Balkinization: Two Acquittal Crises

Two Acquittal Crises

Mark Graber

The United States has experienced two acquittal crises. The first occurred when the Constitution was being ratified. Studies show that a remarkably high percentage of juries acquitted criminal defendants even when substantial evidence supported their guilt. The second is occurring at present. A remarkably high percentage of juries are acquitting police officers charged with killing innocent persons of color even when substantial evidence supports their guilt. The similarities and differences between these acquittal crises highlight consistencies and changes in constitutional understandings of the criminal law and race.

Americans at the time of the framing regarded many values as more important than law and order. Juries acquitted criminal defendants when they did not believe certain behaviors should be criminalized. Juries acquitted criminal defendants when they believed law enforcement officials had violated certain rights. Most important, juries frequently acquitted persons when they believed criminal punishment was inappropriate for that wrongdoing or wrongdoer. These juries seem as concerned with the character of the defendant as with the evidence supporting conviction. Persons who committed murder during a drunken fight might be acquitted if they were productive members of the community and had not previously demonstrated a distinctive inability to control their liquor.

Americans during the first decades of the twenty-first century also regard many values higher than law and order, at least when police officers are on trial for killing an innocent person of color. Twenty-first century juries (or triers of fact) seem as concerned with the character of the police officer as with the evidence supporting conviction. Police officers who grossly overreact and kill persons of color are acquitted, recent experience suggests, when triers of fact are convinced that the defendant is not a bad person. I suspect conviction rates when police officers are on trial for corruption are a good deal higher than conviction rates for police killings of innocent civilians. Being on the take more clearly demonstrates bad character than shooting someone in the spur of the moment, even when the race of the innocent person clearly influenced the decision to resort to criminal violence.

That police violence, particularly police violence towards persons of color, is a systemic problem in the United States is beside the point for many triers of fact. Drunken violence has also always been a systemic problem in the United States. The practice seems to be that juries and triers of fact do not convict persons for actions they perceive as embedded in systemic problems within institutions rather than individual guilt. Actions based on conscious racism in 2016 demonstrate bad character in ways that actions based on unconscious racism do not.

My account of the eighteenth century is obviously romantic. A good deal of evidence suggests that the vast majority of persons suspected of crime were punished with at most a smidgen of due process. Jury trials and common law/constitutional rights were for the minority of people who were perceived as productive members of society. Persons thought to be of poor character because of their economic status or race experienced an entirely different justice system. The analogy today is obvious. The conviction rate in highly public trials is fairly low (think O.J. Simpson, round 1) and punishments fairly light (think the recent Stanford rapist), in part because those defendants get their full due process rights and in part because the defendant in most highly public criminal trials tends to be someone whose crime can be depicted as out of character. By comparison, the vast majority of persons in our prisons are there as a result of plea bargains where there is very little representation and even less due process. As in 1776, persons thought to be of poor character because of economic status or race experience an entirely different justice system.

This history suggests that the United States has always had two criminal justice systems. The first is for people deemed productive members of the community. Such persons are not subject to criminal sanctions or, at least severe criminal sanctions, whenever their crimes seem inconsistent with their presumed characters. Juries find reasons not to convict their peers. Police officers take middle-class white teenagers home who engage in underage drinking. Such persons do not get off scot-free. Americans rely on social rather than criminal sanctions to deter and punish productive members of the community. The drunken murderer leaves town. The drunken teenager gets car privileges suspended for six months by their parents. The second criminal justice system is for people deemed non-productive members of society. Such persons are subject to criminal sanctions, often severe criminal sanctions, for their wrongdoing. Their crimes are presumptively consistent with their characters because of unspoken ancient assumptions that persons of their economic class, race or ethnicity are prone to criminality. The poor drunken murderer is sentenced to death. The underage teenage drinker of color is declared a delinquent. Social sanctions are foregone partly because the wrong sort of people do not respond to social sanctions and partly because the wrong sort of communities do not adequately sanction wrongdoers.

The most important development over the past two centuries may be in the relationship between these two criminal justice systems. The official criminal justice system in 1776 was the system that productive members of the community experienced, the system that safeguarded fundamental rights and preferred social to criminal sanctions, unless the crime was clearly in character. The persons responsible for the Constitution spoke with great passion about the need to protect the rights of productive community members accused of crime and hardly at all about the need to protect citizens against ordinary criminals. The unofficial criminal justice system in 1776 was extensive, but remained to a fair degree unofficial. The official criminal justice system in 2016 is the system less productive members of the community experience, the system that emphasizes law and order at the expense of fundamental rights and prefers criminal to social sanctions. Politicians compete to punish more crimes more severely. Even liberal justices suspend rights when drugs are involved. We are outraged when government officials fail to prosecute or triers of fact fail to convict in cases where substantial evidence of guilt exist.

The demand to punish police officers involved in the Freddie Gray trials and our outrage when they are found not guilty is the demand that police officers be subject to the same criminal justice system as was Freddie Gray, a criminal justice system in which substantial evidence of guilt always merits a conviction or an unfavorable plea bargain. We might, however, respond to these not guilty verdicts in a different way. Perhaps we might expand the criminal justice system that criminal defendants who are police officers or considered productive members of society have historically experienced to members of all social classes, races and ethnicities rather than expand the justice system less productive members of society have historically experienced to more fortunate citizens.

Posted 9:22 PM by Mark Graber [link]