Of Rebels, Rogues and Roustabouts: The Jury's Second Coming

Abstract:     
This article examines the role of the jury in a post-Apprendi justice system. Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences. I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability. In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact. Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability. I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

Working Paper Series