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COLUMN RIGHT/ VIRGINIA I. POSTREL

Pity in Excess Is Warping the Jury Process : Our culture of victimhood has bred a culture of excuse for even the most wretched crimes.

January 30, 1994|VIRGINIA I. POSTREL | Virginia I. Postrel is the editor of the Los Angeles-based Reason magazine.

Americans are worried--and increasingly angry--about violent crime. They want more prosecutions and tougher sentences. They demand more cops on the street and more life--or death--sentences for more crimes. "The attitude of ordinary people indeed is essentially vindictive," writes Paul Johnson in the Wall Street Journal. "They desire revenge."

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 "Beyond a reasonable doubt" has been superseded by "beyond any shred of any excuse."

The jury system empowers ordinary Americans as judges of the facts of a case. Jurors are supposed to draw on their common sense and experience--the standards of "the reasonable person"--to assess the testimony of witnesses and arrive at a judgment of the truth. This process provides a check against runaway prosecutions and corrupt judges, and against the jaded attitudes that too much contact with the criminal-justice system can produce in the best of public servants.

But the jury system has its down side. For good or ill, it brings popular culture into the courtroom, diluting the claims of justice with the prejudices of everyday life. Once, those prejudices produced lust for vengeance; today, it's sympathy for defendants. From the police officers who beat Rodney King to the rioters who attacked motorists at Florence and Normandie, from the Menendez brothers to Lorena Bobbitt, defendants in high-profile cases are finding juries ready and willing to accept excuses for the most wretched behavior.

The jury that found Lorena Bobbitt not guilty did so after role-playing the attack on her husband. They themselves would not have behaved as she did, one said, but they decided that she couldn't help herself. She was a victim.

We have come to the logical extension of the culture of victimhood, a culture 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 corollary 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--and high-profile cases attract the best--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. "Twelve Angry Men" said nothing about holding out for conviction.

Justice requires objectivity. It entails a premise 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 them that acquittal was not one of their options, given the evidence--should make 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 their own. Once, runaway juries driven by rage gave us legal lynching, a complement to the illegal kind. Today, their successors feel not rage but pity, not hatred but empathy. 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 and, therefore, of all guilt. We have created a culture of excuse, and it has conquered our courtrooms, not by judicial fiat but by the most democratic of means.

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