Getting Away with Murder

Commentary, April 1994.


Trial by a jury of one’s peers is a venerable institution. Like Blackstone before him in England, the American Joseph Story, in his justly famous Commentaries on the Constitution (1833), traced it back to 1215 and Magna Carta, and, again like Blackstone, proceeded to quote the relevant passages from the original Latin: “nisi per legale judicium parium suorum, vel per legem terrae,” and all that. “When,” he continued, “our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance.” Especially valuable in criminal trials, the jury system had a great object: “To guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and invictiveness on the part of the people.”

Even as Story was writing this, however, Alexis de Tocqueville, the most perspicacious among observers of American institutions and practices, found reason to question the utility of juries. True, they served an important political purpose; like the town meetings where a New England resident learned the art of government by being required to practice it, the jury served as a school for citizenship: “By obliging men to turn their attention to affairs other than their own, it rubs off that private selfishness which is the rust of [democratic] society.” But as a judicial institution, one that “ensures a good administration of justice”? About this, Tocqueville had his doubts.

He would have graver doubts today. There has, of course, never been any guarantee that juries will convict the obviously guilty or acquit the obviously innocent–among the latter, think, for example, of Ozie Powell, Haywood Patterson, and Charley Weems (the Scottsboro Boys), poor blacks wrongly convicted of rape by an Alabama jury in 1931; or of the not-so-poor but Jewish Leo Frank, wrongly convicted by a Georgia jury in 1913 of the murder of one Mary Phagan. Juries can be manipulated, or terrorized–or they can simply be prejudiced.

American Enterprise Institute