The case of Salim Hamdan has been on my mind all week. I share the wonder at the jury’s rejection of the more serious conspiracy charge and its imposition of a rather modest sentence but I don’t want to romanticize the Hamdan jury or result. I think history will come to regard this case as emblematic of our era's signal failure of law. This military jury, however, gave the government a nice shove. Their final and unreviewable judgment rejecting some of the charges reflects the real power vested in American jurors. Although the mixed verdict introduced a note of ambiguity, the result is still a testament to the institution of the jury and to these jurors’ courage and clear sightedness.
Of course the shove was not as hard as it would have been if the Government actually felt itself bound to release Mr. Hamdan soon, as the judgment appears to require. They, however, prefer their backup plan of holding him as an enemy combatant to obeying the rule of law. But I still think the jury verdict is important and interesting, as one may more fully appreciate by considering these basic facts of modern American criminal practice:
First of all, everyone is guilty of something. In the era of overcriminalization, criminal law casts a very wide net. Bill Stuntz taught us this.
Given the breadth of our substantive criminal law and our very broad rules of accomplice and co-conspirator liability, a reasonably talented prosecutor should be able to find some charge on which a given person can be convicted. If the person happens to work in a regulated industry or hold a professional license of some sort, it is like shooting fish in a barrel. But if those circumstances don’t present, you can always start an investigation and see if the subject will become reactive - something useful usually comes out of that.
Al Capone and Martha Stewart are the poster children for this approach. Of course, Al Capone was vastly more culpable than Martha Stewart. In both cases, however, as in Hamdan, the result reflected the plasticity of contemporary criminal law. Capone was convicted of tax evasion, not being a gangster, Stewart was convicted for lying, not stock manipulation and Mr. Hamdan was convicted of a garden variety criminal violation (and a very modern, narrow one that reflects just the kind of statutory growth Stuntz is talking about), not being a war criminal, although he was tried before an extraordinary military tribunal created to hear just such charges. We have come a long way from the Olde Common Law, when there were a few crimes and they were almost all malum in se.
Something that may be a little more inside baseball, is the notion that convicting people who are already incarcerated is free, or perhaps even a good deed, because then you can move on to sentence and release them. In the nitty gritty practice of criminal law, judges and lawyers view people who are incarcerated before trial in a fundamentally different light than those who are at liberty on pretrial release. From the incarcerated defendant’s perspective, by the time they get a sentence of time served or a brief additional sentence following conviction, it can feel like a real win, as they can see to the end of the worst part of their ordeal.
On the other hand, the person at liberty who receives a favorably brief sentence of incarceration still has the shocking transition to imprisonment and will likely experience that result as a great defeat and punishment. So if, as in Hamdan, someone is detained for just over five years, and all that results is a 66 month sentence, then the case was not worth severe punishment. In this way of thinking, the marginal sentence, over and above the credit for time already served in pretrial detention, is the real result.
And I think all of this was reasonably clear to the jurors, even with all the procedural irregularities - the use of illegally obtained evidence, the admission of impermissible evidence, the restrictions on defense counsel, the specter of command influence and all the other violations of the most basic notions of fair treatment that have characterized this whole process. Despite creating their own system and getting judgment from members of the military rather than civilians, all those government lawyers still received, as the Miami Herald labeled it, a "stunning rebuke".
I do not strongly feel the democratic impulse that has come to dominate so much constitutional discussion in the academy. I think I appreciate the attraction of foundational legitimacy based upon some collective act. It sounds like Jefferson and Jung, two very great thinkers. But I just don’t think the collective unconscious is our ultimate ruler and I fear the majoritarian cast this thinking has taken on in recent years, so maybe I don’t fully appreciate the idea. The result in Hamdan, however, makes me think about the question again, as it exemplifies the protection jurors offer against tyranny and expresses the democratic impulse to limit sovereign power, which I greatly admire.