72 Fla. L. Rev. 1023 (2020)
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Criminal ProcedureJudicial Systems


The American criminal justice system is fundamentally democratic
and should reflect an ideal of citizenship that is equal, participatory, and
deliberative. Unfortunately, the outcomes of criminal cases are now
almost always determined by professionals (prosecutors, defense
attorneys, and judges) instead of by juries. This overly bureaucratized
system of adjudication silences the voice of the people. A better system
would strengthen “criminal justice citizenship,” which refers to the right
of the citizenry to participate, directly and indirectly, in the criminal
justice system and to deliberate in its workings.

The three key principles of criminal justice citizenship are
membership, participation, and deliberation. Membership refers to who
can participate and whether they can participate on an equal basis. Where
the justice system adheres to this principle, people enjoy a greater sense
of belonging, solidarity, and trust in government. Participation refers to
public participation in democratic processes, such as jury service.
Deliberation refers to structured dialogues between lay persons that affect
governmental decisions. Institutions and procedures must be designed to
give the people an important role in government, but the nature and extent
of that role should be limited by other considerations, such as procedural
accuracy and preventing racial discrimination.

This theory of criminal justice citizenship has important applications
to jury trials. Regarding membership, providing broad and equal
opportunities for jury service is necessary for democratic legitimacy and
fair and effective deliberations. Regarding deliberation, jury trials need
to be more transparent; the prevailing procedures of jury deliberations
need to be modified; and unanimous verdicts must be required to protect
the voice of potentially marginalized jurors. Regarding participation, jury
trials are so rare that it will be necessary to improve criminal justice
citizenship by democratically reforming other aspects of the criminal
justice system, such as plea bargaining. The overarching principle is that
the people need a more significant role in criminal adjudication, not only because popular participation is good for defendants, but also because it
strengthens American democracy.