Vol. 33 No. 03 (March 2023) pp. 37-39RADICAL ENFRANCHISEMENT IN THE JURY ROOM AND PUBLIC LIFE, by Sonali Chakravarti. Chicago: Chicago University Press, 2019. pp. 168. Paperback: $29. ISBN: 978-0-2266-5429-4.
Reviewed by Anna Offit. Dedman School of Law. Southern Methodist University. Email: aoffit@smu.edu.
Whose discretion lies behind the perpetuation of racism and mass incarceration in the United States? In RADICAL ENFRANCHISEMENT IN THE JURY ROOM AND PUBLIC LIFE, Sonali Chakravarti suggests that in focusing on law enforcement officers and prosecutors, scholars have overlooked the jury as a key decision-maker in American society, and thus a meaningful object of legal reform. After all, it is often the anticipation of, and reactions to, jury verdicts that shape public discourse and popular action aimed at remedying the country’s persistent social issues. American jurors have enormous discretion, though they do not always seem to grasp that they possess the power to actually advance the ends of justice beyond the courtroom. Here lies Chakravarti’s central argument: people-as-jurors ought to be educated and encouraged to embrace their potential to engage in transformative political praxis. This “radical enfranchisement” (p.3), as she terms it, would at last see the jury live up to its full potential as a democratic actor.
Chakravarti begins, as many jury scholars do, with Tocqueville. And yet, her treatment of his work in the book’s first chapter is novel. She questions his view of the jury as a democratic institution (p.28) by looking at places where his enthusiasm is tempered by emphasis on the critical and necessary influence that elites have on jurors (pp. 24-25). A Tocquevillian approach, she argues, would address the lingering shortcomings of democracy by discouraging the creativity and autonomy of laypeople in favor of promoting emulation of the elite. By contrast, Chakravarti argues that the solution to the failures of our politics is greater lay participation in the legal system. The key, she notes, is identifying those overlooked opportunities for laypeople to exercise the impactful forms of discretion associated with radical enfranchisement.
Subsequent chapters locate these openings in aspects of trial procedure. The first of these, discussed in Chapter 2, is the “hung jury. According to Chakravarti, the hung jury exemplifies radical enfranchisement as a practice of dissensus rooted in reflexive deliberation. She contrasts this view with that of the “Allen Charge” an instruction that judges, in many jurisdictions, deliver to frame dissensus as a mistake or as a sign of institutional dysfunction. Drawing on Habermas’s work on communicative rationality and the “lifeworld”, Chakravarti holds that the Allen Charge is blind to the existence of “important worldview differences”, as well as the non-hierarchical relationships of jurors that might preclude agreement (pp. 42, 44). Where the Allen Charge attempts to suppress the diversity of the American public in order to effect a phony consensus among its complex segments, Chakravarti invites a rethinking of the hung jury as an expression of legitimate political resistance.
In Chapter 3, Chakravarti turns to the standard of reasonable doubt. She points out that there is a significant paradox here: the same local knowledge that equips laypeople to accurately and sensitively assess evidence and the character of the accused can lead them to be disqualified for bias (pp. 64-65). Once more, the book’s prescription is a heavy dose of reflexivity. As she puts it, people should draw upon “common sense or the benefits of life experience for making judgments about character, motivation, and guilt” while nevertheless “conced[ing] that additional scrutiny is necessary and that the trial provides concrete opportunities to do so” (p. 69). Further, we must come to accept that jury service is a site of learning—jurors can learn to adopt novel approaches to trial evidence. Here, again, Chakravarti locates an opening for jurors to take greater ownership over the conditions of their deliberation and the power of their decision-making. At times, that power will lead to verdicts that run counter to the evidence but align with jurors’ shared intuitions about justice. Some Americans may balk at this idea. After all, the general rule we find in criminal law casebooks today holds that while questions of fact are the exclusive province of the jury, matters of law are left to the judge. As a result, while juries have the power to nullify the law, many legal actors that they are not entitled to do so.
In Chapter 4, Chakravarti argues that an approach to the nullification issue rooted in radical enfranchisement would see American courts give jurors three options when rendering their verdicts in criminal cases: guilty, not guilty, and nullify. The “nullify” option, in her view, could be explained to jurors as something that should only be exercised in cases where a guilty verdict would be repugnant to their sense of justice. It would have various functions: it would be a counterweight to the discretion exercised by prosecutors in deciding what charges to bring; it would remove the leverage from prosecutors who might otherwise be in a position to pressure defendants into accepting guilty pleas; it would send a message about the extent to which the law has fallen out of alignment with common sense intuitions about justice; it would be a remedy to systemic biases.
This would be radical enfranchisement in action. So, what stands in its way? On the one hand, Chakravarti suggests that a particular form of civic education is essential before this praxis becomes a feature of our politics. As part of this education, jurors must be made aware of both forms of, and rationales, behind criminal punishment (p. 12)— as well as non-carceral alternatives. Yet in practice, and with few exceptions, jurors in America do not have a say in “questions of punishment and sentencing” (p. 11). According to Chakravarti, this must change since she envisions a legal system in which jurors collectively determine “what constitutes fair punishment and whether imprisonment is appropriate” (p. 19). In the book’s final chapter, she even proposes that jurors’ involvement in sentencing might extend beyond capital cases, such as when the jury petitioned the court for a lenient sentence in rendering a guilty verdict for an Occupy Wall Street activist.
But educating jurors is not the only obstacle to radical enfranchisement. There is, for instance, the systematic misleading of grand jurors who are taught to believe that a petit jury will more carefully scrutinize the evidence they consider when deciding on an indictment. There is also the problem of jurors’ ignorance of the stakes of even minor criminal convictions, as well as the problem of those who understand that power all too well, engaging in activism against mass incarceration and racism only to find that this can be grounds for their excusal. There is also the issue of how the bias and prejudice of jurors—if left unexamined and unquestioned—might exacerbate injustice. This can happen when juries nullify in prosecutions of rape defendants because they find the defendant is unsympathetic, or that the victims do not conform to gender stereotypes. In short, there is plenty that can stand in the way of radical enfranchisement.
The realization of Chakravarti’s vision must also contend with the fact that remaking jury service as a site of transformative political praxis hinges on the actual occurrence of jury trials. In recent decades, however, we have seen—especially at the federal level—a general reluctance to allow cases to find their way to a jury, resulting in an overall decline in the number of jury trials. With the pressure prosecutors face to negotiate plea bargains, it is unlikely this trend will be reversed unless criminal defendants assert their vital right to trials by jury. Moreover, if such involvement becomes possible at scale, it will be necessary to address problems of social inequality that influence which individuals can report to court for jury service. The COVID-19 pandemic offers a glimpse of how advances in technology—including fully or partially remote trial proceedings—might encourage the participation of those who wish to fulfill their civic duty but face physical or material obstacles. These and other lingering questions may leave readers eager for reform on a broader scale.
And yet, RADICAL ENFRANCHISEMENT is a timely, engaging, and powerfully-argued book. It should be read by legal scholars, judges, lawyers, and, most importantly, the public. After all, if radical enfranchisement begins with awareness of the true power that juries have, then this ambitious and accessible work undoubtedly has a part to play in showing people that as jurors, they contribute in a fundamental way to the vitality of our democracy.
REFERENCES:
Breyer, Charles R., Patricia K. Cushwa, and Jonathan J. Wroblewski. 2021. 2021 ANNUAL REPORT AND SOURCEBOOK OF FEDERAL SENTENCING STATISTICS. United States Sentencing Commission.
© Copyright 2023 by author, Anna Offit.
