an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
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
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.