment believe that because there is no standard for accessing whether or not one is mentally handicapped, this method is arbitrary, and instigates debate. Advocates of the death penalty, however, argue that because Atkins. V. VA invested the interpretation of mental retardation into the power of the state and local courts, they hold the right to create policies of which seem fitting to their individual needs.
More debate arises in terms of mental retardation and execution once states decide on the process of determining whether or not one is mentally disable. Those who represent the mentally retarded advocate for this interpretation to be decided by an unbiased jury or judge before the trial takes place . Prosecutors in states that use the death penalty heavily, such as Virginia and Louisiana, favor determinacy to be conducted by those who found the defendant originally guilty of murder after the trial. Most states, however, employ pre-trial determination because it is less costly and less trying on family members due to the fact that prosecution for the death penalty does not have to occur. If a decision on mental retardation is made before the trial, it dismisses the possibility of the defendant being wrongfully convicted as a result of false confessions. People who support post-trial determination believe that a jury does not possess the certain level of expertise that can be gained through the procession of the trial. Usually, one’s stance on the pre-trial/post-trial issue derives from political position. Those who are in favor of the death penalty most commonly support post-trial determination, and those opposed prefer for mental retardation to be assessed before the trial begins.
The power of the state and local courts to be able to establish their own standards for determining mental retardation shows the way in which enforcement of the death penalty is beginning to decline. This establishment is arbitrary along with such factors of race, age, and demographics because it varies between states. The application of capital punishment is fluctuating due to the interpretation of the Eighth Amendment and to which cases it applies. Because the Eighth Amendment has already served to outlaw capital punishment in terms of juveniles and the mentally retarded, it brings up the issue of applying the amendment to all facets of consideration. Should Florida’s use of lethal injection in execution be deemed cruel and unusual punishment, and ultimately unconstitutional, under the Eighth Amendment? A correlation exists between those who see the death penalty as arbitrary and those who favor pre-trial determination, where these people tend to be opponents of capital punishment. One can note the same trend between those who believe individual states should be able to decide upon a policy that is appropriate to their needs and those who believe post-trial determination of mental retardation is most efficient, who usually are advocates of capital punishment. If such variation in administering the death penalty continues, states will continue to execute offenders on an unequal basis.
Thursday, November 1, 2007
Jury Composition - The Implications
The racial make-up of juries is crucial to the maintenance of justice in our country. Jury composition has wide scale implications in the convictions of the accused. Up to this point I have discussed jury composition in regards to all-white juries only, however it is important that juries are equal in all regards. For instance, in the O.J. Simpson trial the jury was composed of 9 blacks, 2 whites, and one hispanic. 10 of the jurors were women. Although it is impossible to say to what extent the composition of jury had on the outcome of the trial, it would be illogical to dismiss it.
In the case of Orenthall James Simpson, the composition of his jury was such that he most likely benefitted from the jury. For others, this is not the case. Tyrone Peter Darks was convicted in the State of Oklahoma by an all-white jury notwithstanding a lack of evidence and sentenced to receive the death penalty. The implications of jury composition plays a critical part in the probability of a successful conviction. In the same light, it can also be to the defense's advantage to manipulate the jury in its favor as well, creating all-white juries, as is the case in an Alabama trial against two Klu Klux Klan members.
In 1955, Emmett Till was brutally murdered by Roy Bryant and his half brother, J.W. Milam for whistling at a white girl. Considering this to be unacceptable behavior, Bryant and Milam kidnapped Till and beat him to death. His body was later found in a stream. An all-white jury acquitted Bryant and his brother in just 67 minutes of deliberation - the 67 minutes was simply to "make it look good". Bryant and Milam later bragged about committing the murder, but because of double jeopardy, they couldn't be tried for the crime again. The racist all-white jury allowed two blatantly guilty men to get away with brutally beating up a 14 year old boy. But as significant as this is (and a huge implication of jury composition in itself), the civil rights movement which was spawned as a result of this (and thus indirectly jury composition) was epic.
The implications of the jury composition were great enough to encourage a Civil Rights movement, in the face of a horrible tragedy. But a movement of that magnitude should not be required to attain justice. The justice system should inherently be efficient without the protesting of thousands of people. There needs to be a standard in our juries - there needs to be a set number of minorities, as well as a variety of political ideologies and religious beliefs. There needs to be consensus across a diverse group of people, and until that happens, there will continue to be wrongful convictions as well as murderers roaming free
In the case of Orenthall James Simpson, the composition of his jury was such that he most likely benefitted from the jury. For others, this is not the case. Tyrone Peter Darks was convicted in the State of Oklahoma by an all-white jury notwithstanding a lack of evidence and sentenced to receive the death penalty. The implications of jury composition plays a critical part in the probability of a successful conviction. In the same light, it can also be to the defense's advantage to manipulate the jury in its favor as well, creating all-white juries, as is the case in an Alabama trial against two Klu Klux Klan members.
In 1955, Emmett Till was brutally murdered by Roy Bryant and his half brother, J.W. Milam for whistling at a white girl. Considering this to be unacceptable behavior, Bryant and Milam kidnapped Till and beat him to death. His body was later found in a stream. An all-white jury acquitted Bryant and his brother in just 67 minutes of deliberation - the 67 minutes was simply to "make it look good". Bryant and Milam later bragged about committing the murder, but because of double jeopardy, they couldn't be tried for the crime again. The racist all-white jury allowed two blatantly guilty men to get away with brutally beating up a 14 year old boy. But as significant as this is (and a huge implication of jury composition in itself), the civil rights movement which was spawned as a result of this (and thus indirectly jury composition) was epic.
The implications of the jury composition were great enough to encourage a Civil Rights movement, in the face of a horrible tragedy. But a movement of that magnitude should not be required to attain justice. The justice system should inherently be efficient without the protesting of thousands of people. There needs to be a standard in our juries - there needs to be a set number of minorities, as well as a variety of political ideologies and religious beliefs. There needs to be consensus across a diverse group of people, and until that happens, there will continue to be wrongful convictions as well as murderers roaming free
Contrasting views on methods of execution as "cruel and unsual punishemt"
The debate over the humaneness of the methods employed in the death penalty encompasses several other closely-tied issues. The big question remains: is the death penalty, itself, humane? If it is, then who is to decide which method is the most humane? As I mentioned in my previous blog post, lethal injection is the more humane than other methods of execution used in the United States today. Though we have come a long way from the brutal and publically humiliating methods of past centuries, methods such as electrocution, hangings, and gas chambers continue to be in practice today. Why? Because there will always be proponents of the death penalty who claim that “an eye for an eye” is the way to provide justice, that if a person, a criminal, has caused pain to an innocent victim, he or she deserves to be punished in the most harsh method available. This leads me to ask the question of whether killing someone because they killed someone else, provides the victims, or their families, with any consolation. I agree with Ghanhi's statement that "an eye for an eye makes the whole world go blind." I ended my last blog drawing the conclusion that death is never humane and that, no matter how we look at this issue of the methods by which a person is killed, capital punishment will always involve causing someone pain and suffering.
Proponents of the death penalty claim that all methods of execution are humane because in their view the death penalty is aimed at providing justice to the victim. In an attempt to provide justice to the victim, they easily overlook the rights of the accused. John McAdams sums up this view in declaring, “If we execute murderers and there is in fact no deterrent effect we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims.” He goes on to say that he “would much rather risk the former.” I agree with the fact that the criminal should be punished and the severity of the punishment, or the severity of the method of execution, should fit the crime that has been committed. However, I don’t think we should overlook the fact that the defendant, too, is guaranteed the same basic rights as the victim under the United States Constitution.
Opponents of the death penalty, view all methods as inhumane. They believe in the fact that killing is never an acceptable solution or a means of providing justice. Their principle argument against the death penalty is its violation of the fundamental human right to life. They claim that the death penalty contradicts the constitutional protection against “cruel and unusual punishment” promised to all US citizens under the eighth amendment. Studies have led to the conclusion that the death penalty, as a whole is not a crime deterrent. Opponents of the death penalty often reference the Bible in claiming that taking a human life is punishable in the eyes of God. The fact that hundreds of death row inmates have been proven innocent after having been sentenced to death also gives substantial support to this viewpoint. They view even the use of lethal injection, the method I propose is the most humane, to deprive people of their constitutional rights. Groups such as Amnesty International are taking measures in order to reduce the number of leatal injections administered in the United States each year. The efforts of this group and many others alike have been successful in that ten states in the United States have banned lethal injection as a means of execution. The Supreme Court is now reevaluating the use of lethal injection as "cruel and unusual." The fact that many previous executions have been flawed futher strengthens the argument of this position. Many of the executioners were not qualified to administer such executions and, as a result, caused the execution to go wrong-- causing tremendous pain to the inmate in the process. They also make reference to wrongful convictions in the past that have placed innocent people on death row and even led to the execution of several others.
In dealing with whether or not a method is humane, we must also consider whether or not it applies equally to everyone. Embedded in this argument is the idea that the death penalty is a means of providing justice; meaning that it should apply equally to everyone. However, this is not always the case. Sadly enough, but very apparent in today’s society, the conviction of a victim to the death penalty is largely influenced by his or her socioeconomic status and race. Today, more Whites support the use of the death penalty than Blacks. How can we deal with whether a method of execution is humane when the method of conviction is itself flawed?
My argument, however, centers not around whether or not the death penalty, itself, is humane but around which method of execution is most humane. Though I personally am against the death penalty, I accept the fact that it is a part of our justice system. Having accepted it as a means of providing justice to the victims I agree with law professor David Row at the University of Houston in that we should do our best in order to make the punishment of the criminals as humane as possible. A wider use of lethal injection as opposed to other methods of execution in the future will solve this dilemma. Lethal injection uses the same anesthetic drugs that are used in surgeries today. This proves the fact that the victim is receiving the same treatment as a person in a hospital. However, as the Supreme court continues to review cases that deal with the humaneness of the death peanlty, the methods that are used to administer it are still questioned. There is, as of right now, a temporary decrease in the number of executions as courts review the humameness of the practice of lethal injection. Whether this decrease is temporary remains questionable.
Proponents of the death penalty claim that all methods of execution are humane because in their view the death penalty is aimed at providing justice to the victim. In an attempt to provide justice to the victim, they easily overlook the rights of the accused. John McAdams sums up this view in declaring, “If we execute murderers and there is in fact no deterrent effect we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims.” He goes on to say that he “would much rather risk the former.” I agree with the fact that the criminal should be punished and the severity of the punishment, or the severity of the method of execution, should fit the crime that has been committed. However, I don’t think we should overlook the fact that the defendant, too, is guaranteed the same basic rights as the victim under the United States Constitution.
Opponents of the death penalty, view all methods as inhumane. They believe in the fact that killing is never an acceptable solution or a means of providing justice. Their principle argument against the death penalty is its violation of the fundamental human right to life. They claim that the death penalty contradicts the constitutional protection against “cruel and unusual punishment” promised to all US citizens under the eighth amendment. Studies have led to the conclusion that the death penalty, as a whole is not a crime deterrent. Opponents of the death penalty often reference the Bible in claiming that taking a human life is punishable in the eyes of God. The fact that hundreds of death row inmates have been proven innocent after having been sentenced to death also gives substantial support to this viewpoint. They view even the use of lethal injection, the method I propose is the most humane, to deprive people of their constitutional rights. Groups such as Amnesty International are taking measures in order to reduce the number of leatal injections administered in the United States each year. The efforts of this group and many others alike have been successful in that ten states in the United States have banned lethal injection as a means of execution. The Supreme Court is now reevaluating the use of lethal injection as "cruel and unusual." The fact that many previous executions have been flawed futher strengthens the argument of this position. Many of the executioners were not qualified to administer such executions and, as a result, caused the execution to go wrong-- causing tremendous pain to the inmate in the process. They also make reference to wrongful convictions in the past that have placed innocent people on death row and even led to the execution of several others.
In dealing with whether or not a method is humane, we must also consider whether or not it applies equally to everyone. Embedded in this argument is the idea that the death penalty is a means of providing justice; meaning that it should apply equally to everyone. However, this is not always the case. Sadly enough, but very apparent in today’s society, the conviction of a victim to the death penalty is largely influenced by his or her socioeconomic status and race. Today, more Whites support the use of the death penalty than Blacks. How can we deal with whether a method of execution is humane when the method of conviction is itself flawed?
My argument, however, centers not around whether or not the death penalty, itself, is humane but around which method of execution is most humane. Though I personally am against the death penalty, I accept the fact that it is a part of our justice system. Having accepted it as a means of providing justice to the victims I agree with law professor David Row at the University of Houston in that we should do our best in order to make the punishment of the criminals as humane as possible. A wider use of lethal injection as opposed to other methods of execution in the future will solve this dilemma. Lethal injection uses the same anesthetic drugs that are used in surgeries today. This proves the fact that the victim is receiving the same treatment as a person in a hospital. However, as the Supreme court continues to review cases that deal with the humaneness of the death peanlty, the methods that are used to administer it are still questioned. There is, as of right now, a temporary decrease in the number of executions as courts review the humameness of the practice of lethal injection. Whether this decrease is temporary remains questionable.
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