The delivery of the black-letter law has not been satisfactory to both the society and the jurors. Jurors coming to the box may walk out dissatisfied with how the verdict is delivered and the verdict itself. Of interest in particular is how the law deals with death penalty and insanity cases. Commonsense justice is viewed as a possible alternative to resolving these cases, as it is considered to be rational and highly nuanced. This paper will focus on understanding the theory of commonsense justice, the view of jurors of commonsense justice versus the black-letter law, and comparing the outcomes of using these laws in resolving insanity and death penalty cases.
Common sense justice is a reflection of what people think is just and fair. According to Finkel (1995), there are two types of law; the 'law of the books' which refers to the constitutional law, the enactments by parliament, the law that evolves through common law cases and appeal decisions, taught in law school and applied in the courts and common sense justice (p.669). Different from the law of the books, common sense justice refers to the pre-existing beliefs about laws, the legal system and other issues that may be relevant to the trial process bringing with them to the jury box when judging both a defendant and the law. In essence, commonsense justice is concerned with people's everyday concepts of fairness and justice. The jurors find it hard to apply black- letter laws since they are inconsistent with what they know as fairness and justice. The view that commonsense justice is that judges, being the conscience of society ought to use what society views as fair and just as opposed to the dictates of black-letter law which is not in tandem with the conscience of society.
Theory of commonsense justice
There was evidence in some cases jurors were not following the law. The jury is required to strictly follow the instructions given to the judge and reach a verdict based on evidence and the law. This is a consequence of their coming into knowledge that the black-letter law in some varying degrees is in disagreement with commonsense law. Therefore jurors tend to reject these rigid and objective rules and adopt subjective views. Though jurors are given instructions to make judgment using the objective criteria, they often resort to base the judgments on the subjective views of defendants and viewers. In addition, jurors base judgment on context and construing, by using hindsight to justify events and interpreting facts in order to identify what led to the cause as well as ascertain the intentions. Following this, critics have claimed that jurors do not comprehend the judge's instructions while others assert that jurors deliberately disregard or nullify the judge's instructions. .
Centrally and critically, Finkel adds, the question that arises is whether we 'should follow the path laid by community sentiment, or should community follow the path the law has laid?' (p.1). It is what ordinary people think the law ought to be. Hence, Finkel (2001) says that the courts have turned gradually to objective ways of considering community sentiment, in order to determine if the punishment for a crime disproportionate at least, according to the community (p.4).
The quest for common sense justice is prompted by the observation that common sense justice and the black-letter law could be disparate in their view of human nature, culpability and punishment. The differences lie in the framing of the cases, how the delimiting of the factors of culpability is done and how the factors are weighed. Admittedly, Finkel (1995) says that common sense justice culpability analysis does not match that of black-letter law. CSJ harshest critics have described it as fusing, confounding and confusing, especially when a wrongful decision was made. On the other hand, critics of black-letter law insist that the approach used in the structures that provide justice in the society could themselves be the source of oppression, since the innocent party may be to a case falsely accused. In fact, Kumachiro (2004), gives commonsense even a wider perspective when he intimates that oppression sometimes manifests itself in ways that are easily recognized and condemned by most people (p.15). There is more to oppression than what we know: injustice based on the structure of everyday life, exemplified by the assumptions underlying major and minor institutions, rationales that support personal and collective choices. Kumachiro (2004) argues that those who benefit from the decisions made in courts and other structural institutions by accepting the dominant group 'common sense' are actually abusing justice, while they remain oblivious of the more dangerous and pervasive type, which is structural oppression (p.102).
Application of commonsense law to death penalty and insanity trials
Common sense justice has been applied in cases involving insane defendants with a degree of success. According to Mitchell(1999), Common sense notions of justice stipulate that those who create the conditions for their own defense should be held more culpable, exemplified by those whose incapacity has been caused by automatism or self-induced intoxication (p.597). The law holds that insanity can only be used as a defense if at the time of committing the crime; the defendant had a mental condition that impaired his cognitive abilities to the extent that the defendant was unaware of the nature and the quality of the act, or the knowledge that the act was wrong. Mitchell (1999) argues that according to this law the defendants are treated as innocent actors under the influence of a condition over which they have no control (p.598). The results of a study done with 263 mock jurors without instructions, who were required to use their own best judgment to decide four insanity cases showed that jurors do make discriminations among cases in terms of constructs, which are relevant, complex and flexible (p.287). This realization opens the door for the use of commonsense justice.
Possibilities of exclusion of fault upon the raising of the insanity defense were suspected. Mitchell (1999) interprets that; a defendant's criminal responsibility may to a certain extent be under autonomous control (p.598). This is due to the fact that not all defendants with mental disorder lack autonomous component in their judgment. Meta-Responsibility (MR) is the term used to describe the notion that a defendant's criminal responsibility could to some degree be attributable to autonomous control. In that connection, it .
A Case of meta-responsibility arises from such issues as medication non-compliance, substance abuse, which results from not taking responsibility over one's situation. This is termed as 'consensual' meta-responsibility. According to Mitchell, (1999), 'Purposive' meta-responsibility arises from the antipsychiatric notion that the mental disorder represents strategic and willful behavior on the part of the patient in an attempt to influence his personal and social situation (p.598). The law that stipulates when insanity can amount to a defense was accepted only to the extent that the absence of mental control on the side of the defendant is not produced by his own default.
Causal process is observed only in intoxication that has brought out the insanity in appellate cases, even when there is adequate legal machinery to consider absence of mental control inflicted on others. Involuntary intoxication is excused but in a case of voluntary intoxication, one is deemed to have created the conditions for his defense hence he will be criminally answerable to the injury he may do while in this condition; and will be found of recklessness. In reference to Mitchell (1999), the case R. v Caldwell (1981), ruled that self- induced intoxication is not a defense to any crime in which recklessness is enough to constitute the requisite mens rea (p.600).
The law gives the jury sentencing discretion when it comes to capital offences. The eighth amendment states the circumstances under which a person's life may be terminated According Donohue (2006), data analysis on the deterrent effect of death penalty, the results were not significant. While the argument that death penalties is qualitatively reasonable, its quantitative significance may be minimal (p.3. Social science has shown that the act if killing is for others to learn, or deter others from killing, then, the mission of the death penalty is lost, since it does not produce the anticipated results.
As far as death penalties are concerned, common sense justice theories of causation and culpability appear rational and highly nuanced. In reference to Finkel (1995), common sense justice is at once legal, moral and psychological (p.669). The verdict is that the jury should play a role in correcting the legal excesses of the legislature using commonsense justice since the latter is 'more deliberative and conscious, and quite sensitive to foundational issues of justice (p.5).
In conclusion, Baldus' assertive position that the death penalty experience for the last twenty years was a failure and that the system should be declared unconstitutional sounds convincing. This position was influenced by the cumulative evidence of arbitrariness, discrimination, and miscarriage of justice documented over the twenty years considered.