The Jury Veto

48 Pages Posted: 11 Aug 2021 Last revised: 9 Jun 2022

See all articles by Stephen E. Henderson

Stephen E. Henderson

University of Oklahoma - College of Law

Date Written: 2022


While the American civic religion is to be distrustful of government, feelings of discontent regarding our systems of criminal investigation and adjudication feel historic. And while those systems are capable of great carnage en route, the endgame is, ultimately, criminal punishment. Yet before punishment can be imposed, every prosecution—and therefore every defendant—is meant to encounter a potential “circuit breaker”: the jury. I propose that we re-inject this democratic voice into our criminal adjudications, but through an entirely novel structure: the defendant (and perhaps the prosecutor) would have the choice of invoking a jury empowered to ‘veto’ any judicial sentence. By carefully designing the ex-post system, including to discourage over-invocation, we could provide more democratic results in individual cases, hold prosecutors to their charging threats, and obtain a meaningful sense of whether—as many of us believe—our institutions of criminal justice are dangerously out of touch with popular conceptions of what ought to be.

Keywords: jury, adjudication, reform, justice, democracy, criminal

JEL Classification: K14

Suggested Citation

Henderson, Stephen E., The Jury Veto (2022). 40 Yale L. & Pol’y Rev. 488 (2022), Available at SSRN: or

Stephen E. Henderson (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)


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