Supermajoritarianism and the American Criminal Jury

We've been talking about supermajoritarianism and the American criminal jury here; now you can read my paper on the subject here.  It's appearing in the Hastings Constitutional Law Quarterly in very short order.  I have this month to clean it up, so e-mail me privately with comments and concerns. 

Here's the abstract (again):

This piece argues for a supermajoritarian decision rule for conviction by a criminal jury and a simple majority decision rule for acquittal. It rejects requiring high degrees of consensus for acquittals above the majority threshold so that we can (1) give due respect to the presumption of innocence, (2) lower the number of hung juries, and (3) incentivize deliberation. By lowering the number of jurors the minority (presumptively for acquittal) must convince to get its desired verdict during the deliberation stage, we are most likely to encourage members of the minority to try to convince a few jurors in the supermajority (presumptively for conviction) to achieve their verdict preference. If a small superminority had to convince a full supermajority to get its desired result, it would much more likely keep quiet and would not have many incentives to participate in deliberation; as soon as the members of the minority see that they are outnumbered by a supermajority, they are unlikely to believe they can turn the verdict around. But if they only need to convince a few jurors to get their way, they will engage fully to achieve an acquittal.

The Article’s main argument, however, is to support a supermajoritarian rule for conviction, finding supermajoritarian rules to dominate the American political and constitutional landscape. The Article investigates the puzzling persistence of unanimous decision rules for both conviction and acquittal in the face of the American commitment to supermajoritarianism generally. It argues that many different kinds of decision rules can be properly considered to be democratic—and that institutional context and certain external cost considerations can help us select an appropriate rule. While exposing the United States as a supermajoritarian regime, I am able to offer a coherentist account for why the criminal jury should adhere to supermajoritarianism in the context of criminal jury convictions but not acquittals. This decision rule hybrid has never been argued for in the context of the American criminal jury: supermajority to convict and majority to acquit. Usually those committed to giving effect to the presumption of innocence suggest that we simply allow acquittals to be entered for any jury that cannot reach the threshold required to convict; this Article offers a new asymmetrical rule that should command widespread support.

UPDATE:  I see that Doug Berman has weighed in here with a very thoughtful response to me (& Doug).  In short, he argues that since 90% of criminal convictions result from plea bargaining and not jury trials, those of us interested in the jury should focus our discussions on what a change of rules might do to the bargaining process pre-trial.  Nice point.