What If Ordinary Juries Were More Like Impeachment Juries?

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

“Today, the sham impeachment attempt concocted by Democrats ended in the full vindication and exoneration of President Donald J. Trump,” said Stephanie Grisham, the White House press secretary. “As we have said all along, he is not guilty.”

Indeed, the Senate fell far short of the two-thirds margin needed to convict the president and remove him from office, with all senators except for Republican Mitt Romney voting along party lines. But several Republican senators who voted to acquit did not say that he was not guilty of the two charges against him. Many thought he had indeed abused his power and obstructed Congress, but did not want to vote to remove him from office.

“Determining which outcome is in the best interests requires a political judgment—one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation,” wrote Senator Marco Rubio in a statement on Medium. Long before the Senate trial began, Rubio said that “the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.”

“This statement by a Senate juror seems to be arguing that, even if President Trump is factually guilty, the mandatory minimum punishment in an impeachment trial of removal is not in the best interest of the country,” wrote Douglas Berman on his blog, Sentencing Law and Policy. “Similarly, Senator Lamar Alexander’s statement about why he was voting against witnesses seemed to call President Trump’s actions inappropriate while suggesting the sanction of removal was not justified for this kind of inappropriate behavior.”

When Alexander explained that he would vote not to hear from witnesses in the trial, he told NPR, “I don’t need to hear any more evidence to decide that the president did what he’s charged with doing.” Still, he wouldn’t be voting to convict.

Some have slammed Republicans for this stance, calling them cowardly for their cynical, politically calculated hypocrisy. In the New York Times, Senator Sherrod Brown, an Ohio Democrat, wrote, “In private, many of my colleagues agree that the president is reckless and unfit. They admit his lies. And they acknowledge what he did was wrong.” For them, Brown writes, “fear is the motivator.” They are afraid that Trump “might come to their state to campaign against them in the Republican primary,” and they might lose their seat.

This is undoubtedly true. The entire process is political in a way that an ordinary criminal trial is not. And yet there is another criticism floating around, one that is not specific to the impeachment process, and it is more troubling:

The stance that Alberta, the chief political correspondent for Politico, and others have taken, seems to call into question the idea of jury nullification. Another way to see Alexander and Rubio is, as Berman writes, as “two fully informed jurors with a concern for proportionate punishment and the broader public interest.” He continues: “Put another way for sentencing fans, we should be ever mindful of how mandatory minimum sentencing schemes (even one in the US Constitution) will necessarily impact the work of all decision-makers in the administration of justice. Also, if jury nullification makes sense in the trial of a President, why not for everyone else?”

Rubio and Alexander are probably trying to hold on to their jobs; it’s hard to believe that they are taking a principled stance about mandatory minimums and sentencing. And yet, there may be a valuable insight to be taken from the politicized nature of the impeachment process. Ordinary juries are told over and over just how limited their role is in the larger criminal legal process. They are told that they simply decide whether the prosecution has proved its case beyond a reasonable doubt, and they must give no thought as to the potential consequences of that decision. In most jurisdictions, the jury is not told the potential sentence if they choose to convict and are forbidden from researching the question. Once, after losing a trial, I spoke to a few of the jurors who told me in no uncertain terms that if they had known the severity of the sentence awaiting my client, they never would have voted to convict.

Often, jurors report feeling like “cogs” in a “machine” whose sole aim is to punish people as frictionlessly as possible. Paul St. Louis, a Virginia resident, was on a federal jury that found a man, Frederick Turner, guilty of drug offenses. “It wasn’t easy to arrive at this verdict, and the result of our deliberations gave us no pleasure,” he later wrote in the Washington Post. “A few months later, I found out the result of our verdict was worse than I expected: Turner, a meth addict with no prior criminal convictions, received a mandatory minimum sentence of 40 years on two counts of having a firearm while dealing drugs. I was astonished; we had no idea that we were sending someone to prison for four decades.” Less than a year into that sentence, Turner killed himself in prison. “Today,” St. Louis wrote, “I feel like a pawn used to send a man down a path that led to his unjustified death.” If he could go back in time, St. Louis says he would nullify because the “sentence he received was simply unjust.”

Seth Stevenson, writing in Slate, recounts his deep regret at reaching a guilty verdict in a 1998 case. “It was the language of the law that hemmed me in. It seemed strict and unyielding.” Stevenson also noticed that cabining people’s roles throughout the system helped make the conviction more likely, and seemed to relieve each player of moral responsibility. “None of these professionals felt they’d had much control over the case’s outcome. The prosecutor who tried a minor as an adult, the judge who sentenced that teenager to decades in prison even though she felt he wasn’t maximally ‘culpable’ in the crime, and the defense attorney who didn’t second-guess any tactical choices on behalf of a losing client—they all felt they’d done what the system required of them.” Both the defense attorney and the judge “reminded me that the onus of the verdict is on the jury. I saw them as the machine’s operators and myself as one of the gears they were turning. They told me I’d been the one in control the whole time.”

At the very least, an impeachment trial forces its jurors to take responsibility for their decision. This is actually closer to the way juries functioned in the U.S. in the 19th century. “Between 1880 and 1930, states and municipalities used law to increase governmental controls over the full range of nineteenth-century avenues for democratic participation,” law professor Tabatha Abu El-Haj writes in a 2011 law review article. “Prior to that, the practice of democratic politics in the United States was less structured by law.” Juries, she writes, “were widely understood to have a legitimate political function and were insulated from judicial second-guessing.” But at the end of the 19th century, “long-standing efforts to limit the criminal jury to the status of a mere fact finder succeeded … putting an end to the republican political conception of the jury.”

It is clear, though, that this goal is still floating around somewhere in the notion of jury service. As Justice Anthony Kennedy wrote for the Supreme Court in the 1991 case Powers v. Ohio, by providing an “opportunity for ordinary citizens to participate in the administration of justice,” the jury trial “preserves the democratic element of the law” and “places the real direction of society in the hands of the governed.”

Kyle Barry, senior legal counsel at The Justice Collaborative, contributed research to this edition.