Juries and the Transformation of Criminal Justice in France in the Nineteenth & Twentieth Centuries (review)

This book is a careful and thorough analysis of a little-studied phenomenon in French criminal justice history. A French historian, Bernard Schnapper, has published extensively on juries and the family in work that covers some of the same ground as Donovan, but this book provides a more comprehensive view of the legal, procedural, and political history of the jury in France since the Revolution. His book is distinguished by his very careful analysis of statistics and criminal procedure. He astutely follows the historical variations in the way judicial officials gathered data on crime and punishment and accounts for these changes in his generalizations. He incorporates the essential contemporary debates on the evolution of the jury and, as an added bonus, Donovan includes a considerable amount of comparative material from Britain and the U.S., the two other countries in which the jury system has been of paramount importance.

Previous studies of the modern French criminal justice system have not focused so much on the jury as an institution as on aspects of jury opinion, particularly as this has influenced the outcome of particular cases or kinds of cases or as a reflection of particular trends in the larger culture of crime and punishment. Donovan rightly argues that looking at juries only as expressions of larger political and cultural movements undervalues the procedural and legal environment within which juries worked, especially the enduring tensions between the judicial professionals, whose aim was to enforce the law and make justice more efficient and rational, and juries, whose members are often influenced by class, gender, racial or ideological bias in arriving at decisions. These different agendas were in conflict from Revolutionary times, when the jury system was adopted originally as a way of opposing tyranny. The system continued to serve this function throughout the nineteenth century as long as executive power sought to muzzle a free press or curtail political opposition, but juries also acted to acquit or lessen the punishment of individuals when the law or the punishment it decreed was regarded as too harsh. In these cases juries practiced “sanction nullification”, in effect weakening or abridging laws that legal and political administrations utilized to maintain public order and morality.

Donovan’s main theme in this book is to track this conflict from the Revolution to the 1930s and 1940s, when the autonomy of the jury was finally and decisively curtailed by judges and administrative professionals in the procedure called échevinage, in which juries were joined, and inevitably influenced in their deliberations, by the three magistrates who presided over the Assizes Court. However, as Donovan points out, despite appearances to the contrary, efforts to limit the powers of juries had been going on for over a century with considerable success. Though juries gained the right to apply extenuating circumstances as early as 1832, which allowed them to reduce the full application of punishments in particular cases, politicians and legal professionals followed strategies that took certain categories of crimes away from Assizes Courts and gave them to tribunals overseen by magistrates—a process known as correctionalization—where higher rates of conviction could be obtained. In the face of increasing rates of acquittals by sympathetic juries, prosecutors learned to bring to trial only those cases for which solid evidence existed, and tried others on lesser charges for which they were more assured of a conviction. The process that drove all these developments, Donovan argues, was the practical amelioration of the sometimes Draconian penalties required for particular crimes by the Napoleonic Code, which were in conflict with more humane conceptions of punishment that evolved in the course of the nineteenth and twentieth centuries.

Donovan notes carefully the oscillations in the rates of convictions and punishments that followed crime panics, changes in political regime, and the gradual acceptance by judges and juries of mental and emotional disabilities that diminished personal responsibility, and he weighs all these...