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.
Judge Haskell A. Holloman Professor of Law, University of Oklahoma. For helpful comments and criticisms on previous drafts, I am indebted to Vanessa Edkins, Andrew Guthrie Ferguson, Adam M. Gershowitz, Carissa Byrne Hessick, Joshua Kleinfeld, Nancy J. King, Matthew L. Jensen, Thea Johnson, Michael J.Z. Mannheimer, Sara Mayeux, Alan C. Michaels, Robert Mikos, Jamelia Morgan, Ngozi Okidegbe, Christopher Slobogin (including for hosting the Fourteenth Annual Vanderbilt Criminal Justice roundtable), Kelly Sorensen, Dean A. Strang, and George C. Thomas. I also wish to thank Selena Kitchens, Broderick Johnson, and every student at YLPR who improved this article, and Anamayan Narendran, both for excellent research assistance and for many a great conversation about football. Finally, I thank Shawnda and Katrina Henderson. We sat down at our kitchen table and sketched out a jury veto, and the concept will always rightfully be ours—yours every bit as much as mine.
