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Rebuilding the American Jury
July 28, 2013 2:00 PM   Subscribe

Twelve Absent Men: Rebuilding the American Jury. "Juries hear only 4 percent of criminal trials in America. Their decline has fostered radical punitiveness, but reforms and novel institutions are breathing new life into the jury and civic participation more broadly."
posted by homunculus (54 comments total) 25 users marked this as a favorite

 
If you want more criminal cases to go to trial, the most obvious, most straightforward approach is to change criminal sentencing. There are plenty of ways to tweak it, but right now the thumbnail version is that the minimum and maximum criminal sentences for most felonies are high enough that the felony defendant takes a huge risk by going to trial if the prosecution has a halfway decent case. Very commonly it's the difference between a few years of jail and/or probation versus 20+ years of prison. The combination of voters wanting both legislatures and prosecutors to be tough on crime has ratcheted up these penalties over time, and unless there are big gaps in the prosecution's case, it's tough to rationalize taking a felony case to trial.

On the civil side, I think it's more a product of the increasing complexities of most cases, combined with savvier clients on both the plaintiff and defense side. Most civil cases are about money, and cases don't settle because the amount the plaintiff thinks the case is worth is too far away from what the defendant thinks the case is worth. With more and more information about jury pools and prospective verdicts, litigants are getting better at predicting the actual value of a case if it goes to trial. The better you can handicap the case, the better you can determine whether trial is worth it, and the more likely that the parties will settle at somewhere near the case's expected value (expected damages x odds of a plaintiff's verdict = value, in rough numbers).

Meanwhile, the more complex a case is, the more expensive it is, with additional lay testimony and way more expensive expert testimony. The more expensive the case is to try, the more likely the litigants will be to take strong steps towards settlement. If a trial will be a one-day bench trial in front of a judge it's a lot easier to throw your hands up and roll the dice on trial than it is to pay out costs on a three-week jury trial.

One of the suggestions the article makes to streamline the process is to trim down the jury selection process; that strikes me as a particularly bad idea. Most of the provisions of the selection process are intended (and generally succeed in) striking from the jury jurors that will not weigh the evidence, but will rather reach a decision based on their own passions or prejudice. No aspect of the system is served if that's how verdicts are reached; quicker trials are of no value if they do not reflect the lawful weighing of the evidence.
posted by craven_morhead at 2:18 PM on July 28, 2013 [8 favorites]


Oh, I'm glad you posted this as its own separate post! This whole concept is a really interesting one.

I agree that minimum sentencing does drive some of this, though.
posted by corb at 2:36 PM on July 28, 2013


Removing plea bargaining would be a cure worse than the disease.

The present system in the overwhelming majority of cases involves lifelong reprobates whose guilt is not seriously questioned by anyone, and judges, prosecutors, police and defense counsel who deal with each other every day all day long, attempting to find the right penalties taking into account the nature of the offenders and their offenses.

Remove the incentive to the plea bargain and then you create a fundamentally capricious system: a few people luck into a dumb, sentimental or biased juror, the rest are convicted, and subjected to inflexible minimum sentences.

I don't even know that such a transformation would even serve to benefit those with a clean record and substantial defense. In the present system, a strong claim to innocence is rare and where the system is not corrupt (most places and most people, believe or not) it attracts the highest of seriousness from everyone involved. The very fact that a plea bargain did not occur sends a juror the message that either the prosecution is demanding an extraordinarily stiff sentence or the defendant has a strong case for innocence.

Create an incentive where every perp has no downside to saying "I didn't do it" and the credible claims of innocence get lost in the shuffle, and will start to be ignored by everyone in the system...
posted by MattD at 2:37 PM on July 28, 2013 [2 favorites]


I recently sat on a jury in a criminal trial. One thing that stood out to me was the manner in which the prosecution piles-on the charges. It's like a "throw everything at the wall and see what sticks" approach, no matter how ridiculous or inapplicable some of the charges seem. The prosecution is almost guaranteed to nail the defendant on something, barring a complete fuck-up by the prosecutor.
posted by Thorzdad at 2:41 PM on July 28, 2013 [9 favorites]


Timely for me. I understand and appreciate the duty of serving on a jury, and I'm fascinated by the process. The difficulty is making it work as part of the typical rush of daily life. Spending a few days for a typical trial is a huge disruption... spending weeks for a serious trial is impossible.
posted by letitrain at 2:44 PM on July 28, 2013


I did an interview with the author, Albert Dzur, and John Gastil last week. Skip the parts with me in them, and take a look at the last two minutes, which are pretty great.
posted by anotherpanacea at 2:51 PM on July 28, 2013 [1 favorite]


We are limited by the reach of our own imaginations. Most of the world's countries don't have jury trials except for the most serious of offenses and they seem to do fine. Lots of countries don't allow plea bargaining either, and yet somehow they resist the urge to send people to jail for decades over offenses where no one was seriously harmed.

The problem with our system is the law itself. Jury trials are a big, fat non-functional bandaid for a system of criminal justice that doesn't really work.
posted by 1adam12 at 3:10 PM on July 28, 2013 [9 favorites]


Three kinds of reform have a base of support among academics and practitioners. First are “active jury” reforms, which permit note taking, deliberation during trial breaks, and juror questioning of witnesses. [emphasis mine]

I remember reading a story about some jury trial gone haywire, and the part that shocked me was the off-hand mention that note-taking by the jury was not allowed.

Why? Is the general prohibition against note-taking due to the fact that remarks and questions will sometimes be stricken from the record, and juror note-taking would serve to undermine this? Or is there some other reason?
posted by UrineSoakedRube at 3:14 PM on July 28, 2013


Regarding juror note taking, more and more states are moving to allow juror note taking, but I think the old prohibition was based on a number of things, including the worry that jurors would rely on stricken evidence, jurors relying more on their notes than on their recollection of the evidence (though I never quite understood that distinction myself), and the worry that jilted litigants would try to overturn unfavorable verdicts by trying to claw back the notes, sift through them, and pick out evidence of juror misconduct. As for the last worry, most jurisdictions that allow note taking require the jurors to leave their notes in the jury room and promise to destroy all of the notes at the end of the trial.
posted by craven_morhead at 3:20 PM on July 28, 2013 [5 favorites]


Thanks, craven_morhead, that makes sense, and the potential for overturning isn't something I would have thought of.

I have no problem with jurors' notes being taken by the court at the trial end (I'm not so sure I agree with the destroying part, but I have no legal training and a lawyer may well have a good explanation for that). But I would be tempted to complain bitterly if I were chosen as a juror then told that I could not take notes.
posted by UrineSoakedRube at 3:25 PM on July 28, 2013


I think the old prohibition was based on a number of things,

I always assumed it was based on the obvious fact that multi-tasking makes for bad results. After all, they can always request a transcript during deliberation. (They can, can't they?)
posted by IndigoJones at 3:28 PM on July 28, 2013 [1 favorite]


After all, they can always request a transcript during deliberation.

Nope. Not in any jurisdictions I'm familiar with anyway. Common misconception though. I think your multi-tasking issue may be one of the reasons for the prohibition though; thinking that jurors won't pay attention if they're taking notes (or doodling). In my experience the opposite has been true though; jurors allowed to take notes generally pay better attention, if anything.
posted by craven_morhead at 3:35 PM on July 28, 2013 [3 favorites]


Nope. Not in any jurisdictions I'm familiar with anyway. Common misconception though.

Ouch. That seems really designed to push a charismatic lawyer able to phrase things memorably for the jury is more important than the actual evidence presented.
posted by ArkhanJG at 3:57 PM on July 28, 2013 [5 favorites]


"Juries hear only 4 percent of criminal trials in America...."

In other words, the vast majority of criminal defendants plead guilty, saving taxpayers an enormous amount of money and preventing courts from being even more backlogged than they already are. Of course, the more backlogged the courts are, the more time defendants spend in jail before being convicted (or while they have an appeal pending).
posted by John Cohen at 3:57 PM on July 28, 2013 [1 favorite]


In the trial I sat on, we were allowed to take notes, but we had to leave them locked in the jury room during trial breaks. This is Indiana. Obviously, ymmv.

Another interesting (and, imho, good) thing about Indiana is that it's one of the few (maybe 2?) states that allow jury nullification. It's written law here. This quirk came into play in the trial I sat on. It was a meth trial. Indiana law states that if you assist in any way in the production of meth, you are as guilty as the guy cooking the meth. So, in this trial, the prosecutor was trying to hang some poor sucker who had just moved into this flop house where, unknown to him, some other tenants were cooking meth that night. Earlier in the day, the guy running the operation asked the new guy to wash a bunch of mason jars, and then bag up a bunch of trash that was laying around in a back room. Innocent enough, but the jars were later used to cook meth, and the trash turned out to be disassembled alkaline batteries and empty sudafed blister packs, key ingredients. The guy was oblivious, but the prosecution had a real hard-on to hang him for assisting.

During our deliberations, we had a real hard time dealing with the definition of "assisting". After talking it over for a few hours, we sent a message to the judge asking for a more exacting definition. They hauled us into the courtroom for a talking-to by the lawyers, and that's when we learned about jury nullification. Basically, if we, as a jury, felt that the law was bullshit, we could ignore it.

Out of the twelve of us, I think only two definitely thought he was guilty. About eight of us thought he was completely not guilty. The rest thought he wasn't really guilty, but he was guilty according to the law. We ended up hanging.

Though, we were unanimous that the prosecutor was a huge condescending dick.
posted by Thorzdad at 4:03 PM on July 28, 2013 [6 favorites]


That seems really designed to push a charismatic lawyer able to phrase things memorably for the jury is more important than the actual evidence presented.

Seconded. I mean damn, if the jury only has to rely on their memory that seems like it gives the weaker side a huge incentive to try to drown out the other side's arguments in a flood of crap. (I'm not going to refer to the Chewbacca Defense because I have come to loathe South Park references. I have had it up to HERE with people saying basically "ManBearPig HAR HAR.")
posted by JHarris at 4:20 PM on July 28, 2013 [1 favorite]


That seems really designed to push a charismatic lawyer able to phrase things memorably for the jury is more important than the actual evidence presented.

Charismatic lawyers would certainly like to think so. Hard to say if its true or not, but speaking to judges who have presided over lots and lots of trials, it sounds like even under the old no-note-taking system, most judges are of the impression that the jury generally gets it right, and while impressive lawyering can have an impact on edge cases or can have slightly bigger effects on the amounts of verdicts, it's tough to get a jury to do a complete 180 based on charisma.
posted by craven_morhead at 4:26 PM on July 28, 2013 [1 favorite]


In the trial I sat on, we were allowed to take notes, but we had to leave them locked in the jury room during trial breaks.

Me too. California, murder trial. What an experience.
posted by rtha at 4:40 PM on July 28, 2013


But it just sounds like a stupid thing, not letting the jury look at a transcript. What is the reasoning behind that?
posted by JHarris at 4:48 PM on July 28, 2013


But it just sounds like a stupid thing, not letting the jury look at a transcript. What is the reasoning behind that?

I'm not sure that I can speak for the entire American Jury System, but I think some reasons are that at the time of the trial a court reporters' transcript contains plenty of errors which aren't rectified until the transcript is certified, which can be weeks or months after the trial. Allowing access to the rough transcripts could lead to error if the rough has some typographical errors that could become relevant. Also, in more and more jurisdictions, there is no transcript taken by a live court reporter in civil cases; everything is recorded and the parties can have the recording transcribed at their expense after the trial if they believe it warranted (as far as I know most, and maybe all, jurisdictions have retained live court reporters for criminal trials).

Allowing transcript access may also lead to very long deliberations where the jurors are pouring over the entire transcript to find support for whatever argument they may be making in deliberation.
posted by craven_morhead at 4:53 PM on July 28, 2013


But it just sounds like a stupid thing, not letting the jury look at a transcript. What is the reasoning behind that?

Well, transcripts are just that, a transcript of everything said, the way it's said. Every um, ah, y'know, slang term, poor grammatical structure, etc. The meaning of what's being said could get lost in the words.
posted by Thorzdad at 4:55 PM on July 28, 2013


Jurors are usually entitled to have portions of the transcript read back to them if they wish.

There's an important technical reason why jurors may not have had full transcripts printed out for them: they weren't available. Court reporters use special stenography machines and traditionally typed up their output into formal transcripts at some very significant remove from the trial, or sometimes not at all if no one ever ordered a transcript, which was often quite expensive. The court reporter can always "read back" from the steno output on demand though.
posted by MattD at 4:55 PM on July 28, 2013


While they don't have access to the transcripts in the jury room, frequently, in some jurisdictions, should the jury request, the judge will call everyone [jury, lawyers, defendant, etc] back into the courtroom for the court reporter to READ the section of the trial at issue to them.
posted by atomicstone at 4:58 PM on July 28, 2013


It costs a shitload of money to have daily transcripts created. Jury trials in general cost a shitload of money.

But it also costs a shitload of money to keep somebody in prison for years.
posted by mikeand1 at 5:42 PM on July 28, 2013


After all, they can always request a transcript during deliberation.

I'm not sure if this is true, but I was told by a lawyer that transcripts are only required once the trial gets to a certain seriousness - before that, the defendant must pay for the court recorder to have a transcript if they want one.
posted by corb at 6:33 PM on July 28, 2013


but I think some reasons are that at the time of the trial a court reporters' transcript contains plenty of errors which aren't rectified until the transcript is certified, which can be weeks or months after the trial

But going by memory?! Without being allowed even to take notes?!? That sounds like a recipe for injustice. Juries should have access to everything that goes by in trial, I would think, to help them make decisions. It seems ludicrous!

Allowing transcript access may also lead to very long deliberations where the jurors are pouring over the entire transcript to find support for whatever argument they may be making in deliberation.

That would be GOOD I would think, for juries to have access to the basis of the reasoning they need to discuss the case, but I also think it's a specious argument. More likely, not having access to a transcript would result in jurors asking each other what was said, or trying to fill in the gaps of memory that plain old momentary human inattention can produce, especially during a very long trial.
posted by JHarris at 6:41 PM on July 28, 2013


I remember being horrified a few years ago when Britain abolished jury trials for certain classes of offense. That 4% statistic horrifies me the same way.

My husband and I almost got picked for a jury a few years ago for a serious criminal case (three counts of different sorts of sexual assault and attempted capital murder) and for all that I strongly believe in my civic responsibility to serve on a jury, I was relieved that I wasn't picked. The words jury nullification never came up, but we were effectively warned against it by some of the prohibitions the judge made during voir dire. One of the points the judge was very strong on was that we had to give the the defendant the benefit of the doubt in a "he said, she said" situation. I'm pretty sure I was struck because I was upfront about not being able to do that, particularly in this case. (The defendant claimed that he'd nearly throttled the victim to death during a consensual S&M game gone wrong. I could tell up front that I wasn't going to find this credible.) A number of people were struck for similar admissions. They had 85 potential jurors on that panel and the last one on the panel (12+1 alternate) was 80. They almost had to go back to the well!

I don't know what they're going to do with sexual assault juries if they can't get people who will follow the law as it's written, but it says something worrying about how the law and common thought on sexual assault have diverged that so many people on that panel had a problem with doing so.
posted by immlass at 6:48 PM on July 28, 2013


But going by memory?! Without being allowed even to take notes?!? That sounds like a recipe for injustice.

It's ironic since we hear more everyday about the unreliability of witness testimony.
posted by homunculus at 7:40 PM on July 28, 2013


The problem with our system is the law itself.
Whoa, let's not jump to conclusions here.
posted by anewnadir at 7:58 PM on July 28, 2013


I've always thought of trial by Jury as another 'check' in the system of balances. As in, the government can pass all the laws they want and the judges can uphold them but if the people decide not to, then the law is worth nothing...

If that isn't the case... then what's the point of the Jury? The Judge says what is and isn't relevant, the Judge explains relevant law, and the Judge could make his/her own ruling based on the same things he/she tells the Jury to observe.

I've only been on a Jury once and the main question was whether or not the defendant 'possessed' a gun. No prints on the gun, and the officer in question couldn't say he ever saw defendant handling a gun. Only that it was in his proximity. I'm afraid of the day when there aren't real people there to say "That isn't enough to prove guilt."
posted by one4themoment at 8:32 PM on July 28, 2013 [1 favorite]


I'm afraid of the day when there aren't real people there to say "That isn't enough to prove guilt."

That's the point of the jury. Regular people look at the evidence and the law, and render a verdict that matches the two. It's not the king and his minions rounding up people they don't like, but your peers passing judgement.

Jury nullification is a dull tool for changing laws. That one jury can stop someone from getting punished under a bad law and go home patting themselves on the back. Meanwhile every other person ensnared by that bad law gets thrown in jail.
posted by gjc at 5:17 AM on July 29, 2013


Juries hear only 4 percent of criminal trials in America.

This is wrong. The article says 4% of charged offenses go to trial. Some are later dropped, some plead to a lesser offense (sometimes so they can testify against others). There aren't 96% bench trials in criminal cases.
posted by Ironmouth at 5:52 AM on July 29, 2013


The power of jury nullification is certainly blunted in the world of plea bargaining, but the jury is always in the back of the prosecutor's mind, and it should be on the defender's mind, too. Right now, criminal prosecution is a matter of betting, bluffing, and bargaining, and the jury is how we "call." This is much more evident in civil cases, where the pressure to settle weighs on both sides as they consider what average citizens might find persuasive.
posted by anotherpanacea at 6:10 AM on July 29, 2013


That one jury can stop someone from getting punished under a bad law and go home patting themselves on the back. Meanwhile every other person ensnared by that bad law gets thrown in jail.

I think the real power of jury nullification is that if it is widespread enough, it can completely blunt the impact of a bad law or make a bad law unenforceable. That, in turn, affects the amount of deals prosecutors cut or if they even choose to pursue a specific case at all.
posted by corb at 7:11 AM on July 29, 2013


I think the real danger of jury nullification is that if it is widespread enough, it can completely blunt the impact of a good law or make a good law unenforceable. That, in turn, undermines the rule of law entirely, which is great if you're working backwards from the conclusion that anarchy is a desirable end state.
posted by tonycpsu at 10:12 AM on July 29, 2013


tonycpsu, if we claim to be a democracy but we can't actually get our fellow citizens to enforce the laws that we've collectively made, then we may be wrong about how democratic those laws were to begin with.

Every other person in the criminal justice system has massive amounts of discretion. From the police officer's decision who to stop, to the prosecutor's decision who to prosecute (and with what charges and resources) to the judge's decisions about evidence and procedures in the court room, there are lots of powerful and elitist professionals who can make or break laws, whether they be bad or good. To then accuse ordinary jury members of some form of special bias seems to miss the point that these are our laws, and we're the ones who ought to be responsible for them.
posted by anotherpanacea at 11:42 AM on July 29, 2013 [1 favorite]


anotherpanacea: "tonycpsu, if we claim to be a democracy but we can't actually get our fellow citizens to enforce the laws that we've collectively made, then we may be wrong about how democratic those laws were to begin with."

We don't claim to be a democracy, we claim to be a federal republic. In such a system, from time to time, legislation passed by a majority vote of our representatives won't match up precisely with what would be passed by a majority vote of the citizens in a referendum. This is by design.

And even if we were a democracy, twelve people serving on a jury does not constitute enough of a quorum of the citizenry to unilaterally refuse to carry out those laws. The proper solution is to change those laws within the democratic process rather than circumventing it with a small sample of the population that is vulnerable to discretionary tampering with the jury selection process.
posted by tonycpsu at 11:54 AM on July 29, 2013 [1 favorite]


We claim to be a democracy and a republic: the republic/democracy distinction is spurious, Latin and Greek for the same thing. And we are in fact a polyarchy, a state with many centers of power and responsibility all committed to trying to follow the democratic ideal.

But the point is moot: we also guarantee a constitutional right to a jury trial, and the possibility of jury nullification is a part of that right.
posted by anotherpanacea at 12:44 PM on July 29, 2013 [2 favorites]


It's not about etymology, it's about accurately characterizing our system of government using terms of art. Our particular instance of a federal republic is democratic, but not in the way your "these are our laws" comment suggests. We are not a direct democracy, so we must be willing to accept temporary imbalances in the preferences of our representatives and the preferences of the people who sent them.

And I'm not arguing against the right to nullification. As I stated over in the Zimmerman thread, I see it as a dangerous and unpatchable exploit in our system, but one that is preferable to all possible ways we could patch it. I just cringe when I see people talking about wanting it to be more "widespread" or recommending it as a general tactic to be used whenever you don't like the law you've been entrusted to rule on.
posted by tonycpsu at 12:56 PM on July 29, 2013


I found this article oddly infuriating with its demands for increased juror participation and responsibility. After years of obediently appearing when summoned for jury duty, I served on a jury for a week last summer and I never want to do it again.

We were prisoners. We were taken out of our lives and made to sit in one of two rooms all day. We could not speak to each other about the case and sometimes were not allowed to speak at all, even in the jury holding room. We were not allowed to take notes. And what made me angriest was that I was forced to learn about a terrible crime in incredible detail and I couldn't discuss it with anyone. I came home every night and cried (at least we weren't sequestered). I had nightmares, crying jags, apathy, depression, and an increased startle reflex for a long time after the trial was over.

When we were sent to deliberate, the legal details and technicalities practically decided our verdict for us. All we were allowed to do was drop the charges from attempted murder in the first degree to attempted murder in the second degree. We checked off and voted on a list of ancillary charges like possession of a firearm and possession of ammunition for that firearm, none of which were really in question. There wasn't much to discuss; the defense had no case and rested without calling witnesses. We deliberated from about 11am to 6:30pm and it only took that long because 1. they brought us lunch and 2. we asked for a transcript of a witness testimony and were brought back to the courtroom to be denied.

We had no say in the sentencing. I was relieved. I'm not remotely qualified to sentence someone. It was hard enough to pass judgment on the defendant. It was an enormous responsibility. It felt like playing God.

I was very grateful that when I received a summons for what was probably the Whitey Bulger trial, I was excused for having served within the past three years. I'm safe for another two years under Massachusetts jury rules. After that, I don't know what I'm going to do.

I believe in being a good citizen. I pay my taxes, I cross at crosswalks, I vote in non-presidential years, I perform regular volunteer work, I know CPR and first aid. But my experience as a juror sucked so much that I'd rather spend a few days in jail next time.

TL;DR: the article is right. The court system is badly broken. But the first thing they need to do is make the juror experience better, not harder.
posted by swerve at 1:10 PM on July 29, 2013 [2 favorites]


Swerve, that's a powerful reflection. Thank you. I sent it to the author and he responded with this:

"The comment is on target. We need more AND better jury work. I talk a lot about this problem throughout the book--but not in the essay. So maybe point him/ her to the book?"

It's kind of expensive right now, sadly. I'll page through it and see if I can find some relevant passages.
posted by anotherpanacea at 2:06 PM on July 29, 2013 [1 favorite]




I came home every night and cried (at least we weren't sequestered). I had nightmares, crying jags, apathy, depression, and an increased startle reflex for a long time after the trial was over.

Me too, though not the startle reflex. And the crime (homicide) we were hearing about happened 10 years ago, and most of the exhibits were as about as non-graphic as you can get.

When we were sent to deliberate,


I was an alternate. I sat through five weeks of trial, bonded with my fellow jurors (even though we couldn't talk about the one thing we all had in common), and had to stay available - able to get to the courthouse within 20 minutes - once deliberations started, in case someone dropped out. Someone did drop out, the first day, and they called us alternates in and picked a name out of a hat. That name was not mine. I nearly cried.

Not being able to go into deliberations is the thing that makes me not want to serve on a jury again. Being an alternate sucks.
posted by rtha at 2:49 PM on July 29, 2013 [1 favorite]


We don't claim to be a democracy, we claim to be a federal republic. In such a system, from time to time, legislation passed by a majority vote of our representatives won't match up precisely with what would be passed by a majority vote of the citizens in a referendum. This is by design.

I hear this from right-wing types from time to time, and it was thick in the air of the Christian private school I went to. It is bollocks.

A republic has no power to be a better system of government than a democracy, because the elected representatives in a republic are still chosen by the people. It's just an extra remove away from the people's direct will, which is supposed to prevent mob rule by supposedly having those electors be educated and/or enlightened. Often, as we can easily see now, they are not. In practice, it just gives outside interests an opportunity to pervert the system, by corrupting the representatives.

What is more, over the history of the United States we've been acknowledging this more and more. We don't let the electoral college decide for themselves who they pick for President anymore, for instance.
posted by JHarris at 4:31 AM on July 30, 2013


JHarris: " I hear this from right-wing types from time to time, and it was thick in the air of the Christian private school I went to. It is bollocks."

I was making a positive statement, not a normative one. The U.S. really is a republic that, by design, does not grant citizens the power to directly vote on policy matters. This is not a disputable fact.

Now, normatively, do I love that outside money corrupts politics, or that the representatives often don't understand the issues they're voting on any better than the average citizen? No. Those things are terrible! Furthermore, and more relevant to the topic of this FPP, do I like the fact that jurisdictions often coerce citizens into carrying out on unjust laws in juries? No, that is also terrible.

But, at some point, if you don't have a better system on offer, you have a duty work within the one you have until there is no option other than revolution, and nobody has, in my estimation, provided a workable blueprint for a more direct democratic system that could work better than what we have.

Oh, there are definitely changes to our system that I would love to see, but they are all specific workarounds to bugs in the current system. Just off the top of my head, I'd love to get rid of the filibuster in the Senate, neutralize gerrymandering by creating multi-member congressional districts, move away from first-past-the-post voting toward some sort of preferential system, roll back the destructive effects of the Citizens United ruling, and fight against the assault on voting rights that's happening in many states including my own.

But do I want to reduce or eliminate the role of Congress entirely and decide policy matters by referendum? I think that way lies madness. The signature gathering process for ballot referenda is perhaps an even more easily corruptible process than buying votes in Congress is, because there are many more points of contact between the corrupting entities and the populace than there are between those same corrupting entities and the politicians that we at least have a nominal right to keep tabs on. This does mean the corrupting entity has to spread their resources out more, but it rarely means they have to go door-to-door when a simple full-page newspaper ad or carefully crafted mailer will suffice.

And, from a practical standpoint, your average citizen really doesn't have enough time to read up on all of the things that go into legislation like the Dodd-Frank Wall Street Reform and Consumer Protection Act or the Patient Protection and Affordable Care Act, whereas members of congress have staffers whose job it is to understand these things. (Again, I'm not saying this works out perfectly, but by all means, make your case that the average citizen in any jurisdiction understands the law better than the people who wrote them.)

But, please don't paint me as someone who loves the current system and thinks it's ideal. That ain't me.
posted by tonycpsu at 7:05 AM on July 30, 2013


The U.S. really is a republic that, by design, does not grant citizens the power to directly vote on policy matters.

You keep using that word. I do not think it means what you think it means. Try polyarchy. Or even polycentricity.

do I like the fact that jurisdictions often coerce citizens into carrying out on unjust laws in juries? No, that is also terrible.

Why would you oppose (or even "cringe" at) jury nullification if you think that (a) the laws are unjust, (b) the laws are not easily changed, and (c) that the right of jury nullification is constitutionally secured? Under those conditions, it certainly looks to most experts like we have a moral duty to nullify unjust laws if we serve on a jury that gives us an opportunity to do so.

It seems like your conception of republican government is both positive and normative. It looks like you're saying we have a duty to obey laws we know are unjust. I disagree.
posted by anotherpanacea at 8:19 AM on July 30, 2013 [1 favorite]


You keep going back to an etymological argument about what republic literally means versus what it's understood to mean when describing systems of government. Our system is a federal republic. It is also a democracy, and a polyarchy, and has polycentric characteristics. These are not mutually exclusive categories.

What we seem to be quibbling over is who has the power in our system, and you'll get no argument from me that the people do not have as much power as they should. I've mentioned many things I support that would shift power back to the people in significant ways. I don't put jury nullification in the same category, because it has been used to undermine good laws just as it's been used to undermine bad ones.

anotherpanacea: "Why would you oppose (or even "cringe" at) jury nullification if you think that (a) the laws are unjust, (b) the laws are not easily changed, and (c) that the right of jury nullification is constitutionally secured? Under those conditions, it certainly looks to most experts like we have a moral duty to nullify unjust laws if we serve on a jury that gives us an opportunity to do so. "

I don't count increased use of jury nullification among the ways we should restore power to the people because (a) it's inherently undemocratic, with twelve people (or perhaps just one determined person) preventing laws passed by our representatives from being exercised, (b) it's not a reliable mechanism to stop those laws -- maybe you'll get a jury that does the morally right thing, but maybe you won't, and (c) it's a mechanism that lessens the societal pressure to change the bad laws by reducing their visibility and creating a false sense of security that the bad law can always be undermined in court.

anotherpanacea: " It seems like your conception of republican government is both positive and normative. It looks like you're saying we have a duty to obey laws we know are unjust. I disagree."

We have a duty to change the bad laws with legislation or judicial action. If that doesn't work, we then have a duty to get out in the streets and protest peacefully, engage in civil disobedience, etc. When that doesn't work, I'd argue violent protest is actually more morally justified than jury nullification because it's more of an overt and honest challenge to the bad law, and one that doesn't depend on the discretion of whatever twelve people end up on the jury. The conflict is out in the open, and we can have the fight honestly, not covertly.
posted by tonycpsu at 8:47 AM on July 30, 2013


Our system is a federal republic. It is also a democracy, and a polyarchy, and has polycentric characteristics. These are not mutually exclusive categories.

I'm actually trying to tell you that, as a term of art, "republic" does not designate representational forms of government. That is a pseudo-definition popularized by misinformed statists with an anti-progressive agenda. We do live in a republic, but not because we elect representatives: we live in a republic because (or at least to the extent to which) we do not live in a monarchy or a hereditary aristocracy.

I don't count increased use of jury nullification among the ways we should restore power to the people because

I guess you should read the article, then. I don't think these objections are quite as puissant as you make them out to be, and I don't think your particular model of mass social action is viable, certainly without re-integrating citizens into the fabric of the law and massively deprofessionalizing the criminal justice system.

When that doesn't work, I'd argue violent protest is actually more morally justified than jury nullification because it's more of an overt and honest challenge to the bad law, and one that doesn't depend on the discretion of whatever twelve people end up on the jury. The conflict is out in the open, and we can have the fight honestly, not covertly.

Looking at the Zimmerman verdict, I don't see anything about juries that is covert. There are lots of laws that juries just decided they weren't going to enforce any more, and so they became irrelevant (i.e. fornication, and even sodomy.)

But if you think that violent protest is better than eliminating prosecutorial discretion and making unjust laws unenforceable, you may be coming from such a significantly different perspective that we'd need to go back and trace out some first principles. In my view, violent protest has all the same anti-majoritarian implications as jury nullification, plus it tends to secure state authority and bolster the status quo by justifying police, or else it dissolves the civic bonds that make concerted social change possible. But then, I tend to think the various non-violent "color revolutions" have been superior to situations like Syria or Libya where the violence dissolves the state.

The basic problem of social movements is how to reign in their violent capacities, and non-violence or principled violence has always been the way this is managed. So for instance, if you looked at Egypt, they would attack a police officer while he was on a motorcycle, but then offer him medical treatment as soon as he was unseated: the idea was that the machine and not the man was the enemy. Similar principles guide Black Bloc folks, with varying (though mostly low) degrees of success.
posted by anotherpanacea at 9:14 AM on July 30, 2013 [2 favorites]


anotherpanacea: "I'm actually trying to tell you that, as a term of art, "republic" does not designate representational forms of government. That is a pseudo-definition popularized by misinformed statists with an anti-progressive agenda."

Then your beef is with them, and perhaps with Wikipedia, because the word today is understood to be an umbrella term that encompasses nearly any form of government that isn't a monarchy:
Today the term republic still most commonly means a system of government which derives its power from the people rather than from another basis, such as heredity or divine right. This remains the primary definition of republic in most contexts.
You can stand athwart what you see as language creep yelling "STOP!", but I'm not really interested in having that fight.

anotherpanacea: "I guess you should read the article, then."

I really do not appreciate your blind and incorrect insinuation that I didn't read the article, and if that's the kind of tone you're going to be taking if we continue, I'll show myself out. I did read it, and I wholeheartedly agree with its recommendations, none of which have anything to do with nullification. Of course a jury can never nullify a verdict for a case that never goes to trial, but your suggestion that because I take issue with widespread use of jury nullification I must not have read the article or must be hostile toward its conclusions is lazy and wrongheaded.

anotherpanacea: "Looking at the Zimmerman verdict, I don't see anything about juries that is covert."

Right, because the presence of one controversial murder trial that received 24/7 media coverage on every news channel is a data point that can accurately be extrapolated from to prove that the public is acutely aware of the many miscarriages of justice that occur on a daily basis in thousands of court rooms around the country. You actually believe this?

anotherpanacea: "There are lots of laws that juries just decided they weren't going to enforce any more, and so they became irrelevant (i.e. fornication, and even sodomy.) "

Yeah, and it turns out sodomy laws being on the books is still an actual problem that causes harm to people. The right answer is to remove those bad laws from the books, not to consider them de facto irrelevant and work around them with the crude instrument of discretionary jury nullification.

anotherpanacea: "But then, I tend to think the various non-violent "color revolutions" have been superior to situations like Syria or Libya where the violence dissolves the state. "

I agree that non-violence is superior to violence in most cases, but if my choices are "confront the injustice directly" versus "support a mechanism that allows people to selectively apply their own interpretation of justice, in the shadows, and in very small, corruptible groups", I'm choosing direct confrontation. It shines more light on the issue and heightens the contradictions in a far more visible manner than simply telling citizens they can pick and choose who gets their convictions nullified.
posted by tonycpsu at 10:09 AM on July 30, 2013


Tony, not only have you demonstrated you haven't read the article, you've demonstrated that you're not even reading my comments. Your quote from Wikipedia mirrors exactly what I said in the part that you conveniently failed to quote:

Here's me: we live in a republic because (or at least to the extent to which) we do not live in a monarchy or a hereditary aristocracy.

Here's Wikipedia: Today the term republic still most commonly means a system of government which derives its power from the people rather than from another basis, such as heredity or divine right.

I don't know man. What are you even doing, other than giving our alma mater a bad name?
posted by anotherpanacea at 10:23 AM on July 30, 2013


Yeah, and it turns out sodomy laws being on the books is still an actual problem that causes harm to people. The right answer is to remove those bad laws from the books, not to consider them de facto irrelevant and work around them with the crude instrument of discretionary jury nullification.

Sometimes I wonder what it is about our political system that produces so much polarization. Seriously, guys, you're both right. We do need to get rid of harmful laws on the books AND in the meantime until we do that, jury nullification is a great option to keep people from being harmed by unjust laws.
posted by corb at 10:25 AM on July 30, 2013


anotherpanacea: "Tony, not only have you demonstrated you haven't read the article"

For fuck's sake, dude, you do not get to tell me whether I read the article or not! If you want to try to make a case that I'm somehow misunderstanding the intent of the article, then go right ahead, but do not tell me what I did or did not read.

You seem to be implying that if I favor the reforms specifically called out in the article then I must also accept nullification, even though it shows up nowhere in the text or subtext of the article. The article argues for a more participatory democracy with more cases to going to trial so that juries can render verdicts. I want that! You want that! Where we disagree is on the issue of nullification, which the article does not discuss in even the most roundabout way. The specific reforms mentioned (juries questioning witnesses, reducing plea deals, and jury sentencing) are all things that empower juries to take a more active role, but the responsibility is still on them to deliver a verdict based on the law, not what they might want the law to be.

anotherpanacea: "Here's me: we live in a republic because (or at least to the extent to which) we do not live in a monarchy or a hereditary aristocracy. Here's Wikipedia: Today the term republic still most commonly means a system of government which derives its power from the people rather than from another basis, such as heredity or divine right."

This derail started when I tried to use the word "republic" (with our elected representatives) to distinguish from direct democracy. I was not precise in that I said "we are not a democracy" instead of "we are not a direct democracy", but that was my intent. I tried to correct this in my first response, but you keep trying to characterize this as me not understanding the terms rather than failing to include the "direct" qualifier from the beginning.

anotherpanacea: "I don't know man. What are you even doing, other than giving our alma mater a bad name?"

I don't know, man, what are you doing other than demonstrating you don't have a valid argument on the merits by resorting to ad hominems?
posted by tonycpsu at 10:54 AM on July 30, 2013


corb: "Seriously, guys, you're both right. We do need to get rid of harmful laws on the books AND in the meantime until we do that, jury nullification is a great option to keep people from being harmed by unjust laws."

I disagree in all but the most exceptional cases. Nullification takes the heat off of legislators to do their fucking jobs and get the bad laws off the books. It's a shortcut; a cop-out. It lets unjust acquittals and convictions happen against the stated preferences of the people as codified in law. If those things are out of sync, then the law must sync up to what the people want, not be selectively enforced.
posted by tonycpsu at 10:57 AM on July 30, 2013


So, first, I'm sorry. I was being a jerk in that last line about PSU. I was irritated by your insistence at correcting me, when I'd already made the point you seem to think I had missed. You've been doing it from the start (by insisting that "democracy" necessarily implies "direct democracy" and is contradicted in some way by "republic" or "representative republic") and though that was rude of you, I shouldn't have responded in kind.

you do not get to tell me whether I read the article or not! If you want to try to make a case that I'm somehow misunderstanding the intent of the article, then go right ahead, but do not tell me what I did or did not read.

I suppose this is something like the difference between "hearing" and "listening." Perhaps you did peruse the article, but you don't seem to have paid it the attention it deserves, and your gloss on it suggests your reading was cursory rather than close. While Dzur never uses the phrase "nullification" I can tell you that's because he doesn't think it deserves that special status; rather, it's part of what he thinks juries should and always have been in the business of doing. Here is one of several relevant passages from the article that bears on our conversation about jury nullification:

Cultivating the public nature of trials, therefore, would reduce the social distance between lay citizen and legal domain, a distance that has enabled overly harsh sentencing policy over the last generation.

While the verdict of a single trial does not make policy, a pattern of verdicts regarding the same offense does. This pattern in itself is policy even if the relevant legislative or executive bodies do not react by changing the law or its application. Jury decisions in the aggregate can be seen as straightforward inputs to a policy process that incrementally adjusts to shifts in public opinion.


In other words: jury decisions are one of the ways that public opinion is instantiated, it's one of the most important spaces where citizens confront the laws their representatives have made in close quarters and with enough fellow citizens to reflect seriously about ethics and justice.

This derail started when I tried to use the word "republic" (with our elected representatives) to distinguish from direct democracy. I was not precise in that I said "we are not a democracy" instead of "we are not a direct democracy", but that was my intent.

The fact that you're still saying this suggests that you think a republic necessarily has elected representatives. This is not the case; a direct democracy would still be a republic.

I disagree in all but the most exceptional cases. Nullification takes the heat off of legislators to do their fucking jobs and get the bad laws off the books. It's a shortcut; a cop-out.

The problem is that our disagreement about jury nullification is tied to this question of positive and normative descriptions of our political regime. It's your insistence that the phrase "federal republic" somehow has important implications for the way that we try to change the laws that is driving your claim that the legislative process is the best way to enact change. I've laid out the objections to that assertion repeatedly and you keep on ignoring it, often without even acknowledging I have made it. See here, for instance. What's worse, it looks like you've laid out the reasons why the legislative approach will likely fail somehow without acknowledging that that's what you've said.

While I think it's fine to disagree on these things in practice, I am frustrated that you seem to agree on all of the premises but refuse to accept the conclusion entailed.

If we live in an often elitist society where most politicians have "safe seats" and few citizen inputs are seriously considered, I don't see why we should worry so much about "taking the heat off legislators" while our fellow citizens are incarcerated at the highest rates in the world. That assumes that mass incarceration is something we can afford to take our time to address. But that's not true: mass incarceration is a crisis, it demands that we should fight on many, many fronts at the same time.

I'd say that it is citizens, especially jurors, who deserve to "take the heat" and should "do their fucking jobs" by exercising a strong sense of judgment about both facts and laws. This wouldn't be a "short cut." Rather, the reverse: it would entail taking responsibility for the punishments our society is meting out. Our representatives are doing great harm to our fellow citizens. We owe it to them to take responsibility, to have "dirty hands" if we wish to perpetuate the injustice of the world we have inherited, rather than wash our hands of the matter and leave it to prosecutors and judges. Anything else is a cop-out.
posted by anotherpanacea at 1:55 PM on July 30, 2013


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