Americans are worried—and increasingly angry—about violent crime. They want more prosecutions and tougher sentences. They demand capital punishment for murder and more cops on the street. "The attitude of ordinary people indeed is essentially vindictive: They desire revenge," writes Paul Johnson in The Wall Street Journal.
That's the story you get over and over, in magazine cover features and in newspaper headlines, in made-for-TV movies and in campaign commercials, in opinion articles and in television news specials. There is truth to the story. Americans are scared, and they are angry. They do want tougher laws. But only in the abstract.
Put 12 ordinary people in a courtroom, present them with a real, live defendant, give the defendant a good lawyer, and those ordinary Americans will forgive just about anything. "Beyond a reasonable doubt" has been superseded by "beyond any shred of an excuse."
When a jury acquitted the cops who beat Rodney King, critics blamed racism. But the jury seemed swayed less by race than by the argument that police work is risky, that the police stand as the "thin blue line" between law-abiding citizens and criminals, that King's behavior was frightening. The police, the jury reckoned, had a good excuse.
When another jury acquitted four defendants of all serious charges in connection with the savage beatings of Reginald Denny and others, critics said the jurors were afraid of another riot. What else would explain their decision that smashing someone's head with a brick constitutes neither attempted murder nor felony mayhem? But the jury seemed swayed less by fear than by the argument that the defendants were caught up in the moment, that they'd lost their heads in mob violence, that under the circumstances, the attacks were understandable. The defendants, the jury reckoned, had a good excuse.
Those were politically and racially charged trials, and they were analyzed as such. But they weren't, it seems, unique. Lyle and Erik Menendez plotted and schemed and blew away their rich parents with shotguns. There was nothing political about that act; it had no racial significance. Yet the Menendez brothers' entire trial has been about whether they had a real excuse, about whether their parents abused them and therefore deserved to die. At this writing, Lyle's jury has been out for 22 days. Erik's has deadlocked, and the judge has declared a mistrial. It looks as though someone, at least, reckoned Lyle and Erik Menendez had a good excuse.
In Virginia, Lorena Bobbitt is on trial, with cheering supporters lining the walkway to the courtroom. We used to see cutting off genitals as the ultimate sign of barbarity, whether documented in Amnesty International reports or in the history of medieval tortures or American lynching. Now it makes you a heroine, at least if you have a good excuse. The central issue in Bobbitt's trial, as in the Menendez brothers', is whether her excuse is true, not whether it is valid, not whether her act deserves punishment.
Communitarians like to point to jury duty as proof that Americans want rights without responsibilities—the right to a jury trial without the responsibility of serving on a jury. But that's mostly nonsense. If Americans are shirking their responsibilities toward jury service, they aren't doing it by not showing up.
After two weeks on jury duty, including five actual days waiting around in courthouses and not a single second hearing a case, I've met lots of Americans who would love to serve on a jury. They just don't like the way the system treats them as chattel whose time is worth nothing. They start off enthusiastic and get worn down by the waiting. If you're not actually going to be put on a jury, many people reason, why bother to waste your time hanging out in jury rooms? (Victims and witnesses get the same abusive treatment, with no two-week time limit.)
The communitarians forget that you don't exhibit "responsibility" by complying with a court order backed by criminal penalties. Responsibility doesn't exist without choice. And it is the choices juries make that are disturbing. Juries are shirking their responsibility to make moral judgments. It is easier to make excuses.
We have come to the logical extension of the politics of victimhood, a politics that pervades not only high-brow opinion magazines and academic seminars but also the talk shows and advice columns that reflect and direct mass opinion. Bombard ordinary Americans with the notion that everyone is a victim, and a lot of people will start to believe it. The implication of universal victimhood is universal innocence. No one is guilty, no matter how heinous the crime.
And to fundamentally alter the criminal justice system, it isn't even necessary for everyone—or even most people—to believe in universal victimhood, only for the concept to be pervasive. On a criminal jury, you don't need a majority; you need unanimity. A good defense lawyer will screen out potential jurors obviously willing to make moral judgments. The dynamics of the jury room, and of American culture, will take care of the rest. Portia teaches mercy, Perry Mason innocence. Twelve Angry Men said nothing about holding out for conviction.
Paradoxically, the only crimes not subject to the victimhood defense are those that have no victims. If you're carrying illegal drugs, it doesn't matter if you were an abused child or a member of an oppressed racial group. You can't argue that the drugs deserved to be used or that you had a good reason for taking them. No sympathy is allowed. The drugs speak for themselves. Case closed.
Many people who oppose drug laws argue for giving juries explicit discretion to ignore them. They say that juries used to be considered judges not merely of the facts but also of the law, that juries can and should have the power to deem laws too odious to enforce.
I am sympathetic to this position and certainly to its goal of curtailing the punishment of consensual acts. But encouraging jurors to rewrite the laws is wrong. Justice requires objectivity. It entails a promise that everyone is equal before the law, that a defendant's sob story or a victim's obnoxious personality won't determine the outcome of a case. It demands that juries decide not with their hearts but with their minds. Binding juries to honor the law—as the judge in the Menendez trial did when he told jurors that the evidence precluded acquittal—makes it more likely that jurors will fulfill that responsibility. It helps jurors check their prejudices and emotions; it forces them to give reasons for their decisions.
But it is not a fail-safe device, only a help. A government of laws cannot stand against a people who can see only victims, against jurors who believe neither in criminals' responsibility nor in their own. Once, runaway juries driven by rage gave us legal lynching, a complement to the illegal kind. They would not reason, so they could find no reasonable doubt.
Today, their successors feel not rage but pity, not hatred but empathy. They, too, do not reason, but neither do they doubt. They can look at proof of guilt and still find innocence—innocence in the victimhood of the victimizer.
Many of the ordinary people who make up juries desire neither justice nor revenge. They desire absolution, the obliteration of all responsibility. We have created a culture of excuse, and it has conquered our courtrooms—not by judicial fiat but by the most democratic of means. Our juries have gone soft on crime.
This article originally appeared in print under the headline "Lack of Conviction".