JURY ON TRIAL: Reforming the Criminal Justice System

Thursday, June 25, 1998

The American public has lost faith in our criminal justice system. Susan Estrich, the Robert Kingsley Professor of Law and Political Science at University of Southern California, Charles L. Hobson, Atttorney, Criminal Justice Legal Foundation and Pamela Karlan, Professor of Law at Stanford University, take a critical look at justice in America and tell how to fix a system badly in need of repair.

Recorded on Thursday, June 25, 1998

ROBINSON Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today, the criminal justice system.

Justice is blind. At least, justice is supposed to be blind. There are those who would argue that the American system of criminal justice is anything but. One example, get caught in possession of five grams of crack cocaine or five grams of powdered cocaine and you'd think the penalty would be the same. Five grams, five grams, cocaine, cocaine. You'd think wrong. Possession of five grams of powdered cocaine results in a sentence, a maximum sentence of just one year. Possession of five grams of crack cocaine result in an automatic sentence of five. Now, that's a disparity that many believe is racist. Those most often charged with possession of crack cocaine are black. And the accusation of racism is often leveled against the criminal justice system as a whole. Sometimes to send a message that the system is indeed unfair, juries have been known to engage in jury nullification, intentionally permitting a guilty party to walk. We will be talking about jury nullification in just a moment.

With us today are three guests: Charles Hobbes, an attorney with a criminal justice legal foundation, believes the charges of racism are wholly unfounded. The system is fair. Susan Estrich, a law professor at the University of Southern California, and Pamela Karlan a law professor at Stanford, disagree. They argue that the American system of criminal justice is indeed tainted. So, our question today: Is there a thumb on the scales of justice?

ROBINSON What is jury nullification?


KARLAN Jury nullification is when a jury refuses to convict given the law and the facts so that they know what the law is. And they agree that the facts prove that the defendant violated the law, but they none the less acquit him.

ROBINSON So the defendant is guilty. The twelve members of the jury know in some way or another that he is guilty. And they bring in a verdict of not guilty.


ROBINSON And this is some argue a good idea? What is the justification for jury nullification?

ESTRICH I bet we could all think of cases where we wouldn't convict, where it really would be the case that someone were technically guilty of a violation of a bedroom law and if some prosecutor were crazy enough to prosecute them. Some of us on a jury would not convict abortion related crimes, for instance, or for crimes which we felt perhaps ... you see the famous examples from the revolutionary period. You know, Zenger and the First Amendment, etc. The problem we're having right now, I mean Pam's definition is exactly accurate. But the problem is we have a school of thought right now that says that in particular black juries trying black defendants for violations of drug laws, many of which it is arguable are unfair in terms of the sentencing and the racially disparate sentencing. But there are some people who are saying that the answer to this problem is not to change the law and not to deal with drug education but to acquit guilty defendants.

ROBINSON So the fundamental justification for jury nullification, that is the notion that it is right for juries in certain cases to send people away even though they are guilty, is that the system is racist.

ESTRICH Well that's one justification. That's an argument for race based jury nullification.

KARLAN There are two different kinds of jury nullification. One is where the jurors would agree in the abstract the law is fair but they don't think it should apply to this person. So for example, a mercy killing. There was a case many years ago where a ninety year old man smothered his wife who begged him to help her smother her. If the jury believes that she asked him to do it, it's still a manslaughter.


KARLAN But then they decide, we can't send this man to jail. That's one kind of jury nullification.

ROBINSON That is no attack on the criminal justice system.

KARLAN Well, yes, it is because he did it.

ESTRICH If juries did that all the time. And you have juries applying the law. So the idea is that the safety valve, you know you have a safety valve in the system because you've got to have one. Juries have a right to acquit. But that if juries did this all the time in a systematic way, then you've got a less arguable...

KARLAN The other kind is where the law is fundamentally unfair or the law is so old that it shouldn't be applied anymore.

ROBINSON And this is where the race based justification comes in.

KARLAN No, no.

ROBINSON Not yet. Go ahead.

KARLAN A good example in Georgia, the Supreme Court ten years ago upheld Georgia's consensual sodomy law which makes it a crime for two people to engage in oral sex with each other at home in the privacy of their own home. Imagine that a married couple is prosecuted under the law which applies to married couples in Georgia. No jury would convict.


ROBINSON Even in Georgia?

KARLAN Even in Georgia.

ESTRICH A heterosexually married couple.

HOBSON I don't now if anyone has been convicted in Georgia any time for anything like that. That is really another form of the political...

ROBINSON Give me the race base justification.

HOBSON The race base justification is that blacks are unfairly suffering under the enforcement of the drug laws and there is an article by a professor...

ROBINSON Paul Butler.

HOBSON That said this is the proper thing to do.

ROBINSON Thank you for raising Paul Butler because I have a quotation here from Paul Butler. He argues that jury nullification "is perhaps the only legal power black people have to escape the tyranny of the majority." My next question is: Is the system racist? Consider some figures. More black men go to prison than go to college. Here in California 40% of black men between the ages of 20 and 30, 4 out of 10, are convicted criminals. So is Butler right? Is the system racist? Susan?

ESTRICH The unfortunate truth, I believe, and it's not just me, it's every major criminologist in this country, is that the reason, the fundamental reason, there are more blacks in prison is because more blacks commit crimes. And it is not a system. The usual attack on the system is racist. So the system is racist because all these people are in prison. The fundamental reason there are so many blacks in prison is because not because being black causes crime. But because the factors that correlate with being black or Hispanic in America today, which is to say being young, poor, poorly educated from a single family household who hasn't gone to college and doesn't have resources and access to all the other good stuff in society, is what correlates with crime. So the system is racist in lots of ways. Sure. If you are a black man driving along the street, you are much more likely to be stopped, no matter what anybody ever tells you than and if you are a white man driving along the street, the truth of the matter is the police due act, I think, in most urban areas, in a racist way. But they do so because it is the reality of their experience that those kids are more likely to be dangerous. Those four black kids on the corner.

ROBINSON Is that racist chuck?

HOBSON If it does act in accordance with the reality. If there is some, I guess, statistical validation or some inference...

ESTRICH Of course there is. Of course there is.

HOBSON I mean racist is a very powerful...

ESTRICH Of course, that's the problem. I mean what I think is racist about the system... is the fact that we don't prevent crime. That we tolerate a situation in which we know there is this group of five year olds who will likely to grow up to become that group of 14 year olds who in turn will be that 18 year olds that we will lock away for life, and we don't do something when they are five years old. Who will in turn be that group of 18 year olds that we will lock away.

ROBINSON Wait a minute. Crime prevention is one thing but does Susan have any examples of racist prosecutions?


ESTRICH If you get caught with crack cocaine you will be punished ten times as severely as if you got caught and prosecuted for the same amount of powdered cocaine. Now I don't think the people who pass that statute did so because they sat down and said we hate black people and we know they're the ones who most likely to use crack cocaine. I think it emerged out of the differences of crack being more likely to be associated with violent crime, etc., etc. But the reality at the end of the day is when a white people use by and large powder. What do black people use, by and large crack. Who goes to prison for ten years? The black guy. Who goes for one? The white guy. It's racist.

HOBSON What happened was actually that Charles Randall who is the head of the Black Caucus in the Congress to rebuke people to push the increase in crime, the increase in penalties for crack cocaine.

ROBINSON How come?

HOBSON Because it was devastating to black communities. It was just... One of the major, major reasons for the tremendous increase in homicides during the `80's and into the early `90's was crack cocaine and the violence associated with crack cocaine. It is much, much, much worse than the regular cocaine.

ESTRICH Well, when you say much worse, it's not worse in terms of its actual strike to content. So you and I can say... No, it is not even more physically addictive. It is worse in the sense that it is more likely to be used by people who have engaged in other criminal activity, etc., etc.

ROBINSON What did Charlie Randell have in mind when he pushed for higher penalties.

ESTRICH He didn't propose the disparity and what ended up, I don't think it was an intentional disparity but he didn't propose that the same amount of cocaine, if powdered, be punished one tenth as much as it is when it is crack. There may be reasons for that but the truth is that looks racist to a lot of people.

ROBINSON It looks racist to you?

ESTRICH To me it looks stupid and inefficient.

ROBINSON Racist or stupid?

KARLAN The way it looks to me is sort of unconsciously racist. Because when you think of racism in the traditional way, it's I'm going to do this bad thing because I hate black people. And what is really going on here is not we are going to do these things to black people because we hate them but we are less likely to think that an 18 year old kid with crack cocaine can be rehabilitated than an 18 year old with powder because the 18 year with powder might be our own child and the 18 year old kid with crack looks different, looks threatening.

HOBSON As a fact, crack cocaine was causing more harm than regular cocaine.

KARLAN But for example. It doesn't cause more problems than something like crank, methamphetamine. And that is not treated as severely because primarily whites use that, not blacks.

HOBSON Much less violence associated, I mean not crank. Much less violence.

ROBINSON In the buying and selling and procuring of crack cocaine there is much more violence.

ESTRICH What the problem is every time we go in this little circle, crack is more associated with violence. The people who are using it are more likely to have criminal records, to have used drugs since a juvenile, to have the various indicia that are the best we can do to predict whose tough and who is not. But it is one thing to have that academic discussion. It's another thing to recognize that almost everybody in this group is black. And almost everybody in this group is white. And if we are putting these people in jail for as long as ten times as much, we are opening ourselves to the question of at least racial insensitivity. And if the system wanted in a show of good faith, they propose. The truth of the matter is you know the bi-partisan commission proposed closing this gap and working out a single sentencing system. But the Congress is so afraid of being accused of being soft on crime, that nobody wants to stand there and say I am voting to lower crack sentences. So nothing happens and it feeds the atmosphere of Paul Butler that says acquit.

ROBINSON Let's talk about Professor Paul Butler for a moment. He argues that jury nullification is justified. Is he right?


There are disproportionately more blacks as proportion of the population in prison than whites. We all agree?



ROBINSON We all agree. However, that the proportion of blacks in prison is in line with the proportion of crimes committed by blacks.

KARLAN We don't know.

ROBINSON You don't know?

KARLAN You don't know.

ROBINSON I thought Susan...

KARLAN On things like drug possession crimes, we don't know because the police, for example....its much easier for them to arrest people on the street than people who use drugs in their homes. So do we know that the level of drug use by black teenagers...

ROBINSON Does Paul Butler have a point? Is the system so racist that black juries should... Why not?

ESTRICH Well, first of all because it is not as racist in the sense of many blacks believe, unfortunately, and Paul Butler, I think, gives me no reason to believe that somehow whites commit just as many crimes and the same crimes as blacks do and the blacks are the only ones who get locked up for that. There are certainly instances of individual racism but on a whole sale basis, that is not true. The reason certain drug offenses are punished less than others tends to be almost exclusively their tendency to be associated with other violent crime with robberies and burglaries to support them, etc. Having said all that, when at the end of the day you've got a picture in which your prisons are half black and in this country we have prisons that are half black or more in many states. And we are not doing anything but building more prisons primarily. Then Paul Butler is right that the system is ignoring the needs of blacks. I would say it is not the black but the black children. But jury nullification won't solve it letting the drug dealers out there...

ROBINSON Jury nullification, the most famous example of what some would say was a case of jury nullification, O. J. Simpson. And the first thing I want to dig out is whether you think that was a case of jury nullification. Was O. J. Simpson guilty as charged on the best evidence as you as a ...

ESTRICH I believe O. J. Simpson got away with murder. Yes.

HOBSON He's a murderer.

KARLAN Yes, I believe he was a murderer but I don't think the jury thought he was.

ROBINSON Oh, my goodness. Wheels within wheels within wheels.

KARLAN No, I think that, see...

ROBINSON You think... so it wasn't a case of jury nullification because they truly believed he was innocent? Johnny Cochran said to the jury at his closing argument...

ESTRICH Did they really have reasonable doubt or did they ask the question of whom they had reasonable doubt?

KARLAN I think what happened in that case which happens in a lot of criminal cases is the longer the case goes, the less likely you are to get a conviction. Prosecutors will tell you. Simple cases lead to convictions and friends of mine who have been prosecutors in Los Angeles say if a case lasts more than four months you're almost never going to get a conviction of the defendant because more and more little tiny pieces of doubt build up and moreover we could talk about who the jurors are in cases...

ROBINSON You believe that the jury that acquitted O. J. Simpson in its own mind had reasonable doubt as to whether he actually committed the crimes with which he was charged.

KARLAN I think that is just as likely as thinking that they thought he killed his wife...

ESTRICH How do we know? I mean this is one of the great beauties...

ROBINSON What do you think? What do you think?

ESTRICH What do I think? I think that race played a huge, huge, overpowering role in that case and it became a dominant issue.

KARLAN I think if Mark Fuhrman hadn't testified in that trial at all, would that jury have acquitted O. J. Simpson? I think probably not.

ESTRICH If the case had been tried in Santa Monica. If, if, if.

You know there is something scary about a case in which there was so much scientific evidence pointing towards guilt and yet reasonable doubt gets created out of blue smoke and mirrors. And I think the reason so many of us thought it was jury nullification, whether we are right or not, you can see inside the juries head, is because we looked at the overwhelming evidence and said if we illuminate any thoughts of politics, how could there be any doubt? I mean...

ROBINSON Is Johnny Cochran...

Susan believes that O. J. got away with murder. Others believe that even if he did, the jury was still right to acquit him.


ROBINSON The murderer cut so deeply into the necks of the two victims that he nearly decapitated them and the jury and the physical evidence was overwhelming that that murderer was O. J. Simpson and the 12 twelve jurors voted to let him walk. And Alan Dershowitz said this after the verdict, "I am confident that the jury's unanimous acquittal in this case will promote truth in the long run by sending a powerful message that business as usual will not be tolerated. Is Dershowitz right about that?

HOBSON He just likes getting his name in the newspapers. That's all. Dead wrong. Absolutely dead wrong. What it's going to do...

ROBINSON Do we have any defendants of Dershowitz here?

KARLAN Maybe somewhere behind us.

ESTRICH But not on that one. I think what he did was send a powerful message that people should not trust the criminal justice system and that they couldn't trust each other to apply the same rules.

ROBINSON Let me ask this. As three lawyers who pay close attention to criminal justice system are you offended by Dershowitz, one of the stars of your own profession, making a statement of this kind? And if you are what are the sanctions? The informal sanctions?

ESTRICH It's a free society.

ROBINSON No, but he's a member of a profession.

ESTRICH You criticize. I criticize...

KARLAN He's one of O. J.'s lawyers.

HOBSON Even if he weren't O. J.'s lawyer, you have a First Amendment right to say stupid things. I mean...

ROBINSON Oh you all stick together.

ESTRICH The problem we have right now is that the public debate about law often only has the most outrageous, the most ridiculous, you know. You find the person who is willing to bring the most ridiculous suit or say the most ridiculous thing, you put them on TV with the other person and the most ridiculous other side and have them fight. And the good stuff people never see.

KARLAN Here's the real problem. The real problem is the O. J. case is so atypical. What it shows you is if you have infinite amounts of money and a judge who absolutely doesn't ride heard on the lawyers, you get acquitted. What people don't see from a case like that is that there are huge numbers of defendants who go to trial with really quite inadequate lawyers and no ability to hire experts to counter the state's experts and so there are a lot of cases... For the amount of money they spent on the O. J. Simpson case they probably could have reformed the entire PD system in a large American city, give more people justice.

ROBINSON In the O. J. Simpson case we saw the public... I actually started to feel sorry for the prosecutors in the sense that these people are on the public payroll, they don't make anything like the money.

ESTRICH I have to say I wrote a piece at one point saying, you know, there are some of us who are law professors and others out here who wouldn't want to be on this Dream Team. Maybe the prosecution on this kind of case ought to get its own Dream Team of outsiders and I got a nasty call, the only time I ever did from the District Attorney's office, saying we don't need any help thank you very much.

KARLAN A friend of mine who was a prosecutor in Los Angeles, a federal prosecutor, many years ago called me up at the beginning of the O. J. Simpson case and said the only thing that stands between O. J. Simpson and conviction is the LA County DA's office. And that was his view of winning his case.

ROBINSON Okay, now let me ask you this.

HOBSON Let's defend the LA County DA's office. There are a lot of very good DAs in LA County.

ESTRICH There are.

HOBSON The problem was that the upper, upper, upper level of this management starting with Garcetti.

ESTRICH He was playing politics from the beginning with where the jury was going to be. We talked about what matters.

KARLAN They should have tried the case in Santa Monica.

ROBINSON What would have happened if they tried in Santa Monica. Santa Monica's white, right?

ESTRICH Santa Monica is more diverse. Santa Monica is not completely white but it's not completely minority. It would have been a diverse jury more like the jury in the civil case. The courtroom is quite literally smaller. You would have had less of a media circus inside the courtroom and I think there is very little question that the appeal to people to send a message to the Los Angeles Police Department would strike a very different chord among a Santa Monica jury than it did with the downtown jury. But the reason it was moved downtown, and this is the irony, is because Garcetti was so certain of the strength of his evidence, so sure that this was a slam dunk politically that he didn't want the black community to turn on him for locking up one of their great heroes. So he thought that a verdict of guilt would be better politically coming from a downtown jury plus bigger courtrooms. And, in fact, it was just like in the Rodney King case when they moved the case way out to the Simi Valley, got themselves an all white jury who wanted to send a message of support to the LAPD. In this case I think on both sides under estimating the impact of race and how if this case exploded as it did and became the vehicle for what it became there would be no judging it according to the standards applicable to usual case.

ROBINSON So what's the fall out here? Johnny Cochran said to the jury, send them a message. O. J. Simpson is out of jail. Let me ask you this. Have there been any reforms of the LAPD?


ROBINSON As a direct result of this?


ROBINSON Okay, so what I want to know is Cochran said send them the message, the jury sent them the message, and the message went nowhere. Is that true?

KARLAN Well they were already hearing a message out of the Rodney King case and the riots right after that.

ESTRICH I think the message was we are more divided than you think. And unlike Alan, I think if anything positive came out of the O. J. Simpson case, it was not anything so direct as a reform of the criminal justice system. All the reforms people were proposing after that case would have made it much worse for the vast majority of defendants, who have access to nothing, and would have gotten less so it wasn't that. It was more a reflection, I think, of forcing people to confront just how far apart we were if we could indeed look at the same evidence and look at the same facts and come to...

ROBINSON Chuck, what should be done with the jury system?

HOBSON One thing before that. You also remember that this jury wasn't necessarily a reflection of even a black America. It was a very, very well drawn pool by people by a defense team. It was much better at determining who is sitting on the jury and the prosecution. And the prosecution made catastrophic mistakes in selecting the jury.

ROBINSON Enough about the O. J. jury. How do we fix the jury system?


ROBINSON What's a peremptory challenge?

HOBSON A peremptory challenge is when either one party or the other decides they don't this juror on the pool to serve on the jury and they challenge them and they don't have to give any reasons so long as it is not racially or sexually based.

ROBINSON Did you know Susan is opposed to peremptory challenges?

HOBSON Yes, I do. I read her book.

ROBINSON And are you in favor of her position?

HOBSON I think it's a little too extreme right now but I would like to see some states experiment, but not my state of California.

ROBINSON So what should be done with the jury system? How do we get better juries?

HOBSON The best thing about getting better juries is make it easier to become a juror.

ROBINSON Easier to become a juror?

HOBSON You also have to make it less of a hassle to become a juror. I mean yes, you should make more people jurors.

ROBINSON Hold on I am not clear on what you are saying. So far as I know I get a piece of mail, unwanted by the way, it shows up, it says I am now part of a jury pool. I have to listen to see if my number gets called...

ESTRICH You did nothing with that? And you know what used to happen if you did nothing with that?


ESTRICH Nothing. I once said to a friend of mine, she'll remain nameless, what would happen. I think I lost it, I said. She said, "Well, that's fine. If you send it in they keep you in the pool. If you don't, you're out of the pool." Now, for starters...

ROBINSON There is no penalty for throwing it in the trash.

ESTRICH Well, I am not going to advise anybody to do that but that used to be the system and continues to be in many places. Now for starters, imagine the IRS working that way. If you want to send in a tax return go right ahead. If you're not...

ROBINSON I can tell you what a relief it would be.

ESTRICH Right? But I mean the idea is that jury service should be a civic duty for everybody. It should be a sense of personal responsibility. Not only for those who don't have more important things to do.

ROBINSON So you make it harder to get out of jury duty. You in favor of that?


ROBINSON You in favor of that?


ROBINSON You're in favor of that?

What's magic about the number 12. We have nine justices on the Supreme Court. Cut it down to nine or seven games in the World Series, cut it down to seven. Why don't we have smaller juries?

HOBSON Historically, when we had the revolution it had gotten down to 12 people on the jury and that's why. Actually it started a couple hundred people started or a whole county was initial in starting the jury system. It just came down to 12. Constitutionally, I think you can go down to seven.


HOBSON Seven or six. Yeah.

KARLAN Six you can go down to, five you can't.

ROBINSON So why don't we? Why don't we?

HOBSON Some states do. Florida does, a lot of states.

ROBINSON Is that a good idea?

HOBSON It is usually done to save money. It cuts the time of picking the juries, it conceivably cuts the time of the trial. If you have a smaller jury you have, I guess, less of a chance... I don't know how the mathematics work. You might have a smaller chance of a hung jury.

ROBINSON Why do jury decisions have to be unanimous?

KARLAN They don't.

HOBSON They don't.

ESTRICH They don't

KARLAN The Supreme Court has said you could have a jury decide 10, two.

ROBINSON So it's a matter of state law?


ESTRICH Right. Yeah.

ROBINSON But isn't it the case that...

ESTRICH Every jury is unanimous. Yeah.

ROBINSON And in California we have ... unanimous.


ROBINSON Doesn't every state?


HOBSON Actually, California... I don't if a majority of the states go non-unanimous, but more and more states are non-unanimous.

ESTRICH But generally understand, vis a vis, these are moves. Okay, there's a problem here. These are moves fueled by cases like O. J. Simpson and the usually inaccurate perception that we are letting large numbers of guilty people get away with murder and that we don't, I mean juries are a small part of the problem in the criminal justice system. Most people never get that far.

KARLAN You need to have a unanimous jury to acquit as well.

ROBINSON Right, okay, let's close it out. We have to close it out. One reform to the jury system. What would it be?

ESTRICH Make everybody serve?

HOBSON Make it easier to serve as a juror?

KARLAN Make everybody serve.

ROBINSON Pam, Chuck, Susan, thank you very much.

All three of our guests agree in one way or another. The jury system needs to be reformed. It's not too much to say that our system of justice hangs in the balance.

I am Peter Robinson. Thanks for joining us.

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