Twelve Absent Men
Rebuilding the American Jury
“In real life the jury decides the ending.” So proclaims an American Bar Association poster featuring a close-up of Harrison Ford promoting, indeed advertising, jury service. It seems a desperate measure, if not also an understandable one. For a wide swath of the public, serving on a jury is a detested duty.
But what novel was brought for the waiting room, what news stories glanced at in the paper, what television shows watched the night before? Leisure time is stuffed with crime-and-punishment narratives unfolding night after night in TV versions of Las Vegas, Miami, and New York. The shows are anchored less by character and action than by extremely mundane details of process: how crime scenes are investigated, how the accused are questioned, and how cases are built. Just like an ideal juror, viewers are engrossed in microscopic facts, concerned about chains of evidence, and keen to spot patterns that could indicate guilt or innocence.
Yet viewers who do nothing but imagine what it would be like to be part of this adventure avoid at all costs going on it themselves.
Would it hinder enjoyment to step outside this virtual world, to listen to non-scripted voices, see unprepared faces, and try to understand stories without clear plot lines or obvious heroes and villains, stories that have not been market tested? Never tiring of thinking about fictional crime, fictional criminal law, and fictional procedures and technicalities, is the jump into a nonfiction narrative where one has a decisive role a step too far?
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The problem is that we are out of practice. Lay citizens no longer have opportunities to play decisive roles in our justice system. Judicial business is handled every day in most courthouses, but weeks can pass without a jury being empanelled.
And though consistently given high approval ratings as an institution in public opinion surveys, the jury feels dead to many who do serve. When it does actually take to court, the jury often seems an appendage of the criminal justice administrative complex, netted in formalities, rules, and procedures. The legal action, at least up to the time of deliberation, is elsewhere. Writing about an impressive federal courthouse in Boston that opened in 1998, legal scholar Judith Resnik notes that only seven or eight trials were held in each of the building’s courts in its inaugural year, and the number has since declined. The lights are off as much as they are on in trial courts across the country.
Until the early 20th century, the jury was the standard way Americans handled criminal cases, but today we operate largely without it. It has been supplanted by plea agreements, settlements, summary judgments, and other non-trial forums that are usually more efficient and cost-effective in the short term. In addition to cost and efficiency, justice officials worry about juror competence in the face of scientific and technical evidence and expert testimony, further diminishing the opportunity for everyday people to serve.
Lay citizens no longer have opportunities to play decisive roles in our justice system.
The result is that juries in the United States today hear a small fraction of cases. In 2005 the Bureau of Justice Statistics reported that juries heard 4 percent of all alleged criminal offenses brought before federal courts. State courts match this trend. Legal scholars Brian J. Ostrom, Shauna M. Strickland, and Paula L. Hannaford-Agor discovered a 15 percent decline in total criminal jury trials in state courts over the last 30 years, compared with a 10 percent decline in criminal bench trials, in which a judge issues the verdict. They also found a 44 percent decline in civil jury trials compared with a 21 percent decline in civil bench trials.
The jury’s decline has not been taken lightly by many legal academics, court observers, and court professionals. Massachusetts Federal District Court Judge William G. Young argues that the evaporation of the jury trial undermines core constitutional protections for criminal defendants: those who “request the jury trial guaranteed them under the United States Constitution” may face a trial tax—“savage sentences” as much as five times longer than they would have faced had they accepted a plea bargain. The criminal justice system’s acquiescence in the jury’s decline, Young writes, represents the rejection of a “stunning experiment in direct popular rule.” As Robert P. Burns keenly notes in The Death of the American Trial (2009), what is at stake is the difference between a private and technocratic system of criminal justice and an open, public system: “This plenary public dramatic event has been replaced by various pretrial and post-trial procedures, largely conducted behind closed doors and often in a technical language far from ordinary modes of speech.”
The tendency is to expect as little as possible from citizens. Yet there is evidence that participatory decision-making bodies such as the jury have not exhausted their appeal either in the legal domain or in the broader social and political realm, especially when these bodies give people an opportunity to express their voice, take action, and have impact.
Consider restorative justice, an influential reform movement within criminal justice. Its advocates believe mainstream courts fail to foster the kind of interaction between victims, offenders, and community representatives that helps to “restore” the parties affected by a harmful action. In response these advocates have established programs in every state using four main models. Victim-offender mediation, the most common, involves a structured face-to-face dialogue facilitated by a trained mediator who is typically a volunteer rather than a court professional. Also widely used are community boards, in which a small group of citizens meets with victims and offenders. Less common are family conferencing and circle sentencing, in which victims, offenders, and supporters such as family and friends are brought together to discuss the offense and decide how to make amends and move forward.
Consider too the increasing attraction of citizens’ juries. Citizens’ juries assemble representative groups of lay citizens to deliberate about policy problems, normally quite concrete and specific, often in highly divisive areas such as urban planning and environmental protection. The jurors draw on expert analysis, deliberate together, and eventually issue a report that recommends a course of action for public authorities.
In Oregon, for example, citizens’ juries have been organized to evaluate a number of ballot measures, such as one proposing mandatory minimum sentences for certain repeat DUI and sex offenders and another permitting the distribution of medical marijuana. The result of the five-day-long sessions involving randomly selected and demographically adjusted groups of 24 citizens is a set of key findings, which are published in a “citizens’ statement” included in the official Oregon voters’ pamphlet.
Like restorative justice programs, citizens’ juries aim to foster a space of reflective dialogue and citizen interaction often absent in electoral politics and in formal government institutions. Similarly, the indirect goal of citizens’ juries is to regenerate trust in public decision-making, officials, and agencies. By working in proximity to these public actors and with each other, citizens come to better understand the constraints on policymaking and the difficulties of collective action.
But unlike trial juries, restorative justice programs and citizens’ juries hold no power other than that granted at the discretion of their organizers. When, where, and how long they meet; who participates; what they discuss; and what they are to produce are all established by external authorities, which are sometimes out of sight and poorly understood by participants. Whether the body will meet more than once or will have any sort of institutional history or future is often unclear. Such weaknesses are not lost on the participants, who, wise to the operations of real power, engage anyway for lack of any better option.
Are these experiments just very long echoes of a past in which the jury played a larger role in formal justice and permeated the informal patterns of group life? (Alexis de Tocqueville saw the jury as so deeply rooted in American culture that its norms spread out of the courtroom and into the conflict resolution of children playing in the street.) Or perhaps new forms of civic participation are more than historical echoes. Maybe there is something persistently relevant about the jury for a people wishing to govern themselves.
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The 18th century rationale that fixed juries in the Constitution still provides the framework for legal theories of the jury today. Specifically, juries check biased or wanton officials and represent non-elite interests and community values in the judicial branch.
But the jury does more than enable representation and check bias. Participatory democratic institutions also perform a constructive—as distinct from representative—moral function: they force widespread sobriety about the real world of law and order. While there are other ways for political cultures to sober up—via social movements, civic associations and organizations, political parties and campaigns, charismatic public personalities—institutions such as the jury are necessary because of their staying power and because of their ability to challenge both official and lay attitudes regarding the law. This sobering quality of juries is particularly needed now.
Separation from the reality of suffering human beings is a problem of public morality.
The phrase “sobering up” implies a conquering of personal overindulgence, but the issue here is not individual moral failing. It is, rather, carelessness for others. Modern carelessness for others, as sociologists tell us, is a function neither of innate self-interest nor of inadequate socialization, but rather of forces that structure social life and patterns of action such that links to others and our responsibility for them are invisible. The separation from a reality of suffering human beings, the inability to see or feel what is happening to them, is a problem of public and not private morality.
Lay participation in criminal justice is needed because it brings otherwise attenuated people into contact with human suffering, draws attention to the ways laws and policies and institutional structures prolong that suffering, and makes possible—though does not guarantee—greater awareness among participants of their own responsibility for laws and policies and structures that treat people humanely. Participatory institutions are our best chance at breaking through what philosopher Margaret Urban Walker aptly calls “morally significant nonperception.” Evasion of concern for others, the dismissal of some as less than fully human, is the first barrier to be surmounted on the way to justice.
This evasion can be seen even in the humane attempts to overcome it. Two decades ago the political theorist Judith Shklar threw down what she considered a “first principle” of liberal public morality. Cruelty, Shklar writes in her famous essay “The Liberalism of Fear,” “is the deliberate infliction of physical, and secondarily emotional, pain upon a weaker person or group by stronger ones in order to achieve some end,” and “when we think politically, we are afraid not only for ourselves but for our fellow citizens as well.” It is this first principle, she argues, that has always led liberals to an “assumption, amply justified by every page of political history . . . that some agents of government will behave lawlessly and brutally in small or big ways most of the time unless they are prevented from doing so.”
Shklar recognizes that the threat of punishment for lawbreaking is an “unavoidable evil, to be controlled in its scope and modified by legally enforced rules of fairness, so that arbitrariness not be added to the minimum of fear required for law enforcement.” That said, the state must minimize actual pain and suffering among citizens. This “liberalism of fear” is, in her view, in danger of being forgotten in the midst of more elaborate schemes of redistributive justice and abstract discussions of civic virtue and citizen participation put forward by her fellow political theorists.
What is eerie about Shklar’s well-meant analysis is not only that it fails to address how moral sensitivity to pain and suffering imposed or allowed by government action develops; she assumes that fear of cruelty is obvious and ever present. Rather, it is how a liberalism of fear could be presumed to be a default category of public moral awareness at a time when more and more cruelty was being ignored.
The America of 1989, the year Shklar’s essay was published, had been on a twenty-year-long trajectory that would eventually put it at the top of the list of the world’s most punitive states. Just four years later, in 1993, Washington State would escalate the trend with its turn to three-strikes mandatory minimum sentencing laws that ensured life imprisonment for a third felony offense, a reform made notorious by the even more severe version California voted into law in 1994. Such schemes led to foreseeable outcomes. Nonviolent offenders receive life sentences; those committing the same acts but in different sequences face variable sentences; and the liability for a third offense can shift wildly between a liberal municipality such as San Francisco and a conservative one such as San Diego. How can anxious liberals miss such obvious acts of official arbitrariness and cruelty?
What grows clearer every year is that the incarcerating state is not feared. It is seen as a palliative to a fear of violent crime, a fear mobilized by political parties and candidates desperate to find points of contact with a distant and disaffected electorate. While the state has not prevented job loss, workplace disempowerment, spiraling health care costs, and the disintegration of educational institutions from kindergarten to university, those seeking official positions can gain credibility by promising to get tough on crime. What such rhetoric implies may be even more significant, namely that the state is “for” the law abiding and “against” offenders, that even the most economically insecure among the law-abiding have a robust civic status in comparison to the lawbreakers.
To say that Americans lack a sober fear of this swollen system of cruelty—and, indeed, use it as a mode of making social distinctions—is not to discount the pain and suffering of the victims of violent crime. It is only to draw attention to something hiding in plain sight. The public is both inured to and invested in this reality that is seen too much and too little.
We see it constantly in the virtual world of criminal justice television, where hard treatment, shame, and degradation of prisoners are frequently portrayed as added consequences of breaking the rules and rarely as civic problems. We favor stories involving what Nils Christie has called ideal offenders and victims, the overpoweringly strong, morally bankrupt, and remorseless against the weak, respectable, and blameless. Criminologists such as Christie are often frustrated by their inability to communicate with citizens and policymakers attached to such myths. “Fragmented societies with isolated individuals,” Christie writes, “are ideal for creating ideal victims and ideal offenders.” Only in “situations . . . where [citizens] come close to the offender, where they get to know him personally” can “realistic and multi-dimensional evaluation” take place and lead to appropriate sanctions.
More trials and less plea bargaining would spread civic responsibility for punishment.
That is why we need institutional practices that challenge men and women to strain against ideas of crime and punishment created for them in virtual worlds. The jury does this by presenting competing narratives and offering proximity to three-dimensional human beings capable of suffering.
A juror treats human beings attentively even while embedded within an institution that privileges rationalized procedures. Not advocates, prosecutors, or judges, jurors are independent of court processes and organizational norms while also being charged with judicial responsibility of the highest order. Their presence helps close the social distance between the parties and the court. The juror, who contributes to what is a political, juridical, and moral decision, becomes attuned to others in a way that triggers responsibility for them. Burns notes how jurors’ “intense encounter with the evidence” helps them engage in self-criticism of the “overgeneralized scripts” about crime and criminal offenders they may have brought with them into the courtroom.
This intense encounter also has effects on punishment. Consider the punisher’s “dirty hands.” Though we do not often talk in this way, incarceration—our primary mode of punishment—delivers specific increments of pain to convicted offenders. If, as I believe, the structure and operation of American criminal justice administration permit it to both conceal this essential nature of punishment and allow officials and citizens alike to evade responsibility for it, then the value of the jury is in casting light on the permanent dirtiness of punishment. By providing a public and contemplative space within courtrooms, the jury democratizes penal dirty hands and makes them transparent. The larger the percentage of criminal cases heard by the jury trial, the greater the democratization of penal dirty hands.
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Admittedly, one must be sober about the sobering potential of the contemporary criminal jury. As we have seen, it now hears only 4 percent of criminal cases; it is crouched inside a bureaucratically confining institution; it is unlovely and unloved.
The tasks for reformers are clear but difficult: reconstruct the jury and restore its place in the criminal justice system.
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. A note-taking juror would be better equipped to follow complex legal narratives, comprehend detailed presentations of evidence, and understand the judge’s instructions. A juror able to ask questions could clarify testimony, correct misperceptions, and provide feedback to the judge and lawyers about whether essential information had been successfully conveyed. For these reasons a majority of American courts have been amenable to experimenting with such reforms. These are not just about enabling individual jurors to be more effective but about maintaining the American jury, full stop. “Jurors must be allowed greater roles in trials if juries are to remain up to the task of resolving today’s disputes and if the institution of trial by jury is to retain its vitality,” Arizona judge B. Michael Dann says.
A second kind of reform reasserts the necessity of jury trials by curtailing plea bargaining. Viewed unfavorably by public opinion and subject to much scholarly criticism, plea bargaining has nevertheless been the normal way of disposing nearly all criminal cases in the United States for more than a century. It has received increased scrutiny in recent years as both jury and bench trials have shrunk to near extinction. Critics argue that more trials and less bargaining would make punishment more deliberate and spread civic responsibility for it. While unappealing to some court professionals because it would complicate the efficient administration of justice and lessen their control over trials, limiting plea bargaining would help to reshape the court as a place of public reflection. Some reformers advocate abolishing plea bargaining in felony cases, while others press for minor measures such as greater judicial overview of the process and caps on the sentence reductions possible for given offenses.
Finally, a more controversial reform involves an increased role for juries in sentencing. Though favored by a small minority of legal academics and court professionals, jury sentencing authority has attracted increased attention in the last decade as the Supreme Court has held that when the facts of a case may enhance a sentence beyond a statutory maximum, there must an opportunity for trial by jury. By affirming jury authority in these and other such cases, the nation’s highest court compels us to ask about how far jury authority over sentencing could reach.
Currently only six states permit jury sentencing for non-capital offenses, typically under a process known as a bifurcation. The jury first renders the verdict and then reconvenes to consider and hand down a sentence. Because jury sentencing is required for the death penalty and is a component of civil jury trials, in which juries can assess compensatory and punitive damages, advocates of jury sentencing argue that more widespread use would make the justice system more coherent. Jury involvement would also make sentencing more public, which is of no small value. Procedural justice studies and other context-sensitive surveys consistently show that citizens with more knowledge of particular offenders and their circumstances choose to apply moderate, not harsh, sentences. 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.
More mundane changes should accompany any attempt to reinvigorate the jury. Because of the modern jury trial’s extensive procedures—its many rules of evidence and exclusion, for example—it is both expensive and time consuming. Prospective reformers on the left and right attuned to the human costs of the penal state will need to address procedural reforms, however knotty these prove to be, and seek to clarify and streamline court process.
In these ways, the traditional jury can become a more robust public space, like restorative justice and citizens’ juries have been, while also gaining standing within the formal legal domain. This is not to suggest that a reconstructed and revived jury should take the place of restorative justice programs. We need to think about how different forums might work together in challenging the penal state. Reformers experimenting with restorative justice, especially for nonviolent and youth offenders, might find useful allies among jury advocates. Rebuilding the jury can be a core part of a long-term effort whereby court professionals and criminal justice reformers share responsibility with citizens and encourage greater sobriety in the public discourse of crime and punishment.